Subrogation in Fire Investigations: Advantages of Protocols and a Scientific Approach

Fire scene investigation can be challenging and complex, especially when it involves matters of subrogation. Wouldn’t it be comforting to know that, beyond a shadow of a doubt, the fire investigator assigned to your case was conducting a complete and thorough scene examination?

Before international guidelines were in place, fire and explosion investigations were more closely aligned with the art of investigation, rather than art of science. Investigators relied on either what they were taught by leaders in the fire investigation profession or through simple trial and error. In some cases, as it pertains to origin, those methods were later considered myths — as they were not rooted in science.

Today, through the use of guidelines, scientific methods and protocols, it is much easier for a judge to accept an investigator’s opinion and/or evidence presented as trier of fact if the scene was conducted using such measures, and even more so when dealing with a subrogated claim.

The development of guidelines

By 1992, the National Fire Protection Agency (NFPA) in the United States published a document that still serves as a guide for fire and explosion investigations — NFPA 921. A complimentary document NFPA 1033 was also created as standards for professional qualifications of fire investigators. Both are internationally accepted in many locations as best practices, including the UK, and it is printed in five different languages worldwide including Korean, Spanish, French and Chinese.

The Institute of Fire Engineers, headquartered in Stratford upon Avon, with numerous locations worldwide, uses both NFPA documents as part of their Level 5 program — an advanced class designed for fire officers or crime scene officers involved in investigating and reporting fire incidents.

Utilising protocols

NFPA 1033 created the mandatory Job Performance Requirements (JPRs), or essentially, the specific outline used for the protocol relating to an investigator’s performance. Following these steps can ensure the investigator addresses all the issues associated with the investigation. It’s been around since 1977 in one form or another, but only in the last 20 years or so, had any real influence. By 2009, word had travelled, and it created monumental impact by establishing what is now considered a form of universal guidelines and investigation protocols. Every updated publication of the document since that time has merely just compounded on this impact.

NFPA 921 comes into play as a playbook of how to properly use the scientific method, and what steps need to occur to properly conduct the investigation. This document is more than 400 pages of scientific and engineering discussion compiled by many professionals in the fire and explosion profession. The intent to ensure all fire and explosion investigations are appropriately and scientifically conducted.

From 1992 to the present, NFPA 921 has been revised through a consensus of industry professionals ranging from insurance, to fire agencies, to law enforcement and private/public fire investigators and many others. This document tells professionals how to properly perform their investigation in detail. It was not designed to be a comprehensive engineering or scientific text, but rather to further eliminate what in the early days of fire and explosion investigations was considered junk science, with “…a systematic, working framework by which effective fire and explosion investigations and origin and cause analysis can be accomplished.”

Using the scientific approach

The scientific method is a seven-part system that, when followed, ensures the investigative process is complete and defensible. Consider if, for instance, the origin of the fire was inaccurately identified. It is likely the cause would then be equally misidentified. A client retains professional fire and explosion investigators to obtain their independent opinion and/or conclusion. That opinion must be explained to an acceptable level of certainty to rise to the level of an expert opinion as determined by a judge.

Per NFPA 921, “The goal of all investigators is to arrive at an accurate determination related to the origin, cause, fire spread, and responsibility for the incident.” Not following the protocol and scientific method sets one up for a potential improper scene evaluation, analysis and documentation.

Determining subrogation

As anyone associated with the insurance industry understands, subrogation can sometimes be a bit of a chess match. A professional investigator that adhered to the standards of NFPA 1033 and the guidance of NFPA 921 will be more prepared to provide a comprehensive, accurate, detailed account of their evidence and findings, and moreover, ones that are easily understood in court. The scientific method provides a road map for the investigator to follow and stay the course.

The scientific method and the protocols that reside within these documents are factual and credible. They have been adopted in many international locations and are considered standards. By design, when used properly, they can provide the trier of fact to accept not only the investigator as an expert to the court but also the evidence.

Author: Larry Canary, Vice President Fire and Explosion, Envista Forensics





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