Who Else Owns This Fire Loss?

Jeffery H. Warren, Ph.D., P.E., CSP*

Subrogation of fire losses is a big business. To be successful there are some basic rules that when followed will help ensure a more successful outcome.

• Prompt Recognition of the need to investigate: Most fire losses are predictable and preventable. All have a cause. Most have multiple causes. Always ask, "Who else owns this loss?". Most subrogation is missed because someone failed to recognize it.
• Investigate the fire quickly: Time changes everything. Witnesses' memories fade. The scene gets disturbed. If possible, let your origin investigator or engineer arrive on the scene first.
• Make sure your investigators use NFPA 921:NFPA 921 is the only peer reviewed fire investigation publication. With the recent Supreme Court rulings of Daubert and Kuhmo Tire, utilization of a peer-reviewed scientific method is more critical than ever when it comes time to testify.
• Document the scene and interview witnesses:There is plenty of time later to reach conclusions and assign responsibility. Photographs are cheap. You cannot take too many, but you can take too few. Ask your expert to create a photographic study that shows the photographs in the order they were taken. The photographs will tell a story if the expert uses a mental movie concept when investigating the fire.
• Locate the origin: There is no need to look for a cause of the fire in an area where the fire did not start. Utilize witness statements and evidence at the scene to determine where the fire started; then hire an engineer to analyze the cause.
• Determine the cause: Remember that the cause of the fire or explosion, the cause of the spread, the cause of the property damage and the cause of the bodily injury or harm are often different. With different causes, different parties may be responsible. Keep asking, "Who Else Owns This Loss?"
• Secure the Evidence: Put all parties on notice before disturbing or removing the evidence. After inspecting and agreeing on the evidence to keep, it should be tagged, itemized and moved to an agreed upon secure site by the expert working for the party that owns the evidence. Down the road, things that did not start the fire are as important as those things that did. Secure suspect items that are in or near the area of origin.
• Utilize an Involvement Matrix to understand responsibility. Make a grid. Across the top list all parties involved. Down the left side list all of the causes. Then fill in the blocks under each party. Fill with a black rectangle next to each cause if the party had a primary involvement and a gray box if the party had a secondary involvement (knew or should have known about the cause and taken action to prevent it). In the end, the matrix will illustrate the involvement of each party. It is easy for a jury to understand that "He who has the most black or gray loses."

The Warren Group has experience in analyzing the cause of fires and explosions and effectively using the Involvement Matrix to analyze actions of parties involved to understand responsibility.

Fire losses often result in damage to machinery and equipment from the heat, smoke or water. The enclosed Machinery & Equipment Damage Appraisal Guideline #100 and Guideline #101 provide guidelines for identifying the type of damage and method of repair.

* Dr. Warren is also a Certified Fire and Explosion Investigator and a Certified Fire Investigator Instructor through the National Association of Fire Investigators.