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Subrogation Advantages of a Protocol and Use of the Scientific Approach In Fire and Explosion Investigations

Special Reports

by Larry Canary

A little background is needed to place this important topic in proper context. Prior to 1992, Fire & Explosion investigations were more closely aligned with the art of Investigations, rather than actual science. Investigators relied on what they were taught by those revered in the fire investigation profession or through trial and error. Since 1992, the National Fire Protection Association (NFPA) published a document called NFPA 921 Guide for Fire & Explosion Investigations. A complimentary document to NFPA 921 was NFPA 1033, Standard for Professional Qualifications for Fire Investigator. Although both the afore mentioned documents are orchestrated by the United States, they are internationally accepted in many locations and seen as a Best Practice document. To place a finer point on these documents being internationally accepted, The Institute of Fire Engineering in the UK and the Fire Service College, referenced as recommended reading NFPA 921 and 1033 as part of their Level 5 Award in Fire Investigation, dated 10 August 2017. Level 5 Award in Fire Investigations, a more advanced version from Level 2, was designed for fire officers, scenes of crimes officers and others involved in investigating and reporting on incidents involving fires.

NFPA 1033 has been around since 1977 in one form or another, but has only recently, since about 1987 had any real influence. In 2009, however, NFPA 1033 truly had a monumental impact and every publication of the document since that time has compounded on that impact. What is that monumental impact, the requirement for Fire & Explosion investigators to utilise a protocol basis for their investigations. Nevertheless, that was not the only impact – NFPA 1033 identified 13 different and specific knowledge requirements to maintain above the high school level. Then in the 2014 edition of NFPA 1033, the list of 13 knowledge-based topics grew to 16.

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

Now to present day…What does any of this have to do with Subrogation? LOTS!

When a Fire Investigator is assigned to conduct a scene examination, wouldn’t it be comforting if you knew beyond doubt that your investigator was conducting a complete and thorough scene examination? NFPA 1033 sets forth the mandatory Job Performance Requirements (JPRs) which set up a specific protocol of performance requirements. Following this protocol ensures the investigator addresses all the issues associated with the investigation.

However, one may ask, okay, use the protocol, how? This is where NFPA 921 comes into play. It is a playbook of how to properly use the scientific method. This document is over 300 pages of scientific and engineering discussion compiled by many professionals in the fire & explosion profession with the intent to ensure all fire and explosion investigations are appropriately and scientifically conducted.

The scientific method is a 7 part system that when followed, ensures the investigative process is complete and defensible. Consider this…If the origin of the fire is inaccurately identified, then it is likely the cause will be equally misidentified. A client retains a professional fire & explosion investigator to obtain their independent opinion/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

. “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 up for a potential improper scene evaluation, analysis and documentation.

As anyone associated with the insurance industry understands, subrogation is a chess match orchestrated by attorneys, with experts providing evidence and insurers with alleged “deep pockets”. 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 that are easily understood. The scientific method provides a road map for the investigator to follow and stay the course.

Subrogation can be challenging to navigate, but an investigator that followed NFPA 1033 and 921 will be able to provide a much more representative account in any litigation process and potentially position their client to prevail.

The scientific method and the protocol is not smoke and mirrors, nor is it a mystery…It is designed that when used properly, it provides the “trier of fact” to accept the investigator as an expert, understand and be able to better apply the evidence submitted to the court.

Lawrence L. Canary IFSAC-CFI, NAFI-CFEI, FCLS

Vice President, Fire & Explosion in Richmond, Surrey

Lawrence (Larry) Canary, IFSAC-CFI, CFEI, FCLS is the Vice President – West Region Manager of the Fire & Explosion Division of Envista Forensics. He has over 30 years of fire investigation experience and has personally conducted or supervised over 1,600 fire investigations globally. He holds degrees in Fire Science, Criminal Justice and Instructor of Technology & Military Science. He has testified as an expert in fire and explosion investigations in both state and military federal courts. Mr. Canary’s experience includes large/complex loss management and investigations that have involved long duration deployments and team responses.

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