Florida property subrogation is big business. It has the third-most automobiles on the road, behind California and Texas. It has the most condominium units of any state—by a country mile. According to the Insurance Information Institute, it is second only to California with $37 billion in property and casualty losses each year. It is also second to California in incurred private passenger auto losses at $15 billion annually. When it comes to homeowners’ property losses, it is—you guessed it—second to California with over $8 billion in losses every year. As you might imagine, Florida is a property subrogation mecca and understanding how to effectively document, inspect, and preserve subrogation potential in the Sunshine State is indispensable knowledge for any recovery professional.
When a property damage loss occurs, subrogation possibilities should be at the forefront of any insurance professional’s mind. From the moment the first strokes of the keyboard begin to fill in the Acord Property Loss Notice, the mind should be thinking in terms of preserving evidence, putting people on notice, engaging subrogation counsel, and retaining qualified experts whose testimony will be allowed in court under Florida law. Experts must be qualified but must also be thoroughly vetted to be sure that the judge in an eventual subrogation suit will even allow them to testify.
There really is no such thing as a “cause and origin” expert. Up until the early 1990s, fire investigation was a purely empirical profession, with very limited scientific foundation underpinning it. As a result, various “rules” were used by practitioners, which were later learned to be myths as opposed to valid precepts of science. For example, “alligatoring” (series of cracks grouped together in one area following a fire), which was large, deep, and shiny, was thought to mean that the fire spread rapidly or the presence of a nearby ignitable liquid, as opposed to slow fires which produce flat alligatoring. This has been proven false. Also, it was often said incorrectly that the presence of a melted aluminum threshold indicates the use of an ignitable liquid, such as gasoline. That chipping, pitting, or discoloration of concrete was an indication of an accelerant has also been proven false. The same goes for beading at the end of copper wire, which was often mistakenly seen as the cause of a fire, as opposed to a consequence of one. Arc mapping is not related to determining the cause of fire. Instead, an electrical arc may be the initial event starting a fire, but arc mapping is a method suggested for helping identify the fire origin, not its cause. Yet, we frequently see unqualified reports indicating to the contrary.
Sometimes the origin of a fire is obvious. Far more frequently, however, it is not. In both scenarios, however, it is the ultimate burden of the subrogated carrier to convince a jury where the fire started. An “origin” expert does precisely that – provides an opinion as to where a fire started. A “cause” expert, however, has a much different expertise, and is usually an engineer or other degreed professional in a discipline which allows him or her to look near the origin of a fire and determine what actually caused the fire. The functions are very different. Although the origin expert is sometimes also called on to give an opinion as to the cause of a fire, this is usually done in smaller losses where the cost of hiring a “cause” expert is outweighed by the size of the loss. One of the most frequent and expensive mistakes we see committed is taking the shortcut of hiring a fire investigator in larger fire losses to nail down both the origin and cause of a fire. Most frequently, however, the investigator is unqualified to opine on the cause of the fire, and sometimes unqualified to discuss either. In most fire losses, both disciplines are necessary.
To assist the insurance industry in determining the origin of fires and whether it is accidental or arson, “fire investigators” (usually retired fire fighters) with some limited training in fire science, fire chemistry, explosion dynamics, computer fire modeling, fire investigations and/or failure analysis are usually sufficient. The same expert is also rarely able to provide mechanical or electrical engineering expertise with regard to how and why a specific product or instrumentality actually caused the fire. Fire investigators have flooded the insurance industry today, but far too few are properly qualified to even provide sound origin expertise. The fact that one holds himself out as a fire investigator does not mean one is qualified to claim the title. Subrogation professionals must ensure that the origin expert is properly qualified and capable of conducting a competent fire scene investigation that can be relied on during settlement discussions and admitted into evidence in a possible trial should no settlement be achieved.
In the world of fire investigations, most courts and professionals look to the National Fire Protection Association (NFPA) as the premier organization for establishing guidelines and standards for investigating fires. Chief among the standards promulgated by the NFPA is NFPA 921, Guide for Fire and Explosion Investigations, which sets forth standards and procedures for the proper methodology of fire investigation. Make sure your expert is well-versed in NFPA 921 and its procedures. If not, the chances that their testimony will be excluded rises dramatically.
It isn’t enough for an expert to allege the origin of a fire; your expert must also prove it using the latest science. The NFPA 921 is universally accepted today and is printed in French, Spanish, Korean, and Chinese. Some fire investigators still support the old “negative corpus” technique of fire investigation and don’t like being challenged on the way they have done things for decades. NFPA 921 refers to negative corpus as “not consistent with the scientific method, inappropriate, and should not be used because it generates an un-testable hypothesis.” To be safe, make sure your expert will say, “Yes, I did my investigation in accordance with NFPA 921.” Times have gotten a lot tougher for “experts” who are not really experts, and courts have drastically narrowed the barn door through which “expert” testimony and junk science used to freely saunter unchecked.
Far less famous than its older brother, NFPA 921 is another standard known as “NFPA 1033”, establishing standards and providing guidelines for the most basic expertise necessary in fire investigations. In 1977, the NFPA issued a document called “Professional Qualifications for Fire Inspector, Fire Investigator, and Fire Prevention Education Officer,” under the NFPA 1031. In 1987, the guideline was given a makeover and recodified as NFPA 1033, “Standard for Professional Qualifications for Fire Investigator.” It sets forth minimum, clear qualification standards that can be used to determine whether an individual possesses the skills and knowledge necessary to qualify as a fire investigator. In 2014, both NFPA 921 and NFPA 1033 were revised in order to harmonize the two standards. NFPA 1033 now requires an investigator to have minimum, basic training of fire investigation beyond the high school level. It does not require a “post-secondary” education, but has a “remain current” requirement which says the origin expert must attend education courses, workshops, and seminars in order to have basic knowledge of fire protection systems; evidence documentation, collection, and preservation; and electricity and electrical systems.
Failure to thoroughly understand and follow NFPA 1033 and the changes it experienced in 2014 can leave you with the unfortunate consequence of having paid for an expert you cannot use. If there is any doubt as to whether the “fire investigator” you have been told to use on fire losses meets the basic NFPA 1033 requirements, find a different expert. While only a high school diploma is technically needed, well-written and convincing fire investigation reports often benefit by some advanced education as well. A report with bad grammar, missing punctuation, and rambling thoughts isn’t going to do the job it was intended to do – convince the other side to pay you money. Although this is not always the case, the cheaper an expert, the more likely it is the expert will be unqualified. If your origin expert cannot affirmatively identify the origin of a fire, ask him or her not to author a report. Under no circumstances should the origin expert indicate an ability or inability to identify the cause of a fire. Unless it is a small fire and you are going to rely on an unqualified origin expert to prove the cause of your fire, he or she should leave the cause for more qualified personnel. Even an “initial determination” of cause by an origin expert will be counter-productive if your cause expert has a different opinion.
Positively and convincingly identifying the origin of a fire is a necessary step in identifying its cause. Therefore, great care should be taken in locating and selecting an origin expert. Once the origin of a fire has been identified, it’s time to uncover the cause.
The cause expert takes up where the origin expert leaves off. The industry standard today is to find the origin of a fire before its cause. NFPA § 17.1 says:
The origin of a fire is one of the most important hypotheses that an investigator develops and tests during the investigation. Generally, if the origin cannot be determined, the cause cannot be identified, the subsequent cause determination will also be incorrect.
The origin of a fire is determined by using witness information, fire patterns, arc mapping, and fire dynamics. If an opposing origin expert is unable to eliminate multiple alternative possible areas of origin (a popular technique intended to shed doubt on the opinion of an expert who has narrowed the origin down to one location), the industry standard for determining the origin of fires has been to first determine the area of origin of the fire and then to determine and eliminate the potential causes of the fire within that single area of fire origin, concluding into a final cause of the fire. An origin expert with multiple possible areas of origin will not be able to conclude a final cause of the fire. A fire cause is only reliable if the origin has been correctly identified and a target defendant can only be identified if we know the cause.
Engineering experts play a key role in proving the actual cause of a fire. Electrical, mechanical, and chemical engineers are often necessary to arrive at a provable cause of a fire. Getting the most out of this expert from the initial call to your expert, through the evidence examination and during dispositive motions and trial means knowing how, when, and to what extent your expert can and should be involved in the case. Where a product defect is involved, some jurisdictions require an expert to not only identify the defect and its link to the fire, but also to arrive at a reasonable alternative design which the manufacturer could and should have been able to utilize without affecting the utility of the suspect product.
NFPA 921 strongly suggests that all interested parties be placed on notice of any scene inspections so that all parties have an opportunity to retain experts and see the evidence in its pristine condition. NFPA 921, Ch. 11, § 184.108.40.206. Proper notice also minimizes claims of spoliation. For a chart on the laws of spoliation in all 50 states, see HERE. The purpose of an inspection is to collect data and preserve evidence that will aid the expert in determining the origin and cause of the fire. However, it is a good idea to have an expert or experts present at the initial inspection in order to assist them in dealing with cross-examination about what they saw or didn’t see. Physical evidence should be recognized, documented, properly collected, and preserved by your expert for further testing and evaluation. NFPA 921, Ch. 4, § 4.4.4. Your expert(s) should use field notes, written reports, sketches, diagrams, and photographs. See NFPA 921, Ch. 16, § 220.127.116.11. However, it is always a good idea to tell your expert not to reduce his or her opinion to written form until you have had a chance to discuss it. A written report in 2015 will look deficient in 2017 after many more facts have been uncovered during litigation. Clients love to get a written report in the hopes of quickly settling a subrogation file without engaging subrogation counsel and the fees that come with them. However, a majority of the time, such a settlement turns out to be wishful thinking, especially if defective products are involved; but the lasting effective of a premature written expert’s report may inflict damage on the file through trial. Simply having your expert indicate in the report that it is subject to revision suggests that the expert was all too eager to give an opinion the client wanted rather than waiting until all the relevant evidence was available.
All too often we see large property subrogation files with negative expert reports in the file. Don’t pay somebody to document that you have no chance at recovering your subrogation dollars. A different expert might come to a different conclusion but may not be able to explain away your first expert’s opinion. All physical evidence should be marked or labeled for identification at the time of collection; the expert(s) should maintain a list of all evidence removed and who removed it. See NFPA 921, Ch. 16, § 16.7. The chain of custody should be properly documented. See NFPA 921, Ch. 16, § 16.9.2. Once evidence has been removed from the scene, it should be properly maintained and not destroyed or altered until other parties of interest have been notified. See NFPA 921, Ch. 11, § 18.104.22.168. And, be prepared for the usual defense tactic of blaming whatever evidence you decided not to secure.
Admissibility of Expert Testimony
If the hard work and favorable opinions of the experts you hire and pay for isn’t admissible in court, all will be for naught. Florida’s tug-of-war between its courts and its legislature regarding the appropriate standard for a judge to use to assess the admissibility of an expert’s opinion testimony has finally been settled. The Florida Supreme Court recently announced that the Frye standard is the governing standard when determining the admissibility of expert testimony. DeLisle v. Crane Co., 258 So.3d 1219 (Fla. 2018). This decision clarifies longstanding confusion and uncertainty among the Florida courts and litigators regarding applicable standards. Then, on May 23, 2019, the Supreme Court, in accordance with its exclusive rule-making authority, adopted chapter 2013-107, §§ 1 and 2, Laws of Florida, which amended §§ 90.702 (testimony by experts) and 90.704 (basis of opinion testimony by experts), of the Florida Evidence Code to replace the Frye standard for admitting certain expert testimony with the Daubert standard. In re Amendments to Fla. Evid. Code, 278 So.3d 551 (Fla. 2019), reh’g denied, 2019 WL 4127349 (Fla. Aug. 30, 2019).
As subrogation professionals know all too well, the use of expert witnesses has become an integral and indispensable aspect of American litigation and it is often the side with the best expert who wins the day. The use of expert testimony in American litigation has grown exponentially since it came into focus, and the use of experts is now frequently used to place into evidence opinions and circumstances related to opinions, which would not otherwise have been put into evidence. The new lucrative forensic cottage industry came hand-in-hand with abuses and the use of “junk science.” States began to recognize the need to protect the credulous jury from con men and quick-buck “experts” eager to make a profit at all costs, and standards were developed.
The Frye standard, developed in 1922, provides that expert opinion based on a scientific technique is admissible only where the technique is generally accepted as reliable in the relevant scientific community. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). The Daubert standard, created in 1993, held that the Federal Rules of Evidence superseded Frye as the standard for admissibility of expert evidence in federal courts. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). This standard is used by a trial judge to make a preliminary assessment of whether an expert’s scientific testimony is based on reasoning or methodology that is scientifically valid and can properly be applied to the facts at issue. Under this standard, the factors that may be considered in determining whether the methodology is valid are: (1) whether the theory or technique in question can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) its known or potential error rate; (4) the existence and maintenance of standards controlling its operation; and (5) whether it has attracted widespread acceptance within a relevant scientific community. The Daubert standard is the test currently used in the federal courts and some state courts.
For over 40 years the Florida Legislature and the Florida Supreme Court have worked in tandem to enact and maintain codified rules of evidence. This arrangement between the branches to avoid constitutional questions of separation of powers continued uninterrupted from the Evidence Code’s inception until 2000, when the Florida Supreme Court declined to adopt legislation which governed evidence, holding it unconstitutional. In re Amendments to the Florida Evidence Code, 782 So.2d 339 (Fla. 2000). In 2017, it further declined to adopt as a rule certain legislative changes “to the extent that they are procedural” due to “grave constitutional concerns” about the Daubert standard. In re Amends. to the Fla. Evidence Code, 210 So.3d 1231 (Fla. 2017).
Effective in 2013, the legislature amended F.S.A. § 90.702, entitled “Testimony by Experts.” In essence, it provided that the admissibility of expert testimony would be governed by the Daubert standard. In DeLisle v. Crane Co., 2018 WL 5075302 (Fla., Oct. 15, 2018), expert testimony regarding medical causation expert testimony regarding mesothelioma was disallowed under § 90.702, which codified the Daubert standard. On appeal, the Supreme Court recognized that Frye and Daubert are competing methods for a trial judge to determine the reliability of expert testimony before allowing it to be admitted into evidence. It noted that Frye relies on the scientific community to determine reliability whereas Daubert relies on the scientific savvy of trial judges to determine the significance of the methodology used. The Court announced that Frye, not Daubert, is the appropriate test in Florida courts, holding the statute to be unconstitutional.
For a comprehensive chart detailing the statutory law/case decisions in all 50 states regarding the prevailing standard for admissibility of expert testimony, see HERE. If you have any questions regarding this subject or the handling of subrogation claims, contact Lee Wickert at [email protected].