Litigating a Large Fire Loss

By: Emily Faith, JD
Choose the Right Captain for Your Expert Team By: Emily Faith, JD, Account Executive - Litigation Support When you represent a Plaintiff or a Defendant in a fire case with a large value or exposure, you may need a team of experts to present your case or defense on issues of liability.  You will absolutely need the best available fire investigator to determine the origin and cause of the fire.  The skilled investigator will not only be adept at reaching conclusions by meticulously following the scientific method, but will also alert you to the need for additional experts who are required to investigate, test and analyze suspected electrical and/or mechanical causes of the fire.  A superior fire investigator will also have the experience and contacts within the necessary fields of expertise in the scientific community, to not only recommend the additional experts you need for your case, but to also reach out to those professionals and assemble the team of experts that can work together to present your claim or defense. To engage such an investigator, you will want to begin by reviewing the certifications and licenses that a fire investigator must have in the location of the subject fire.  Every state has legal requirements for a person to be licensed to perform fire investigation.  Before you engage the services of any investigator, ensure that he or she is legally qualified to undertake the origin and cause investigation.  As an example, the state of Kentucky requires that a fire/arson investigator maintain a private investigator license and the applicable statute for the Kentucky requirements is as follows: Kentucky Revised Statute 329A.095 Licensure for private investigators conducting fire or arson investigations.
  • Any private investigator who conducts fire or arson investigations in the state of KY shall be:
    1. Licensed in accordance with KRS 329A.025 (as a private investigator); and
    2. Certified by the National Association of Fire Investigators (“NAFI”) or the International Association of Arson Investigators (“IAAI”) as a fire and explosion investigator.
  • Upon revocation of his or her certification by either the NAFI or the IAAI, a private investigator who conducts fire or arson investigations shall cease the practice of fire or arson investigations.
  • Fire or arson investigation by a licensee under this chapter shall be prohibited without certification.
Kentucky effectively incorporates the certification requirements of the NAFI and IAAI for anyone who seeks a license for fire investigation.  Many other jurisdictions similarly incorporate these certifications as part of their licensing requirements and for good reason. The NAFI is an international registry for fire investigators which establishes a standard for evaluating the qualifications of those conducting fire investigations and also creates a benchmark for investigators who wish to establish their professional credentials.  The IAAI provides certification of fire investigators and also maintains a registry.  Applicants must attain a required level of achievement in education, training and experience.  Both organizations require that those who seek their certification pass an examination which tests the examinees’ knowledge of the codes and standards of the National Fire Protection Association (NFPA).  The NFPA 921: Guide for Fire and Explosion Investigations is accepted by the fire investigation industry as the established guidelines and recommendations for the safe and systematic investigation and analysis of fire and explosion incidents.  The NFPA 1033: Standard for Professional Qualifications for Fire Investigators identifies the minimum job performance requirements necessary to perform as a fire investigator. Certified and licensed fire investigators are also required to remain current with investigation methodology, fire protection technology and current code requirements by attending workshops/seminars and through professional publications and journals.  Various state requirements to maintain licensure dictate that the licensee provide documentation of required continuing education attendance/completion.  Inquiry into completion of these activities is another part of vetting a fire investigator before retention. A critical part of fire scene investigation is collection of evidence and the subsequent storage of relevant evidence collected.  As an attorney screens a potential fire investigation expert, the professional’s knowledge of proper handling and storage of the evidence could make or break your case.  It is essential that the investigator know the standards applicable to evidence and that he or she have the resources to collect, document/catalog, store, maintain and dispose of evidence when the case has concluded.  You should also know what resources your potential investigator accesses when evidence testing is needed.  A professional may rely on other scientific experts’ resources for evidence handling and testing, such as electrical or mechanical engineers and specific testing laboratories.  Finding out who those third parties will be, if needed, and vetting them, as well, should also be a part of the decision  making process before the fire investigator for your case is engaged.   We're hosting a webinar on April 11th where our fire investigator, mechanical engineer, and electrical engineer will share their insights on litigating large fire losses. Register now.   Emily Faith, JD, is the Litigation Account Executive at Donan. She can be reached at [email protected]. To learn more about or to engage Donan's litigation support services, visit us at donan.com/litigation-support.