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By David S. Evinger and Gerardo Alcazar of Robins, Kaplan, Miller & Ciresi
In their article appearing in the March/April 2010 issue of Coverage, “How Fast Can a Fire or Explosion Case Be Extinguished?: Recent Developments Involving NFPA 921: Guide for Fire and Explosion Investigations,” David S. Evinger and Gerardo Alcazar warn that a fire or explosion case can be ruined if the utmost care is taken at each phase of the investigation. It is crucial that the insurance company assigning the claim, the adjuster evaluating the loss, and the attorneys taking any subsequent action “all be familiar with the various laws, codes, regulations, and guidelines that may apply from the loss investigation stage through trial.” The National Fire Prevention Association’s NFPA 921 is the most accepted guidance document for fire and explosion investigation procedures. The authors review cases establishing that an investigator’s knowledge and compliance with the procedures set out in NFPA 921 may be instrumental in qualifying the investigator as an expert at trial, for example, under Federal Rule of Evidence 702 and the Daubert standards. In addition, the authors point out the International Association of Arson Investigators provides a Certified Fire Investigation® program and the National Association of Fire Investigators provides for a Certified Fire and Explosion Investigation certification. Significantly, both certification programs entail a demonstrated knowledge of NFPA 921. The authors review court decisions indicating that not only should investigators follow NFPA 921 in identifying and collecting evidence in their cause and origin analysis, but also that the opinions they offer at trial should reflect the application of its principles. Noting that “[t]he investigation procedures followed and the basis for the conclusions made by the investigator can make or break any case,” the authors conclude that adherence to NFPA 921 “can greatly improve” the chances for the admissibility of a fire expert’s testimony at trial.
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