Ryan Bennett and Melissa Kenney | White and Williams
Welcome back to another episode of Subro Sessions I’m Ryan Bennett, an associate in the Subrogation department at White and Williams, I’m happy to be joined by fellow associate Melissa Kenney.
Hey Ryan, happy to be here today.
Ryan: In today’s episode we will discuss the topic – getting control of an accident scene and ensuring evidence is preserved. For the purposes of this podcast we will focus on fire scene preservation and preservation of evidence involved with the water loss claim. The reason scene evidence preservation is so important as a subrogation professional is because the first step is to determine the origin and cause of the loss. Origin means where did the loss originate. The type of loss you are investigating can normally dictate your approach as to how the site and evidence is secured, when we begin investigating any loss we always want to know the status of the scene how recent was the loss, was it yesterday, last week, or last month? Has the scene been secured or has it been released.
Regardless of whether we end up pursuing the matter we always want the site to be secure to give ourselves the best chance at potential recovery. Securing the scene means that the area of origin of the loss being as close to the same condition as it was when the loss occurred, whether it be a specific room in a house or building, a certain component part in an appliance malfunction or pipe connection or fitting or valve that separated to cause a water leak. We want that condition to remain as is so all interested parties have an opportunity to document that same condition. Subrogation professionals are rarely the first to investigate a loss site.
Typically after the insured agent or carrier directly to notify them first an adjuster will visit the site within a day or so to review the damage
Melissa: That’s right Ryan and the first party claim adjuster really does play a pivotal role in our subrogation and recovery efforts. This is because the first opportunity to secure the scene generally occurs during the initial visit made by the adjuster. The adjuster is the main point of contact for the insured throughout the first party claim adjustment and the adjuster really has many roles. They are advocates for the insured and the insurance company, they’re responsible for inspecting the site, dealing with the coverage and potential liability issues, identify subrogation potential and of course also dealing with seeing preservation issues. When investigating a fire loss, the adjuster can express to the insured or the property owner or perhaps public sector officials that the scene should remain in its current as is condition. If emergency or mediation companies are already at site remediating the property, it’s important that the adjuster instructs those companies to secure the scene that can be done by using caution tape to block off the room of origin. Another option is to board up any open doorways and windows. These are preventative depths that can be taken while an origin and cause investigator is retained. Typically some level of coordination with public sector officials takes place and they can assist with securing the site as well.
Following the origin cause investigators initial visit it’s important to confirm that the site is secure, as I previously mentioned this can be done by putting caution tape around the room of origin. The fire investigator can also placard the front door. This will tell anyone entering the home that an active investigation is underway. The radius or perimeter of the area to be secured will vary depending on the location of the loss. If we are in a city or an urban setting we may consider putting a temporary fence around the structure. When we are in rural settings caution tape may be enough. This depends on the suggestion from the fire investigator if we’re investigating a fire perhaps a product malfunction it might be necessary for the fire investigator to bag up any of the evidence that may be small or could get lost or misplaced. The fire investigator will also want to label that evidence to ensure it’s not removed before all parties have an opportunity to examine the scene.
Ryan: In the instance of a water loss, you would want to first know where the loss originated at. Was it caused by pipe burst, a pipe separation or a valve or hose failure? Regardless of the cause it is important to confirm the whereabouts of the evidence first. The evidence can be a section of copper piping, a piece of PVC fitting, a sprinkler head or it might be a small component piece of the supply hose for the hose itself. These losses might occur within apartment condominium buildings, so communicating with property managers or the buildings facility manager from the outset is important. Their retaining of the physical evidence as well as prohibiting anyone from starting repairs will ensure that any potential third parties view the site and as close to the as is condition as possible. In the instance where the site cannot be held due to environmental or safety concerns you may not have an opportunity to secure the site and wait for other parties to document it. Those are instances where technology can assist your investigation. Most investigators will have 3D scanning capabilities that can capture the site as is, and allow you to virtually walk through the building. That way if the building has to be demolished or deteriorates further while exposed to the elements, all parties are digitally review the damage site from the investigators 3D scan, sometimes known as a matter port.
Melissa: Matter ports are really useful in subrogation and recovery efforts. Now that we’ve gone over fire scene and water scene preservation, next Ryan and I are going to take you through three situations we have encountered as Subrogation attorneys that investigate a lot of water and fire losses.
Ryan: First, you receive a notice of a large residential fire loss. After speaking with the insured, you learned that the fire originated in a second floor bedroom and there may be subrogation potential. When you arrive on site you discover that the responding fire department put the debris from the room of origin outside during the overhaul and suppression. So Melissa, what should the first party claim adjuster do in this situation to ensure the evidence is preserved.
Melissa: As I mentioned before, it is really important that the adjuster keep an open line of communication with the insured about what steps need to be taken for the subrogation investigation. This obviously involves preserving the fire scene, so in this example the first party claim adjuster would want to retain subrogation council as quickly as possible. They also want to make sure they hire a fire investigator to get to the scene right away, because we’re dealing with a situation where fire debris has been placed outside by the responding fire department. The adjuster will also want to advise any mitigation contractors not to touch those items until the fire investigator can get there. This means limiting access to the scene to only those who need to be there until the fire investigator gets there.
Ryan: And what should the fire investigator be doing in this situation?
Melissa: So, in this situation, when the fire investigator arrives on site, the fire investigator will process the debris that has been placed outside. They’ll be careful when doing so because we want to make sure that they are not making any significant changes that would destroy or alter the evidence. They also want to make sure that they, if necessary, secure the evidence and bring it inside if possible. Again, we want make sure this is done with little to no changes being made to the evidence.
Ryan: That’s really helpful. For our next example, you retain an origin and cause investigator to inspect the fire scene. The fire investigator reports that fire originated at or around a 2 year old refrigerator that was plugged into a duplex wall receptacle both the manufacturer and installer need to be placed on notice and given an opportunity to participate in a joint scene exam. The insured is eager to start the repair process, we need the insurance cooperation preserving the scene. How can this be accomplished?
Melissa: So, in this situation, this is another example of where we want the first party claim adjuster to keep an open line of communication with the insured. Our insurers are always eager to start the repairs, they’ve obviously just went through a traumatic experience and want to get back into their homes as quickly as possible. In this situation we’re dealing with a refrigerator that caught on fire the first party claim adjuster should direct the insurer to preserve the room of origin, so we want the kitchen preserved in its current condition until a joint scene exam can take place. This means that the refrigerator stays in place that goes with the outlet the refrigerator was plugged into, any branch circuit rack wiring running from that outlet to the main electric panel as well. I’ve encountered situations in the past where joint scene exam is scheduled, but the insurance electrical repair contractor comes in and replaces the outlet before the exam takes place. This isn’t great, oftentimes manufacturers will want to examine an outlet that they’re appliance or electronic device was plugged into. And depending on the loss size, in this case, if we’re dealing with a total fire loss that destroyed the entire home. We will want the first party claim adjuster to advise the insured that we need the entire fire scene preserved. If we’re dealing with a partial loss it may be OK to release the remainder of the home and just preserve the kitchen. When you’re deciding what portions of the home need to be preserved you can have a conversation with subrogation council, they should be able to give you some guidance on that issue.
Ryan: And finally, a commercial building sustained water related damage after component on the sprinkler system failed. The sprinkler system is taken out of service and the date is set for the component at issue to be replaced. What steps would you take?
Melissa: In this case, the first party claim adjuster should either retain subrogation council or a Fire Protection engineer right away. The goal would be to have the Fire Protection engineer attend the replacement work, that way the engineer can document and photograph the work. The engineer would also be able to secure the component at issue as evidence after the work takes place. This will ensure that that component doesn’t go missing. If you don’t have time to retain an engineer and time is of the essence and the insured schedules the replacement work before the engineer can get there, the first party claim adjuster will want to advise the insured to preserve the component after it is removed by the sprinkler contractor, and then in that situation we could have an engineer go out to the site and secure it from the insured.
Ryan: So, as you can tell, each loss requires a specific approach, but one thing remains constant – early action and communication in the beginning stages of your investigation will assure that you have the best opportunity at recovery.
Melissa, thanks for discussing today’s topic of how to secure a scene to ensure that evidence is preserved.
Melissa: My pleasure Ryan, thanks for listening to this episode of Subro Sessions.
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