Filed Under:Claims, Loss Litigation

Swept Away à la ‘Mary Poppins’

Duties of a Chimney Sweep and Subrogation

A fire breaks out and destroys a single-family home. An investigation reveals that a chimney sweep cleaned the fireplace system 10 months prior. As a claims adjuster, what issues and areas are important to assess? Let’s first look at fireplace systems, and then the duties of a chimney sweep and what areas adjusters should review when it comes to evaluating the potential for subrogation recovery.

The Fireplace System – “Not Practically Perfect”

Most homeowners’ familiarity with chimneys comes from seeing the movie “Mary Poppins.” In that movie, set in England, chimneys are swept as a backdrop to the story. However, chimney systems are not “practically perfect in every way,” like Mary Poppins. Chimney fires are extremely dangerous and pose a serious risk of harm to occupants as well as concurrent property damage.

There are different combinations of fireplace and chimney systems. Many are masonry products consisting of bricks, blocks, or stone and mortar, which can have a metal chimney system. Others are lightweight metal chimneys and metal fireboxes commonly known as prefabricated, zero-clearance, or factory-built fireplaces. Hybrids exist, so precise inspections and detailed knowledge of fireplaces is necessary.

Masonry fireplaces can be large structures, and because of their weight, settlement and rotation are common problems to be evaluated. Settling is often recognized where the firebox makes contact with the facing. There can be open gaps in this area created by settlement or during construction, which may permit fire or heated gases to travel into a wall cavity, contacting adjacent combustibles. Fireplace fires can burn as hot as 2,000 degrees Fahrenheit, igniting inappropriately exposed combustibles.

The chimney and firebox should be examined for damage, as joints in the firebox and chimney system can expand and contract based on usage. All components must be properly inspected to ensure that they will not fail, become damaged, or allow a fire or heated gases to escape.

Factory-built fireplaces became readily available in the last 25 to 30 years and are commonplace today. Most are made of sheet metal and sold as complete systems with a specific chimney. Installation manuals must be obtained to make sure the original installation of these fireplaces met the listing requirements. Applicable building codes require that factory-built fireplaces be installed in accordance with the manufacturer’s specifications/listing. Clearances between one-half and two inches of air space are required from nearby combustible framing. If the clearance is incorrect, nearby wood may dry out over time and lower the ignition temperature of the adjacent combustible framing. If this process continues unabated, a fire can result.

The Chimney Sweep – “Jack of All Trades, Master of None?”

It is critical for homeowners to have their fireplace systems cleaned and inspected annually or after any sudden/unusual event, including a chimney fire, earthquake, or lightning strike. Cleaning is normally performed by a chimney sweep. Unfortunately, states currently do not certify chimney sweeps; one need only obtain a business license from the authority having jurisdiction to offer homeowners their services. Thus, almost anyone can offer chimney sweeping services even though they are untrained and inexperienced. Hence, some sweeps are qualified, and some are not. Consequently, homeowners need to carefully assess before they hire.

Chimney sweeps need to be extremely careful when performing their inspection and sweeping activities, due to the risk of harm that can result from an improper inspection or service of a chimney system.

Failure to remove creosote (an unburnt fuel deposited during wood burning) from hidden or inaccessible areas may result in a creosote-caused fire. It is well known to chimney sweeps and inspectors that these deposits must be removed to avoid chimney and structure fires caused by ignition of this unburnt fuel.

When ignited, creosote deposits will burn at temperatures between 1,200 and 2,000 degrees Fahrenheit. Creosote fires may also result in sudden thermal shock to the fireplace and chimney structural components, potentially leading to the transfer of heat to adjacent combustibles during the creosote fire or during subsequent normal use.

There are professional organizations to which a chimney professional can belong. One of the more recognized ones is the Chimney Safety Institute of America (CSIA), a nonprofit, educational organization dedicated to chimney and venting-system safety.

When a homeowner calls for service, it is important to determine exactly what was requested. A chimney professional normally provides sweeping that includes a very limited inspection of the chimney system’s visible parts, known as a Level I inspection. The sweep must comply with the applicable NFPA 211 Standard for Chimneys, Fireplaces, Vents and Solid Fuel-Burning Appliances. This standard may be adopted by the jurisdictional authority as a mandatory code for sweeps to follow. However, if it is not adopted as a code, it is still recognized as the standard of care to assess if the chimney sweep performed work properly.

Levels of Inspection – “A Spoonful of Sugar Makes the Medicine Go Down?”

NFPA 211 separates inspections into three levels, and circumstances at a home can impact whether or not a level should change. Unfortunately, most homeowners have no understanding of inspection levels and may rely on a sweep to make sure the fireplace system is completely safe.

The most basic inspection per NFPA 211 is Level I. This is the inspection that occurs during the sweeping process under normal conditions. A Level I inspection is performed for continued operation of the system without a change of use and when a replacement appliance of the same fuel and efficiency is being connected. It also typically includes an annual system evaluation. As noted above, a Level I inspection is limited to easily accessible portions of the venting system to include portions of the connected appliance.

A sweep also checks the readily accessible structure and flue portions of the chimney, verifying that the flue is not blocked or significantly restricted.

A Level II inspection is more detailed and more expensive, as it includes examining accessible areas in crawl spaces, basements, and attics. All accessible areas of the fireplace, chimney, connections, and appliance are inspected. Sweeps also check for proper clearance from combustibles in these areas. Video scanning or other inspection of the interior flue is completed, and evaluation of the chimney system’s construction/condition is performed. However, a Level II inspection does not include removal of a building’s permanent parts, such as chase covers, wall coverings, or siding. This level is used when the conditions of use for the appliance are changing or when a Level I inspection discloses the need for a more rigorous examination. A homeowner should be advised of the need for the change, as well as the increase in cost. If a homeowner declines, the sweep should note the refusal in writing on his invoice/report and recommend the system not be used until a more detailed inspection is conducted. Examples of when a Level II inspection is recommended include sale or transfer of property; before a flue is relined; change of an appliance with a dissimilar type, efficiency, or rating; and after an operating malfunction or external event likely damaged the chimney, such as a fire.

The most comprehensive and detailed system evaluation is a Level III inspection, which normally includes accessing concealed areas of the building. Nevertheless, that more meticulous examination is limited to areas reasonably suspected of containing hazards that cannot be evaluated otherwise.

A Level III inspection covers all the areas included in a Level I and Level II inspection. Since removal of a home’s fixed portions occur during a Level III inspection, those must be discussed and approved by the homeowner.

Guidelines to Assess Sweep Work – “Look Out for Admiral Boom”

The CSIA offers a certified chimney sweep program, and those who voluntarily get certified know they are expected to follow CSIA guidelines. Those guidelines can be reviewed to determine if a sweep met the standard of care.

A useful CSIA publication is Successful Chimney Sweeping, which sweeps can purchase as part of certification. The manual includes the six-step sweeping process: preliminary examination; inside preparation and sweeping; flue sweeping and examination; final examination; Level I inspection; and customer review. Those sections can be reviewed after a sweep’s work to see whether the standard of care was met.

A Real-Life Sweep Case

The authors evaluated, handled, and litigated a chimney sweep case in Southern California, in which a chimney fire occurred at a home and caused substantial damages. A sweep had serviced the home about 10 months before the fire, and the issue was whether he met the standard of care. An on-scene site inspection was performed with the sweep in attendance.

Digital photographs of the existing chimney system were taken to include down-the-flue. Sweep inspection documents were also examined. At the time of the inspection, shortly after the fire, it was clear that the smoke chamber in the fireplace system had a creosote-caused fire. Unknown was that the sweep was unable to view the entire smoke chamber when he performed his services 10 months prior. He could not see into several areas in the smoke chamber in order to ensure it was creosote-free.

After litigation was commenced and the sweep deposed, it was discovered that those areas in the smoke chamber could not be confirmed free of creosote buildup after servicing, nor did the chimney sweep use a mirror to check those blind spots. Moreover, he did not use video inspection of that area, though he was aware such technology was commonly used. As a result, there were significant subrogation-recovery-based errors identified above and preserved by the adjuster’s immediate fireplace-system investigation.

Adjuster Recommendations – “Supercalifragilisticexpialidocious”

When a major fire loss happens involving a fireplace system, an adjuster should consider evaluating what role, if any, a chimney sweep played in that fire. In order to accurately assess if a sweep met the standard of care, an experienced chimney sweep consultant should be retained. All available sweep reports should be obtained, including those of earlier sweeps, to develop a history of the chimney system. Notify the sweep who last performed the work and conduct an inspection after the event. Collect photographs and preserve any physical evidence. Rapidly investigating may lead to a “supercalifragilisticexpialidocious” subrogation recovery.

For information on emerging subrogation and recovery issues, visit http://subrogationandrecoverylawblog.com/ and follow @CozenSubro on Twitter.

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