(Editor's Note: The following article has been contributed by Everette Lee Herndon, Jr., a claims consultant and expert witness.)
Arson is a crime. The American Heritage Dictionary defines arson as “the crime of maliciously, voluntarily, and willfully setting fire to the building, buildings, or other property of another or of burning one’s own property for an improper purpose, as to collect insurance.”
After 1992, the use of negative corpus methodology became more widespread. In other words, there was no scientific evidence of the crime of arson, just a failure to find any evidence of an accidental or natural cause or anything to conclusively rule out arson. This was seen by many to be a flawed methodology.
The NFPA 921, Guide for Fire and Explosion Investigations (2008 Ed.) discusses using the process of elimination, and sets forth some essential criteria:
Absence of Evidence
There is an old saying in science and logic that “absence of evidence is not evidence of absence.” Absence of evidence of an accidental or natural cause is not evidence of the absence of an accidental or natural cause. Just because the investigator did not find an accidental cause does not prove there was not an accidental cause. Neither does the absence of evidence of an accidental cause allow one to scientifically or logically conclude or prove the presence of incendiary/arson causation. If an expert fails to find the origin and cause of a fire and concludes arson or an incendiary source based solely on not finding an accidental or natural cause, then the adjuster should immediately review the expertise and thoroughness of the expert before relying on his opinion.
Recent Changes to NFPA 921
The 2011 version of NFPA 921, Guide for Fire and Explosion Investigations, finally rejected the negative corpus methodology as being inconsistent with the scientific method, based on the finding that the methodology generated unprovable and untestable hypotheses. It was determined the methodology may result in incorrect determinations of the ignition source and first fuel ignited. Where all hypothesized fire causes have been eliminated and no facts point to a cause the investigator=s only remaining choice is to opine that the cause is undetermined.
Without scientific evidence and sound logic, the adjuster cannot rely on expert testimony based on the negative corpus methodology to conclude a fire was arson or of incendiary origin, by the insured or anyone else. While the insurance company can and should provide law enforcement with factual and scientific evidence uncovered during the claims investigation that objectively points to fraud and arson, the adjuster and the expert must consider how strongly he or she may safely suggest any pursuit of criminal charges against the insured. In the past some adjusters have pushed, urged or suggested to law enforcement that it should proceed with criminal charges based on the expert's negative corpus theory of arson, presumably in order to reinforce the insurance company's denial of coverage. Today, such actions by the adjuster or the insurance company, in the light of recent case law and the revision of NFPA 921, might be found to be lacking in the good faith and fair dealing inherent in every insurance policy.
"Each company, no matter how large or small, is accountable for the actions of its claims representatives and supervisors. Without proper training, insurance companies cannot be confident that their claim representatives and supervisors are handling claims responsibly. "