Fire claims are intimidating, complex, anddownright incindiary—especially when arson is a potentialconclusion. The U.S. Fire Administration estimates that one inevery 10 fires in theU.S.is set deliberately. The National FireProtection Association (NFPA) reports that at least 26,500structures and 14,000 vehicles were intentionally set on fire in2011 (the most recent year for which data is available).

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Even when arson is established, it can be difficult to provethat an insured set a fire, as opposed to someone else. Since manyarsonists work alone and at night, witnesses can be tough to find,while the fire involved in the crime itself also destroys much ofthe evidence. As a result, circumstantial evidence can be critical.Debt, divorce, and financial troubles like pending foreclosure, taxliens, and bankruptcy can provide insight into the crime andmotive.

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In light of these challenges and in the face of wildfires andplant explosions, how can adjusters and other claimsprofessionals ensure their investigations are thorough, accurate,and defensible in court? Let's begin with heeding lessons from arecent arson case and the warning signs displayed on the nextpage.

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Getting Caught for Arson

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On June 17, 2008, a fire broke out at 1021 Mark AvenueinScranton, Pennsylvania. When the fire department arrived at thescene, they not only found both the residence and garage on fire,but also the neighboring residences. Samantha McDonald and herinfant son were also injured as a result of the fire.

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In 2012, after a meticulous investigation and subsequent courtproceedings, Thomas S. Gervasi, the owner of the property, wasconvicted of of six counts of arson (endangering persons), fourcounts of criminal mischief, two counts of arson (reckless burningor exploding), and one count each of arson (endangering property)and insurance fraud.

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The Investigation

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When investigating the fire, Pennsylvania State Trooper RussellAndress and Scranton Fire Detective Martin Monahan discovered thatthe fire started in the garage attached to 1021 Mark Avenue. Bothofficers spoke to Gervasi on multiple occasions during theinvestigation. Gervasi maintained that he was present at theproperty doing yard work when the fire began. He told the officersthat he did not know how the fire started and that he suspected itwas either the catalytic converter in his Cadillac Escalade or anold chain saw he had trouble starting that day.

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The investigation eliminated Gervasi's proposed causes, and anumber of other potential ones. It also revealed a large hole inthe right rear corner of the garage that had burned through thefloor. Investigators smelled an overpowering odor of gasoline whendigging through the debris in the hole and found a large number ofsteel belts from a tire at the bottom of it.

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Additionally, investigators discovered Gervasi had filed forbankruptcy in 2004. The bankruptcy was discharged unsuccessfully onJune 12, 2008, merely 5 days before the fire. They also learnedthat Gervasi owned numerous properties that were in foreclosure atthe time of the fire, including 1021 Mark Avenue. In addition,there were multiple liens and late credit card and mortgagepayments.

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After examining all of the physical evidence, interviewingwitnesses, and probing Gervasi's financial circumstances, Andressofficially declared the fire arson and arrested Gervasi.

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Trial Court Decisions

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At trial, Trooper Andress testified regarding photographs fromthe scene and his report of an experiment he conducted to test thetheory that the fire was started in a tire. As part of theexperiment, Trooper Andress stuffed cotton/polyester rags inside anold car tire, sprinkled gasoline on them, and then lit them onfire. The test was not to recreate the actual crime, but a test ofthe trooper's general theory regarding the mechanism (gasoline)used to ignite the fire.

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On December 21, 2011, a jury convicted Gervasi of the 14charges. On March 16, 2012, he was sentenced to a term of no lessthan five and no more than ten years' incarceration in a statecorrectional institution, followed by one year of specialprobation.

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The Appeal

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Predictably, Gervasi appealed the court's decision based on thefindings of the investigation (Commonwealth v. Gervasi,1533 MDA 2012, 1666 MDA 2012 [Pa.Super. 07/08/2013]).

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The appeal centered on the following questions:

  1. Was Gervasi's financial situation admissible in court?
  2. Are re-creations admissible?
  3. If one or both questions are answered in the negative, thenshould the judgment be reversed?
  4. Was he arrested late, and was the refusal to take the jury fora view prejudicial to Gervasi?

In general, appeals of admissibility evaluate the record in thelight most favorable to the verdict winner, giving the prosecutionthe benefit of all reasonable inferences to be drawn from theevidence. Evidence will be deemed sufficient to support the verdictwhen it establishes each material element of the crime charged andthe commission thereof by the accused, beyond a reasonable doubt.Nevertheless, the Commonwealth need not establish guilt to amathematical certainty. A defendant's guilt may be proven byentirely circumstantial evidence, especially in arson cases.

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Allowing Financial Evidence

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Since Gervasi failed to object at trial to the presentation ofhis financial condition, he could not preserve that issue forreview. Regardless, appellate courts give the trial court broaddiscretion, only reversing a trial court's decision to admit ordeny evidence on clear evidence that the court abused itsdiscretion. An abuse of discretion is not merely an error injudgment; it's an overriding misapplication of the law, theexercise of judgment that is manifestly unreasonable, or the resultof bias, prejudice, ill-will or partiality.

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The trial court found that evidence regarding Gervasi'sfinancial situation was relevant to establish his motive to commitarson with which the appellate court agreed. Although theCommonwealth cannot introduce evidence of financial problems inorder to suggest to the jury that some stigma be attached to theindividual defendant, the court has held that there is no absolutebar to the admission of all evidence of financial difficulties.Under such circumstances, the admissibility of the disputedtestimony should be assessed under the traditional considerationsof relevancy. In fact, evidence of specific debts may be introducedwhere the jury may clearly draw an inference that the financialdifficulties of the defendant were material to his motive or stateof mind in committing a crime.

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Evidence is not unfairly prejudicial simply because it isharmful to the defendant's case. The trial court is not required tosanitize the trial to eliminate all unpleasant facts from thejury's consideration where those facts are relevant to the issuesat hand. The court concluded that the evidence of Gervasi'sfinancial condition was relevant evidence of motive.

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Re-creating the Events

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There are three basic types of evidence thatare admitted into court: 1) testimonial evidence, 2) documentaryevidence, and 3) demonstrative evidence. Trooper Andressreenactment of the burning tire is demonstrative evidence. Thepurpose of demonstrative evidence is to render other evidence morecomprehensible. As in the admission of any other evidence, a trialcourt may admit demonstrative evidence when relevance outweighs anypotential prejudicial effect.

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The appellate court concluded that the trial court properlyhandled demonstrative evidence, as it was relevant to show that theCommonwealth's theory of how the fire started—evidence that wasmore easily understood through demonstration. Gervasi's argumentalso failed because the court instructed the jury, using languageagreed upon by the parties, on the nature of the experiment andthat it was a demonstration merely to test the trooper's theory ofhow the fire started.

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Based on these key elements, and other arguments during trialand appeal, the Superior Court of Pennsylvania upheld Gervasi'sconviction in July 2013.

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