When it comes to fire claims, the National Fire PreventionAssociation 921 Guide for Fire & ExplosionInvestigations has been recognized by courts aroundthe country as the “gold standard” against which a fireinvestigator's methodology and practices can be gauged.

Many decisions have discussed NFPA 921's scientific method andhave analyzed an expert's opinions in the context of itsrecommendations and admonitions.

The NFPA 1033 Standard for Professional Qualifications forFire Investigator, originally published in 1987, has notgained similar recognition. The technical committee that developedthe standard intended to create clear and concise job performancerequirements that could be used to determine whether an individual,when measured to the standard, possessed the skills and knowledgeto perform as a fire investigator, both public and private.

The 2014 edition of the standard calls for the investigator tohave an up-to-date basic knowledge of 16 subject areas beyond thehigh school level, including fire science and chemistry,thermodynamics and explosion dynamics, hazardous materials andfailure analysis, and electricity and electrical systems. Theinvestigator is to remain current in these topics by attendingeducation courses, workshops and seminars or through professionalpublications and journals. NFPA 1033 sets out numerous areas ofspecific requisite knowledge and skills which the investigator mustpossess to conduct the scene examination and documentation,evidence collection and preservation, to conduct interviews,perform post-incident investigation and more.

The detailed nature of the requisite knowledge and skills calledfor by the standard provide ample cross-examination material for alawyer challenging a fire investigator's knowledge andqualifications. Few fire cases proceed toward trial without motionsto exclude the opinions of the fire investigators involved. Thestandard would seem to provide an objective measure ofqualification that would appeal to judges who must decidechallenges to a fire expert's credentials. Courts have been slow toadopt or utilize NFPA 1033 in questioning, analyzing or decidingupon a fire expert's qualifications.

Several court decisions have mentioned NFPA 1033 simply inpassing without attempting to use the standard to gauge an expert'sability to testify. (Muth v. Woodring, M.D. Pa., 2015) Nocourts have excluded a fire investigator due to inability toestablish requisite knowledge and skills under NFPA 1033. Indeed,the only decision to approach recognition of NFPA 1033 as anobjective standard missed its opportunity.

In McCoy v. Whirlpool Corp., 214 F.R.D. 646, 648 (D.Kan. 2003), homeowners alleged that a Whirlpool dishwasher sold bySears caused a fire in their home. In their suit against themanufacturer and seller, the homeowners sought to exclude thetestimony of the defendants' fire expert, Mr. Dyer. They arguedthat because Dyer did not reference NFPA 1033 on his resume, therewas no evidence that he was qualified to render cause and originopinions. The Court noted that the plaintiffs did not attempt topoint to any respect in which the expert failed to meet NFPA 1033.It found that:

Dyer's report establishes that he possesses a wealth ofspecialized knowledge in fire investigation and if he does not meetthe NFPA standard — in some respect which plaintiffs have declinedto articulate — that matter goes to the credibility and weight ofhis testimony.

The McCoy decision supports an argument that a failure to meetNFPA 1033's criteria is not fatal to the admissibility of the fireinvestigator's opinion.

While it has been suggested that NFPA 1033 will be taken up bythe courts as a tool to measure an expert's qualifications, itremains essentially unused. Nevertheless, fire investigators wouldbe well advised to embrace the standard, comply with it, and notesuch compliance in their resumes and reports. Investigators shouldbe prepared to document their compliance in anticipation ofcross-examination based on NFPA 1033. Claim professionals andattorneys considering employing a fire investigator should confirmthat the investigator will stand up to NFPA 1033 scrutiny if theclaim proceeds to litigation.

Alexander M. Andrews, J.D., is partner-in-charge of theColumbus office of Ulmer & Berne LLP. His fire litigation practiceincludes product and general liability defense, first-party fraudand arson investigations, and large-loss fire subrogation. He canbe reached at [email protected].  

Related: Subrogation and the fire expert