Fire Case Dismissed Because Expert’s Opinions Found UnreliableOctober 19, 2012 | Category: Subro News and Cases
In American International Specialty v. Blakemore, 2012 WL 4483800 (W.D. La. Sept. 28, 2012), the property insurer paid an insured’s claim after a fire destroyed a hunting & fishing lodge valued at $1.5 million. The fire occurred almost two years after foam insulation was installed in the basement of the lodge. Two months after the fire, the insurer retained an expert to inspect the property to determine the cause of the fire. The expert issued a report and opined that the fire originated in the basement “above the gas-fired water heater and was probably caused by the ignition of sprayed polyurethane foam insulation... .” The lodge was demolished and rebuilt, and neither the foam insulation nor the water heater were retained. The defendants never had an opportunity to inspect either the lodge or any of the materials. After paying the claim, the insurer filed a subrogation action against various defendants who allegedly caused the fire. The defendant’s filed motions for summary judgement on numerous basis’ including spoliation and the plaintiff’s failure to be able to prove causation. The court never reached the spoliation issue finding instead that the plaintiff’s expert would not be permitted to testify because his opinions were “based on assumptions and contain conclusions which cannot be verified [and] the report and any testimony regarding the opinions stated therein are unreliable”. Implicit in the Court’s decision was the suggestion that because the evidence had been destroyed, even the Plaintiff’s expert could not perform tests or other necessary steps to give credibility to his opinions. The court rejected the plaintiff’s contention that other evidence was available, i.e., photographs, for the expert to rely upon because the photos were taken months after the fire and, at most, only showed where the fire started and not what caused the fire to start. Moral of the story: Get to the scene early and KEEP THE EVIDENCE!