In an earlier post, we examined some key points to structuring and winning a civil arson/fraud trial against an insured suspected of misconduct in the making of an insurance claim. We resume our examination in Part II of Winning the Arson/Fraud Case.
Your Claims Adjuster and Claims Witnesses Must Be Demonstrably More Credible Than The Insured(s)
This is a vital assessment which must made in an objective, detached manor. Hoping that your claims staff will appear more credible than the insured is not sufficient grounds to proceed to try the arson/fraud case. A reasoned, detached analysis of the insurer witnesses must be done to determine whether they, individually and as a whole, will stand up to the scrutiny of the jury, and be judged more credible.
Beware of the landmines here. How can claims staff be cross-examined? Are there any troubling issues in their employment histories? Do they appear to be partial or biased based on the documentation in the claims file and the claims logs? Are any of them disgruntled in some way or worse, disgruntled in some way and not forthcoming about it.
Next to the law enforcement witnesses, the claims witnesses are the most important pieces in winning the arson/fraud trial. They deserve detailed vetting as soon as possible in the process.
Who Let The Dogs Out?
This is going to sound silly. But this indicator has almost never in 25 years of practicing law led me astray from assessing the proper cases to take to trial.
Did the insured have any pets? Are they normally kept inside? Did they perish in the fire, or was there some unusual event or explanation which led them to being out of the house at the time of the fire?
Arsonists love their dogs like anybody else. The average one-off arsonist is simply neither aware enough nor disciplined enough to sacrifice a family pet to create the impression of a fire of actual unknown origin. Electrical malfunctions and other accidental fires do not take time to lead otherwise confined pets to safety before they begin. Almost all arsonists do, however. The notable exception to this guideline is the rage or anger fire in which the arsonist attempts to harm a pet of the object of his anger — which is a very, very small percentage of intentionally set fires, in my experience.
Look For Mistakes
Some arsonists are more skilled than others. Few are hired professionals, and the amateurs make plenty of mistakes. Combining the stress of the circumstances which would lead an insured to commit arson for insurance benefits, and a basic lack of experience in such activity generally leads to a break or two in the fire investigation — telltale signs of intentionally set fire versus fire of accidental cause and origin.
The following mistakes have all occurred in cases I have handled, including one case in which all of the mistakes occurred in the same fire. Some of these are sure to strike you as fantastical but they all are true:
- multiple points of origin which did not communicate with each other;
- failure to ventilate the fire by opening doors and/or windows;
- leaving incriminating documents such as a mortgage foreclosure notice dated within 10 days of the fire in the area of origin;
- failing to dispose of lighters/ignition sources in the areas or origin;
- failing to plug in electrical appliances which were later offered by the insured as probable sources of an accidental fire
- writing an apology to a spouse in soot on a window following the fire (this one is not so much as a mistake as it is a confession of the subconscious, I imagine)
- using a cell phone to call a business associate about the fire twenty minutes before calling 911 Emergency Services to report the fire.
The case in which all of these mistakes occurred in the same fire was readily identified as an arson/fraud case which should be tried. And while that particular case is an outlier to put it mildly, most arson fires do not go perfectly for the arsonist, and mistakes can be identified. They should be pointed out and shown to the jury.
Do Not Forget Damages
In the bustle and effort spent establishing the insured’s liability for arson/fraud, the fact that many statutes provide a right of reimbursement and recovery to the insure is lost, and insurers as a result do not take sufficient advantage of recouping expenses and costs related to investigating the fire, and recouping claims dollars which may have been paid out during the pendency of the claim.
In many ways, an insurer used to being a defendant must become a plaintiff fur purposes of not only putting on an arson/fraud case, but also for putting on a damages case as well. Costs and claims dollars must be tracked, organized, and presented in the form of cogent damages exhibits and/or summary exhibits, preferably using the same trial presentation software as discussed in the first half of this post. SIU and other special investigators employed by the insurers, and claims staff can authenticate these items for admission into evidence.
Some states provide for recovery of multiples of such costs, and attorneys fees in the form of penalties. For that reason, they should not be overlooked if the decision to try the arson fraud case has been made.
Arson/Fraud Cases Can Be Won
While it does require thought and effort, the right arson/fraud cases can be won by insurers who take the time to identify good candidates, and work those candidates up properly for trial. The prosecution of civil arson/fraud claims can also be a source for the insurer to recoup costs and claims dollars thought to have been lost in the investigation and payment of fraudulent claims.