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The importance of showing that there is a claim for smoke damage | Legal insurance blog about property insurance



As fires continue to destroy California again, countless homes and businesses have been destroyed. However, the destruction of buildings and other property does not even begin to reflect the actual extent of damage to wildfires. Thousands more homes and businesses have been affected by smoke damage. Unfortunately, some insurance companies will refuse to admit smoke damage alone if a property was not affected by a fire. If you can show that smoke has really affected a building and personal property, you can also show damages and the insurer will be held liable to pay to return the smoke-affected property to its pre-loss status. To present a smoke damage report, it is absolutely necessary to understand how smoke damage occurs. A fire smoke, which often comes from several miles away, can be carried into a home. There are several ways for smoke to enter a home including valves, chimneys and openings around windows and doors. A home affected by an evacuation of a wildfire is particularly vulnerable to smoke intrusion because owners often leave with a moment's notice for safety reasons and potentially leave windows open.

Wildfire fumes contain combustion products ("CBP"), which are gases and small particles generated when materials burn. Particles in wildfires that can enter a home include ash, soot and char. Ash is the residue that remains when a substance is burned. Ash includes trees and vegetation but can also include building materials or other burned items. Char is a black carbon substance that is produced when a substance or material does not burn completely. It's darker than ash. Sod is also a black carbon that is produced when a fire material is not completely burned. It is finer than char and will stick to the home's materials and property. CBP can cause property damage and often requires special cleaning.

The best way to show the presence of CBP in a home and on property is to test for their presence. Both surfaces and the air inside a building can be tested for CBP. Testing should be performed, whenever possible, by a certified industrial hygienist ("CIH"). A CIH's training and specialization includes air sampling and instrumentation, technical controls / ventilation, health risk analysis and toxicology. It is important for a CIH to locate and test in all areas with potential smoke entry. Insurers will often hire their own CIH. These CIHs are usually required to perform mass testing after a wildfire, which requires the CIH to test several homes in an area in a short period of time. This predictably leads to sloppy testing and failure to locate the areas of a home that are most vulnerable. We have also seen that an insurer's CIH on several occasions avoids testing areas in a home where most CBP is found. Thus, if you do not keep your own CIH, a carrier will often use its insufficient CIH test as a basis for denying that there is smoke damage.

The latest Nine Circuit opinion in Shirley v. Allstate Ins. Co. No. 1

9-56066, – – – Fed. Appx. – – -, 2020 WL 5991156 (9th October 9, 2020), gives a lesson in the importance of showing damages. In this matter, the insured evacuated their home due to an intrusive wildfire. Although the home was not damaged by the fire, it was surrounded by a blaze of fire. The presence of smoke was undisputed. The home smelled of smoke, the insured's clothes still smelled of smoke after cleaning, the windows were left open when the insured were evacuated and the insured noted that the smoke was so thick when they left, it was necessary to use GPS to get out of their neighborhood. Despite what appears to be indisputable evidence of smoke damage, Allstate denied the claim and both the district court and the Board of Appeal confirmed the denial because CPB was not present after several tests had been performed. Allstate agreed that if CBP was present, that there was smoke damage. Three different CIHs performed testing. The first was a CIH maintained by the insured. No CBPs were found during the testing. Allstate maintained its own CIH for testing, which performed the testing along with the insured's CIH. Again, no CBP was present. At the insurance request, Allstate kept a third CIH to test the home again, and again no CBP was found. Without showing any smoke-related particles in the home, the court agreed that there was no smoke damage. Despite the overwhelming evidence that the home and its contents were flooded with smoke, physical evidence of smoke particles was necessary to establish damage.

This case shows the importance of good testing. Based on what we can gather about this statement, there should have been CBP in the home. What is still unknown is how thoroughly the home was tested. It seems that the insured's CIH may not have identified the areas of the home where CBP had resided. It is therefore important to fully evaluate all entry routes and determine where CBPs could have settled. Insurance companies are notorious for ignoring attics, crawl spaces and garages, areas that often offer direct routes for smoke. Winds are a particularly critical area as CBP can be distributed through a building days and even months after a wildfire.

Smoke damage is real and your property requires special cleaning. Remember to take steps to show that there is smoke damage and never blindly trust an insurer's conclusions.


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