One important point from yesterday’s blog, Smoke and Soot Are Covered Causes of Loss, is that there needs to be findings of microscopic particulate of a sufficient degree related to the fire event in question. I cannot overemphasize that insurers do not have to pay for damage that is not proven because there may be no factual damage.
The court noted that there needs to be witnesses and physical evidence for a jury or judge to agree that damage occurred:
[E]ven Travelers’ own specialist testified that he would need to see additional sampling—sampling that Travelers neither performed nor requested to have performed—to be certain as to whether the soot posed a health hazard. Further, a witness who works as a public health specialist and industrial hygienist testified that test scores indicating a “moderate” amount of soot—a result achieved by nineteen of the seventy-two samples—are “out of the ordinary” and “not something to be ignored.” The same witness also testified that even scores representing a “significant” impact—a result achieved by twenty-nine of the seventy-two samples—was “another level of problem” that indicated “a real significant source or sources” of combustion particles. And, regarding the FBS consultant’s qualifications, while Travelers is correct that he lacked advanced scientific degrees, the jury was also informed that he had been a licensed building code official for seventeen years and as such had completed over 400 hours of classroom training, including annual training on hazardous materials. The FBS consultant testified that upon discovering the soot he was ethically required to inform Maxus of its hazardous nature and that his soot remediation plan was designed to comply with several national standards. 1
Currently, I am aware that a number of hygienists are trying to publish and establish suggested standards to determine how much testing and where the testing should be made at a loss site where smoke, soot, and ash are expected to be found behind walls and in other areas of a building. There does not appear to be a recognized standard for where and how many samples are to be taken to look for the microscopic particles of smoke, soot, or ash. If somebody knows of such a standard, I would be happy to receive such information and publish it for all.
The burden is usually on the policyholder to prove that a loss occurred and that it took place during the policy period. This means that the findings also have to be that the particulate was not from somebody smoking, a prior fire incident, the fireplace, or even smoke from the grill right outside the home. All these issues are typically raised by the insurer in these types of cases.
Thought For The Day
“Giving up smoking is the easiest thing in the world. I know because I’ve done it thousands of times.”
—Mark Twain
1 Maxus Metropolitan, LLC v. Travelers Prop. Cas. Co. Of America, No. 24-1176 (8th Cir. Aug. 28, 2025).
#Smoke #Soot #Ash #Testing #Important