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Vol. 11, Issue 3

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How Have NFPA 921 and 1033 Impacted Fire Origin and Cause Investigations?

By Clinton A. Roberts, Jr.

  Science plays a major role in the many changes affecting our lives. Correspondingly, it has changed the world of the Fire Investigator. Intuition now has been replaced with science. The Fire Investigator can no longer base findings on their years of experience or a “gut feeling.” The final determination for the cause of a fire must be based largely in part on science.
In 1992, the National Fire Protection Association (NFPA) created, NFPA 921 “Guide for Fire and Explosion Investigations” which standardized how fire investigations should be performed by both public and private Fire Investigators. NFPA 921 ensured that Fire Investigations would have established guidelines and recommendations for the safe and systematic investigation or analysis of fire and explosion incidents” [NFPA 921-2014, section 1.2.1]. Now, Fire Investigators must apply the Scientific Method to their investigation.
NFPA 921:
  • Largely based on the science behind fire (and its behavior), view fire at its molecular level.
  • Requires that all possible causes for the fire be considered when determining what caused the fire.
  • States that all data collected is to be analyzed and used to develop the Fire Investigator’s hypothesis as to the cause of the fire.
  • Ensures that the Fire Investigator’s theory as to the cause of the fire be tested and defendable.
To make certain the Fire Investigator was qualified and skilled in the field of fire investigation, the National Fire Protection Association (once again with the aid of many experts) created NFPA 1033 “Standard for Professional Qualifications for Fire Investigator.”
NFPA 1033:
  • Requires the Fire Investigator to be educated and trained in the application of the NFPA 921 standard.
  • Highlights the basic areas of education and training for Fire Investigators to become and remain qualified to apply the Scientific Method when performing investigations.
NFPA 1033 describes 16 areas of education that range from fire chemistry to evidence documentation, collection and preservation. Other areas of education included are computer fire modeling and electrical systems. NFPA 1033 also requires documented ongoing continuing education and testing of Fire Investigators.
Since the introduction of NFPA 921 and 1033 the world of the Fire Investigator has now become a world shaped by science. However, it is the Fire Investigator’s basic need to find out the “how” and “why” of fires that will continue to push the science of fire investigations even further.
 
 
If you have questions about fire origin and cause investigations, please contact Clint Roberts at croberts@brackenengineering.com.

 
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Pounding the Gavel on the Frye V Daubert Debate

By guest author Maria Elena Abate, Esq.

  On February 16, 2017, with a 4-2 decision, the Florida Supreme Court declined to adopt an amendment to section 90.702 of the Florida Evidence Code requiring use of the federal “Daubert” standard.
 
This month we asked Maria Elena Abate, Esq., a Shareholder at Colodny Fass to summarize what this decision means moving forward for expert witness testimony in Florida.
 
In 2013, the Florida Legislature amended Florida Statute Sections 90.702 and 90.704 to adopt the federal "Daubert" standard for admission of expert testimony in court proceedings. On February 16, 2017, due to “grave constitutional concerns” regarding access to courts and litigants’ rights to have their disputes determined by a jury, the Florida Supreme Court declined to adopt these legislative amendments as part of the Florida Evidence Code, to the extent that the amendments are “procedural” in nature.   In Re: Amendments to the Florida Evidence Code, Case No. SC16–181, 2017 WL 633770 (Fla. February 16, 2017).
 
To understand the significance of the Court’s refusal to accept the changes, we need to examine the role that the courts and the legislature play under the state constitutional framework. Under Florida’s Constitution, the Supreme Court has the exclusive authority to adopt rules for practice and procedure in all courts. See, Art. V, § 2(a) Fla. Const. In fact, it was under this very authority, that the Court adopted the Frye standard nearly thirty years ago. For almost as long, the Court has steadfastly declined to adopt Daubert, even though a vast majority of other states have turned to the federal standard or a combination of Daubert and Frye.
 
The Florida Legislature on the other hand, is empowered to enact substantive law. Thus, in passing the two amendments to the Florida Evidence Code which adopted Daubert in 2013, the Florida Legislature attempted to sidestep the Florida Supreme Court’s historical refusal to restrict the type of expert opinion that can be presented to a jury.  This, in turn, was flatly rejected by the Court. What the February 16th Florida Supreme Court opinion means, however, is still subject to interpretation.
 
Indeed, as the majority opinion points out, the pivotal questions of 1) whether or to what extent the Daubert test is procedural or substantive; and 2) whether or not the legislative changes are constitutional have not yet been answered: “…[W]e decline to adopt the Daubert Amendment to the extent that it is procedural, due to the constitutional concerns raised, which must be left for a proper case or controversy.”
 
In a passionately written dissent, Justice Polston, joined in concurrence by Justice Canady, points to the “36 states that have rejected Frye in favor of Daubert” and questions: “Has the entire federal court system for the last 23 years as well as 36 states denied parties' rights to a jury trial and access to courts? Do only Florida and a few other states have a constitutionally sound standard for the admissibility of expert testimony?”  The answer, according to the dissent: “Of course not.”
 
It is likely that these constitutional concerns will be re-addressed in a “proper case or controversy” given the numerous court decisions which have been issued based on Daubert, from 2013 until the Court’s recent pronouncement. Yet, however, the decision ultimately turns out, the Florida Supreme Court’s refusal to amend the Florida Evidence Rules signals a practical return for practitioners to the less restrictive Frye standard, which applies only to expert testimony based on “new” or “novel” scientific evidence and revolves on whether expert testimony is “generally accepted” in a scientific community.
 
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The Top Items Covered at Xactware 2017

By Gregg T Golson, CPCU,ACS,AIC,AIM,AINS,AIS,API,CSM

1.  The latest cutting edge time-saving estimating technology that includes and relies on remote-sensing technology, drones and more accurate measuring tools.
2.  The newest technology in weather forecasting that recently debuted during Hurricane Matthew. GOES -R (Geostationary Operational Environmental Satellite-R Series), the next generation of geostationary weather satellites, provides three times more spectral coverage, at four times the spatial resolution, and is five times faster than the prior system.
3.  The Top 10 Building Code Questions encountered when preparing estimates presented by Robert L. De Loach Jr. of Bracken Engineering.
4.  Additional panel discussions on topics ranging from customer service to issues facing property insurance carriers including the Assignment of Benefits issue here in Florida.

If you have any questions regarding construction estimates, please contact Rob De Loach at rdeloach@brackenengineering.com.
 
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