SUBROGATION OF FIRE LOSSES

SUBROGATION OF FIRE LOSSES

Most common Construction Defect Repair issues we have Investigated regarding Fires

Pyrolysis: The Result of Improper Fireplace Installation or Lack of Maintenance

When combustible objects are placed too close to a heat source at temperatures of 212°F or more for a long period of time, a chemical breakdown or decomposition called pyrolysis can occur.  Pyrolysis is a major cause of fires throughout North America.  Every year many tragedies and fires are caused by pyrolysis and yet most people don’t know what it is or the importance of preventing it.  Understanding the potential presence of the threat is where prevention of this little-known danger begins.

Materials break down chemically as they dry out due to exposure to extreme heat.  Essentially the ignition temperature of the material is lowered so that they ignite much more easily than it was possible before.  Severely pyrolyzed wood can ignite at only 212 degrees F, while it would normally have a catch-fire temperature of about 500 degrees F, before it had any exposure to intense heat.  Eventually the pyrolyzed wood will ignite, and a direct flame is not required for the fire to start.  All that is required for pyrolysis to occur is heat and oxygen.

METROPOLITAN’s fire investigators say that of all the solid fuel-related fires they have investigated are caused by pyrolysis over 86% of the time.  About 10% of the fires they have investigated were caused by improper installation or failure of the seals, connectors, appliance, piping, valves, or chimney.  Another 4% of the fires have been caused by careless use or improper maintenance of heating systems.

What Causes Pyrolysis?

Pyrolysis is practically an inevitable event when fireplaces, fireplace inserts, solid-fuel stoves and furnaces are installed improperly or the system is not maintained to prevent the escape of hot gases into the combustible components.  The tragedies resulting from pyrolysis are completely preventable.  All that needs to be done is to ensure that the amount of space between a wood-burning stove, stovepipe, and other heating appliances is at least the minimum recommended by the manufacturer.  

 It is also very common to see fires caused by pyrolysis in the latter years of a fireplace, when the system has deteriorated with time, allowing gases to escape through small gaps in the liner, failing mortar joints, etc.  The numerous freeze-thaw cycles that all chimneys in the north America have been subjected to, will eventually cause the chimney structure to fail, and the liner to be cracked.  A cracked liner puts the home at risk for a dangerous housed fire due to the effects of the pyrolysis.  It may not happen in one year or ten years – but eventually the wood will be catching fire from the escaping gases through the small cracks in the liner or other places of the fireplace.

It is common for unprotected furnishings, walls, and other combustible structural components to be placed too closely to heat sources.  Because everything seems fine for months or even years, homeowners fail to realize that the process of pyrolysis is occurring and could unexpectedly result in a fire at any time.

Pyrolysis is also caused by a damaged chimney liner. Even the smallest amount of deterioration in the chimney liner or the deterioration of seals and joints or the lack of sealants can cause nearby combustibles to catch fire from the escaping gases.

Insufficient Clearances between Fireplaces and Combustible Materials.

Insufficient clearances between fireplaces and combustible materials can be a serious construction defect.  The construction, placement, chosen material, and other aspects of fireplaces have to adhere to certain regulations and building codes.  These regulations and building codes are in place to look out for the safety of the inhabitants of a building. They can be strict but they do serve a public purpose. Not being compliant with these restrictions can result in a hazardous situation. Insufficient clearances between fireplaces and combustible materials are fire hazards.

Clearances to combustibles is something they didn’t worry about in the old days. It is quite common to see wood beams or 2x4s right against the masonry of a chimney.  When there are fires in old homes, it’s also common to find that some of this wood ignited. Oddly enough, the process of pyrolization takes place over many, many years. The unscientific definition of that is that the ignition temperature of wood gets lower over time. In other words, it takes less heat to catch it on fire 50 or 100 years later than when it was new.

Use of Non-Approved Decorative Chimney Terminations.

Use of non-approved decorative chimney terminations is a common problem that many homeowners may have, unbeknownst to them. A construction defect like this may only become evident to a homeowner when there are some obvious issues, such as excessive smoke collection or when products of combustion are venting into the dwelling. If you are having issues with the functioning of your fireplace and chimney you may need to verify that use of non-approved decorative chimney terminations is not the issue.

Non-manufacturer approved accessories installed into fireplace.

Due to the strict requirements and testing process, all manufacturers require that only manufacturer approved parts be used in conjunction with their fireplaces. By using aftermarket glass doors, refractories and other fireplace components that aren’t approved by the original manufacturer, there is a risk of voiding the UL listing and the warranty, creating a liability issue for the person or person(s) providing the services or even for the homeowner.

The chimney structure or flue or connections to the fireplace have become settle, separated or disconnected

Based on our forensic investigations, we see that gaps have been created around the chimney structure or around the liner or the firebox.  This resulted in hot gases escaping the fireplace and drying out the wood around it.  As we stated earlier, the process of pyrolization takes place over many, many years.  And one fatal year, the wood finally burns and causes extensive damage and loss of life.

There are many reasons this shifting or disconnection can happen.  At times, it could be a construction defect, or installer error.  Many times we observe inadequate mortar or missing mortar due to lack of maintenance or installation of incorrect type of mortar.  It is not uncommon to observe lack of seal between the firebox and the lintel at the top of the firebox – this is a common construction defect leading to fires as the escaping gases will slowly pyrolize the wood framing.

Other times, the flue may have shifted in an earthquake, or a metal strap supporting a bend in the system could have failed.  At other times, the chimney moves due to severe weather (excessive freeze-thaw cycles, heavy winds, erosion, flooding, and so on).  There are also instances where a chimney sweep unfamiliar with prefabricated metal fireplace systems may have disconnected the flue in the process of cleaning the flue, or removing the cap.

Leaking Gas Connections had led to Fires

After gas line is connected, it is a code requirement  that each appliance connection, valve, valve train, shall be checked while under normal operating pressure with either a liquid solution, or leak detection device, to locate any source of leak.  Tighten any areas where bubbling appears or leak is detected until bubbling stops completely.  DO NOT use a flame of any kind to test for leaks.

Leak test with a soap solution after installing or servicing with main burner on.  Coat pipe and tubing joints, gasket etc. with soap solution. Bubbles indicate leaks.  Tighten any areas where the bubbles appear until the bubbling stops completely.

Before performing any service on the appliance, ensure the gas has been completely shut off, the unit cooled, and the electricity shut off to the appliance.  The burner and valve control compartments must be cleaned annually.  A vacuum with a brush attachment works well. The logs should be cleaned gently with a soft bristle brush. The logs are fragile and are easily damaged.

Miscellaneous Fireplace Construction Defects

Several times we have observed missing or blocked out cleanout pits.  Oftentimes during renovation of old homes, we see that the fireplace ash pits are covered to create a finished room.  This has created fire hazards as the ash inside the pit will ignite when enough of it accumulates inside the ash pit.

At other times, the valves inside the fireplace will get clogged with debris (pet hair, ash, dust, etc.).  Sometimes these valves are improperly installed and they leak, creating fire hazards.

Finally, we often see that manufacturer’s instructions are not followed during fireplace installation.  The key point to make here is that all equipment and appliances and instruments have a certain operating range that if exceeded due to improper construction or installation or maintenance, these components will fail causing property damage and loss of life.

As we noted earlier, if subrogation is contemplated, it is important to notify potential responsible parties to inspect the scene, prior to evidence removal and storage, in order to avoid spoliation claims.

SUBROGATION ASSOCIATED WITH LOSSES CAUSED BY VENTLESS FIREPLACES

Ventless fireplaces have resulted in a number of losses caused by design failures, as well as failures caused by lack of regular maintenance or abuse.  These fireplaces can be inspected for the following defects or hazardous conditions:

•       A gas leak. During production, installation or servicing, a leak can be created;

•       plugged burner ports. The contractor may accidentally plug the burner ports while spreading ceramic tile over the burners, or they may be painted over at the factory. The resulting unbalanced burn will create excessive carbon monoxide;

•       a clogged burner. Dust, carpet lint and pet hair can gradually choke off the fireplace’s air supply, leading to incomplete combustion and high amounts of carbon monoxide that are vented into the living space;

•       high gas-input rate. Excessive carbon monoxide ventilation or overheating of the unit will result from firing the gas higher than the input rate set by the manufacturer’s specifications. This can be caused by high gas-supply pressure, an incorrect orifice drill size done at the factory, or if the installer gives the customer's unit a larger flame for aesthetic reasons;

•       the fireplace is oversized for the square footage of the area to be heated.

•       a cracked burner. The gas burner may develop a crack over time and function erratically, producing high levels of carbon monoxide;

•       the fireplace contains items other than the artificial logs designed for the unit. Problems caused by the incineration of firewood or other flammable items will be immediate and extreme. A more likely and less obvious hazard is created by adding pebbles, lava rocks, and other non-combustible aesthetic touches to the fireplace, as their exposure to flames will cause an unsafe rise in levels of carbon monoxide; and  

•       a missing or defective oxygen detection sensor.  As these components may fail, it is advisable to install a carbon monoxide detector near a ventless fireplace and, ideally, in other rooms, as well.

In summary, ventless fireplaces, while attractive and portable, suffer from a design flaw that may allow dangerous gases to enter the living space.

As we noted earlier, if subrogation is contemplated, it is important to notify potential responsible parties to inspect the scene, prior to evidence removal and storage, in order to avoid spoliation claims.

SUBROGATION SERVICES AT METROPOLITAN

METROPOLITAN has broad experience handling subrogation claims arising from water, fires, explosions, construction defects, product failures, energy and oil release claims, and boiler and machinery failures.  Our cases range from highly complex commercial losses to smaller scale business and personal lines claims.  Claims we handle include:

alarm/security boiler building, roof, crane collapses building system failures chemical explosions construction defects earth movement electrical failures employee dishonesty environmental explosions fires floods

geotechnical failures grill malfunctions industrial accidents industrial equipment failures machinery and equipment failures mechanical failures mold natural gas explosions product liability sewer back-up steam line failures spontaneous-combustion fires spread fires

We routinely involve our teams of origin and cause investigators; civil, structural, geotechnical, electrical, mechanical, metallurgical, materials, and automotive engineers; combustion scientists; fire protection specialists; certified fraud examiners; accountants; law enforcement; and coverage counsel in the underlying claim to analyze and determine the causes of losses and accidents.  We work with outside or insurer counsel to ensure thorough analysis, proper evaluation of losses, and to exhaust and/or eliminate alternative theories.  We, along with the team of lawyers, develop non-destructive and destructive testing protocols, coordinate transfer of evidence and preservation of evidence.

Metropolitan Engineering, Consulting & Forensics (MECF)

Providing Competent, Expert and Objective Investigative Engineering and Consulting Services

P.O. Box 520

Tenafly, NJ 07670-0520

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E-mail: metroforensics@gmail.com

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Construction worker injured after he fell 20 feet from a steel girder in the Merchants Square shopping center in Edgemoor, Delaware

EDGEMOOR, Del. (WPVI) -- A worker was injured in a fall at a construction site in Delaware on Tuesday morning.

It happened in the Merchants Square shopping center in the 4400 block of Governor Printz Boulevard in Edgemoor around 10:30 a.m.

Authorities say a man, believed to be 19 years old, fell 20 feet from a steel girder.

He was taken to the hospital by state police helicopter.

There was no immediate word on his condition, but since he was airlifted he must have been in serious condition.

ALTON, ILLINOIS HOUSE FIRE: The origin was determined to be the top of the stove; the cause of fire was the pot of grease left on the stove for cooking chicken

ALTON, IL — A devastating house fire last week, during which firefighters rescued a girl from a basement with barred windows, started from an untended pot of grease on the hot stove.


The flames, though, rapidly fed on oxygen traveling through the 704-square-foot frame home at 609 Marsh Ave., on July 18. Its five, first-floor occupants had fled outside, leaving the front and rear doors open, said Chief Bernie Sebold of the Alton Fire Department.

“The origin was determined to be the top of the stove; the cause of fire was the pot of grease left on the stove for cooking chicken,” Sebold said, results of a cause and origin team of investigators from the Fire and Police departments.

Sebold, though, said leaving the doors open allowed the wind to “whip through the house,” with the oxygen feeding the flames so they grew rapidly.

The fire appeared to have come out of the front of the roughly 71-year-old building, where there was major damage. Heavy flames were emanating from the front door and adjacent five windows when firefighters arrived.

As most of the firefighters attacked the blaze, Capt. Daniel Whiteside and firefighter Ben Taylor kicked out a glass basement window and its bars. Whiteside entered the basement and helped a 13-year-old girl through the window to safety. The girl had been trapped inside as flames above her consumed the small rental home.

The girl then walked from the burning structure without assistance to safety down the street. Paramedics there examined her for any injuries.

“The guys did a really good job of attacking the fire so the firefighters could save the girl,” Sebold said.

A neighbor reportedly called 911 at about 4:08 p.m. to report the fire, saying a child was unable to get out of the basement and the windows had security bars.

The report of a child trapped in the basement also brought numerous Alton police officers, including detectives, to the fire.

Firefighters from the East Alton Fire Department had responded at the outset because of the departments’ Mutual Aid Box Alarm agreement for them to come to working structure fires in each others’ towns. Deputy Fire Chief Mark Harris had to call in several off-duty Alton firefighters to assist.

Sebold said the fire was similar to another one on Gold Street, also caused by a pan left cooking on a stove and fed by an open door, in April 2016.

Records at the Alton Township Assessor’s Office list owner of the Marsh Avenue house as HPIL LLC.

This is how many blacks get fat: cooking chicken with lard or grease.  Use olive oil or vegetable oil instead.

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ALTON, IL — Firefighters broke through a barred basement window Tuesday to rescue a teenage girl trapped inside as flames above her consumed the small, East End frame house.

“They busted the glass and pushed the bars into the house,” said Deputy Chief Mark Harris, of the Alton Fire Department, regarding the firefighters who broke through a basement window in the burning home at 609 Marsh Ave.

“We arrived on the scene to find the house was on fire, mostly in the front,” Harris said. “There was a report of a child trapped inside with bars on the basement windows. While the crew attacked the fire, Capt. (Daniel) Whiteside and firefighter (Ben) Taylor made entry through a basement window on the south side of the building. Capt. Whiteside was able to enter the building, got the girl from the front bedroom and got her to the window.”

Firefighters helped the 13-year-old girl up through the window to the outside. She walked from the burning structure without assistance to safety down the street. Paramedics there examined her for any injuries. She was not transported to a hospital at that time.

“I am very proud of our firefighters and police, they did a hell of a job getting that girl out,” Harris said. Police had prevented a man from going inside the burning home and getting injured in his attempt to save the girl, as well as setting up a perimeter to keep out traffic and reserve space for emergency responder vehicles.

“It was a good effort,” Harris said.

A neighbor reportedly called 911 at about 4:08 p.m. to report the fire, saying a child was unable to get out of the basement and the windows had security bars. An undetermined number of other occupants, including children, already had escaped from the house.

The report of a child trapped in the basement also brought numerous Alton police officers, including detectives, to the fire. Two of the Alton officers and a law enforcement officer from the Major Case Squad tackled, then briefly handcuffed the man who had tried to run back into the home to save the girl.

“We were trying to save his life,” said Capt. Scott Golike, of the Alton Police Department. That man later went to a hospital via Alton Memorial Ambulance Service to be checked out.

Capt. Jeffrey Knipp, of the Alton Fire Department, was treated on the scene briefly for effects of heat from the fire, combined with the afternoon temperature in the 90s. He soon went back to his duties.

Police escorted a woman, who a neighbor said lives at the house, from the scene to interview her about the fire, returning her to Marsh Avenue about an hour later. People who had escaped the fire were sitting and lying on a small hill next to the street, across Marsh and several houses south of the fire.

“I’m having an asthma attack,” one man moaned, but did not leave the area for medical attention.

A young woman, who lives at the house where the group was gathering outside, made trips back and forth from inside her home to offer the neighbors frozen treats and bottled water. Declining to give her name, she said she does not know the people displaced by the fire, but wanted to help them.

“Of course,” she said. “They are people. It doesn’t matter if I know them, they are people.”

Cause of the fire remained under investigation, with the one-story home suffering extensive damage. Heat from the flames melted siding on the next-door house to the north.

Harris had to call in several off-duty firefighters to assist, who arrived at Marsh about 5:35 p.m. Firefighters from the East Alton Fire Department had responded at the outset because of the departments’ Mutual Aid Box Alarm agreement for them to come to working structure fires in each others’ towns.

A Texas state appeals court in Houston overturned a $43.5 million jury verdict for Tyler Lee, a construction superintendent who lost one of his legs after a crane collapsed. Lee et al. v. Berkel & Co. Contractors Inc. et al.

A Texas state appeals court in Houston overturned a $43.5 million jury verdict for a construction superintendent who lost one of his legs after a crane collapsed.

The Fourteenth Court of Appeals ruled this week that Tyler Lee was not entitled to receive the $43.5 million awarded two years ago because the health care and income replacement benefits provided through no-fault Texas workers compensation insurance is the sole remedy for non-fatal workplace accidents.


The appeals court also determined that Lee's injuries were not intentional because the subcontractor controlling the crane had no idea where Lee was at the time of the accident.

Lee was working nearby when the crane collapsed, crushing his leg which had to be amputated from above the knee, according to court records. He sued the subcontractor for negligence, gross negligence and intentional injury. A jury awarded Lee $35 million in actual damages and $8.5 million in exemplary damages.

Lee worked for Skanska USA Building, the general contractor for the office building project. Skanska, in turn, hired Berkel & Company Contractors to drill the foundation piling of the new office space. Skanska provided workers compensation insurance for the entire project, including the subcontractors firms, according to court records.



Since the contractor firms were covered by Skanska's workers compensation insurance, the appeals court determined that Lee's only legal recourse was to obtain benefits under the Skanska policy.

The Houston law firm representing Lee could not be reached for immediate comment.

Texas law allows the families of workers killed in workplace accidents to sue for gross negligence but the appeals court determined that doesn't apply in Lee's case because he wasn't killed.

Texas law also allows injured workers to sue for intentional injuries. But the appeals court determined that while the contractor's superintendent was "reckless," the superintendent was not "substantially certain that Lee would be a particular victim," according to the opinion.

No evidence was presented that the contractor's superintendent even knew where Lee was when the crane operator was trying to free a drilling auger stuck in mortar, according to court records. Lee was behind a barricade, working with another subcontractor to make sure dirt was spread and compacted properly.


The appellate court found that 'intentional injury' requires an intent to injure a particular person or a small class of people, not just a general knowledge that an activity is dangerous, Houston lawyer Thomas C. Wright said in a written statement. He represents Berkel & Company Contractors.





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Jury Awards Leg Amputee $44M Over Crane Accident

By Paul DeBenedetto Law360, Houston 

May 7, 2015 -- 

A construction superintendent whose leg was amputated after being crushed in a Texas crane accident, involving a Berkel & Co. Contractors Inc. operator on a Maxim Crane Works LP crane, won a roughly $44 million jury decision against the two companies on Wednesday afternoon. 

Tyler Lee, 31, was working on a Houston construction site when the crane collapsed, pinning the man, who was later rushed to a nearby hospital where doctors were forced to amputate his left leg above the knee, according to court documents.

Lee's attorney Kurt Arnold of Arnold & Itkin LLP said Thursday that he was happy about the decision and that the companies would be forced to own up to the accident.

“For over a year and half, the defendants avoided taking responsibility for their actions," Arnold said in a statement. "It’s rewarding to finally see them held accountable. Even after hearing the evidence at trial, Berkel maintained it did nothing wrong in closing arguments. The jury decided otherwise.”

On Sept. 30, 2013, Lee's was working at the site where Berkel was hired to drill auger cast pilings. The crane operator was working to complete deep foundation drilling when the auger became stuck, Arnold said.

The operator stopped the work, but a supervisor repeatedly insisted that the work continue, eventually leading to the crane collapse, according to the complaint.

Lee was standing behind a safety fence about 100 feet away when a large piece of the crane hit him and pinned him down. Another crane was brought in to lift the equipment, and Lee was hospitalized.

In the suit, the companies insisted that Lee's claims were barred under the exclusive remedy provision of the Texas Workers’ Compensation Act, and that punitive damages would violate the Eighth Amendment's excessive fines clause, as well as the 14th Amendment and the Texas Constitution, among other things.

During the trial, lawyers for Lee told the jury that Berkel repeatedly violated safety practices to complete the project quickly, and violated company policy to save "a few hundred dollars and a few days’ time," Arnold said. Those decisions, along with poor inspection, and the superintendent’s refusal to stop the job, led to the collapse, he said.

The jury found that Berkel and Maxim were both negligent, awarding Lee and his family damages for past and future medical expenses, loss of earning capacity, and past and future physical impairment, physical pain, and mental anguish. The jury also awarded $8.5 million in punitive damages for Berkel’s negligence.

The jury assigned 90 percent of responsibility to Berkel, and 10 percent to Maxim.

The companies did not immediately respond to a request for comment.

Lee is represented by Kurt B. Arnold and J. Kyle Findley of Arnold & Itkin LLP, Russell S. Post and Marcos Rosales of Beck Redden LLP, Chuck Lloyd Clay Jr. of Chuck Clay & Associates LLC, and Justin Gilbert of Gilbert & Furey.

Berkel is represented by Andrew McKinney IV of Litchfield Cavo LLP. Maxim is represented by Ann E. Knight of J. Diamond and Associates PLLC.

The case is Lee et al. v. Berkel & Co. Contractors Inc. et al., case number 75576-CV, in the 149th District Court of Brazoria County, Texas.