Poor investigation practice becomes exposed in insurance litigation

When an insurance claim reaches court or mediation, minor lapses in evidence collection can have significant repercussions, often surfacing years after the incident. Here, the credibility and admissibility of evidence play a pivotal role. Therefore, forensic investigators must systematically document the scene and avoid biases that might influence conclusions. They must also be sure to retain and document all necessary information.

Initial investigation

Forensic investigations are integral to many insurance claims. Whether the loss is complex or expensive or if questions about causation and liability are anticipated, insurers and their loss-adjusting partners frequently request forensic investigation. As part of that investigation, pertinent evidence is often retained for future examination with other interested parties. However, the rigour of an investigation is often only tested if a claim reaches court years later. At this stage, evidence gathering, adherence to due process, and the chain of custody are scrutinised. Even a straightforward fire claim may unravel in court if the scene investigation is identified as not thorough enough and gaps in the evidence are identified. 

The completeness, reliability and admissibility of forensic evidence are often decisive in determining a case's outcome. Although the court is the ultimate test of proof, most disputes find resolution in mediation. A robust approach to evidence collection strengthens all parties’ positions, facilitating smoother negotiations toward settlement.

Key considerations

A forensic investigator’s primary duty is accurately representing the scene to the court in an unbiased manner. This requires a systematic, comprehensive approach to evidence collection. While an insurer may primarily seek to establish the cause of a loss for indemnification, the forensic investigator must think beyond those considerations and identify and address all potential legal issues through evidence gathered on-site.

This approach demands familiarity with insurance policies, including any exclusions, conditions, or endorsements that may apply, as well as factors contributing to the extent of damage. These elements can influence indemnity, recovery, and the distribution of liability in legal disputes. A simple example would be a fire in a commercial kitchen caused by a cooking incident. In such a case, whilst perhaps not directly relevant to the cause, the investigator should document the fire suppression system, maintenance records, duct cleaning, duct design compliance, any modifications affecting compliance, and fire separation adequacy between units.

Key hurdles

Many cases falter due to doubts arising from incomplete evidence capture. Poor evidence capture often stems from expectation or confirmation bias, where an investigator unconsciously interprets evidence to fit preconceived notions, influencing investigative choices. This often results in their excluding evidence, thus leaving it behind, which doesn’t fit their preconceived idea of the case. This is indicative of poor practice, and a well-trained investigator will undertake impartial investigations free of confirmation bias. 

Without a systematic examination, bias can lead to selective evidence gathering that only supports a favoured conclusion. A forensic investigation should be "evidence-led," emphasising objective evidence presentation as the basis for decisions. Poor evidence capture usually follows the opposite pattern, with investigators justifying evidence explanations, presenting findings with supporting details, and opinions disconnected from specific observations. Such evidence may seem persuasive until scrutinised by another expert, who may reveal inconsistencies.

Preventing gaps in evidence capture 

International standards in forensic science stress that “scene examination is the initial step in forensic processes, and the treatment of an incident scene determines the quality and quantity of information available for investigation and ultimately as court evidence.” Ensuring a thorough scene examination by a forensic expert from the outset yields optimal results. The principle to “go early” and “go hard” is vital.

An objective review of findings throughout the investigation helps guard against unconscious bias and uncovers any weaknesses in the evidence while they can still be addressed. If the first challenge arises years later, with another party raising questions, the original scene is often long gone, leaving these questions unresolved. A strong peer review program provides greater confidence that the findings will hold up under scrutiny.