When an accident occurs, investigators must determine if a third party, such as a product designer or contractor, may be held liable due to a safety related oversight. This slideshow gives an overview of several real-world investigations and helps viewers evaluate the case for subrogation in each incident.

1. Who else owns this loss?
How to Pursue or Defend Subrogation Claims for Property
Damage Losses
Presented By: Jeffery H. Warren Ph.D., P.E., CSP

2. Mannequin Reenactment

3. Safetythroughdesign®

5. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion and Fire

15. Aristotle said in 350 BC
Accidents
are without
cause.

16. Injury or
Fatality
Incident

18. Cause
• “The fire occurred when a spark or molten globule fell into the area
from the welding operation being conducted on the precipitator above
the tank.”
• “The subsequent explosion was the vapors igniting and flashing back
inside the vapor filled head space of the tank.”

19. Conclusion
• “It is apparent that safeguards to prevent the shower of sparks and
molten globules of metal from reaching the flammable vapors in the
area around the No. 6 fuel oil day tank were not adequate.”

22. The Insurance Company
of the Welder

23. Now
In another city on another day

26. Most Property Damage Losses:
• are predictable
• are preventable
• All have A CAUSE!
• Most have MULTIPLE CAUSES!

27. Be Sure To Look at ALL the
Switches!

28. NFPA 921
Guide for Fire and Explosion Investigation 2011 Edition

29. NFPA 921 Significant features of a Fire or Explosion
• Cause of
• The fire or explosion
• Damage to property resulting from the incident
• Bodily injury or loss of life
• Degree to which human fault contributed to any one or more of the causal
issues

30. Cause No. 1
• Fire or explosion

31. T
Fire Tetrahedron
HeatFuel
Oxidizing
Agent
Uninhibited
chemical chain
reactions

32. Cause No. 2
• Damage to Property resulting from the incident

33. Cause No. 3
• Of Bodily Injury or Loss of Life

34. Cause No. 4
• Degree to which Human Fault contributed to Cause No. 1, No. 2
or No.3

35. Several Factors May Be Involved
• Fire starts when a blanket ignited by incandescent lamp in a
closet
• Factors
• Lamp hanging down too close to the shelf
• Putting combustibles too close to the lamp
• Leaving the lamp on while not using the closet

36. • Cause of fire or explosion?
Ignition source
Fuel Source
Circumstances or human
actions that caused
them to come
together
• Cause of spread of fire?
• Cause of explosion?
• Is there a design defect?

37. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• No. 6 Fuel Oil
• Material Safety Data Sheet Review
• Hazards Identification Section
• OSHA/NFPA Combustible liquid; however flammable vapors
may accumulate in tank headspace.
• Flash Point: 150F
• Autoignition:765F

38. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• Fire and Explosion Hazards (MSDS)
– When heated to flash point and mixed with air and exposed
to an ignition source, flammable vapors can burn in the
open or explode in confined spaces.
– Flammable vapor production at ambient temperatures in
the open is anticipated to be minimal unless oil is heated
above it’s flashpoint.

39. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• Fire and Explosion Hazards (MSDS)
• Light hydrocarbons can buildup in the headspace of
tanks below the flashpoint of the oil, presenting a
flammability or explosion hazard.
• Tank headspaces should be regarded as potentially
flammable, since the fuel’s flashpoint cannot be
regarded as a reliable indicator of the potential
flammability in tank headspaces.

40. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• Standards Research
• API Publication 2009 Safe Welding and Cutting Practices in
Refineries, Gas Plants, and Petrochemical Plants, Fifth Edition,
August 1988
• 1.1 Scope
– This publication provides guidelines for safe practices when
welding or cutting is performed in refineries, gas plants, or
petroleum plants

41. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• API 2009 (cont’d)
• 2.2 Work Location
– The work location must be gas free, and precautions
should be taken to prevent ignition of flammable or
combustible materials. Before welding or cutting is
performed above or near oily surfaces, the area should
be flushed with water, steam cleaned, or covered with
clean dirt or sand, or other precautions should be taken

42. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• API 2009 (cont’d)
• 3.1 Permit Requirements
Except in areas specifically designated as safe, such as welding
shops, a permit should be obtained before starting any work
that can involve a source of ignition.

43. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• API 2009 (cont’d)
• Section 4-Testing for Flammable Vapors
A competent person using an appropriate combustible-gas
indicator should perform tests for flammable vapor
concentrations before hot work is started.

44. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• API 2009 (cont’d)
• 5.4 Work on Outside Surfaces
… Hot work should not be performed on one vessel or piece of
equipment in a plant unit while other parts of the same unit
are in operation unless precautions have been taken to
prevent the release of flammable liquids and vapors into the
area.

45. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• API 2009 (cont’d)
• 2.4 Flammable Liquid and Vapor
… Operators should notify workers engaged in hot work of
actual or imminent releases of flammables or other
combustibles, such as those from relief valves,so that hot
work can be stopped immediately.

46. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion

47. Case Study W6105
Analysis of No. 6 Fuel Oil Tank Explosion
• The Hot Work Permit Asks:
4. There are no combustible fibers, dusts, vapors, gases or
liquids in the area. Tanks and equipment previously
containing such materials have been purged. The absence of
such vapors has been verified by a combustible gas detection
instrument.

48. INVOLVEMENT Matrix
Involvement or
problem Tenant Owner
Property
Manager
Sprinkler
Maintenance
Fire Origin and Cause
Sprinkler didn't work
Not enough water
Primary Action - Party involved caused the problem
Secondary Action - Party involved knew or should
have known about the problem and taken action to
resolve the problem
Involved Parties

49. INVOLVEMENT Matrix
• http://warrenforensics.com.s158756.gridser
ver.com/wp-
content/uploads/2013/01/Investigation-
Saves-Money-on-Tank-Explosion-Claim2.pdf

50. • Which switch caused the loss?
• Who is responsible for the loss?
• Is there a subrogation case?

51. •You analyze the loss with your group
•Answer the questions
•Create a Responsibility Matrix
•We’ll discuss
•You have 15 minutes

52. Be Sure To Look at ALL the
Switches!

53. Moat was not tested to check for the
presence of explosive gas mixtures
Plant
Welding
Contractor
Moat contained No. 6 fuel oil and wood
chips, both of which are flammable
No. 6 fuel oil vapors vented from day
tank into surrounding moat
A hot work permit was issued without
all of the proper safeguarding measures
being performed
Safeguarding inadequate to prevent
sparks and molten metal from reaching
flammable vapors
A hot work permit was issued while an
adjacent tank was being ventilated
Welders were not notified of the release
of flammable vapors by the plant

54. NFPA 921
Analysis of Electric Motor Failing to run on High Speed

60. Specs
The horsepower ratings are for guidance and do not limit
the equipment size. When electrically driven equipment
furnished under other sections of these Specifications differs
from the contemplated design, the Contractor shall be
responsible for the necessary adjustments to the wiring,
disconnect devices and branch circuit protection to
accommodate the equipment installed.”

65. •You analyze the loss with your group
•Answer the questions
•Create a Responsibility Matrix
•We’ll discuss
•You have 15 minutes

66. Blower motor hp & speeds revised in specs but
not in drawings before contract
Motor control center change order issued with
no accompanying revision to drawings
Specs written as to encourage unauthorized
design modifications of drawings
NIC Electric notified contractor of wire changes.
No revisions to drawings received
Blower motors installed do not match the
drawings nor specifications
No. & size of conduit & wire in drawings were
inadequate for blower motors installed
Electrical subcontractor decided to attempt to
redesign the wire & conduit himself
Submittals were not prepared prior to
performance of the work
Wire & conduit not called for in the drawings
was installed
Engineer
General
Contractor
Electrical
Subcontractor

67. CASE STUDY W4170
Analysis of Fire in Carpet Padding Facility

77. Safetythroughdesign®

78. Stop
Is risk
tolerable?
Assess risk
Other hazards?
Can hazard
be eliminated?
Can hazard
be guarded?
Provide
warnings,
procedures,
and training
Operate
the machine
More tasks?
Is risk
tolerable?
Is there
a hazard?
Identify
task
Yes
No
No
Yes
Yes
No
No
Yes
Yes
No
Yes
No
Yes
No

79. Risk Assessment Decision Matrix
Probability of
occurrence Catastrophic Critical Marginal Negligible
Frequent
Probable
Occasional
Remote
Improbable
Severity of Consequence

80. The Safety
Hierarchy
is
stable
Eliminate the
hazard
Safeguard the
Hazard
Warn
about
the Hazard
Procedures
and
training
Upside Down
is Unstable

81. Cause classifications
• Incendiary
• Natural
• Accidental
• Undetermined

82. Incendiary Fire Cause
• Cause is a deliberate human action in which the person knows
the fire should not be set

83. Natural Fire Cause
• Cause is without deliberate human intervention
– Lightning
– Earthquake
– Wind

84. Accidental Fire Cause
• Cause is not a deliberate human act to ignite or spread the fire
into an area where the fire should not be.

85. Undetermined Fire Cause
• Whenever the cause can not be determined

86. •You analyze the loss with your group
•Answer the questions
•Create a Responsibility Matrix
•We’ll discuss
•You have 15 minutes

87. Origin in Filter House
Sprinkler didn’t work
Sprinkler not inspected
Valves not locked open
Filter not cleaned
Filter in building
Not enough water
Supply pond drained
Isolation valves closed
Tenant #1 Owner
Property
Manager
Sprinkler
Maintenance

88. Subrogation
• Theories of Liability
• Products Liability Case

89. Theories of Liability
• Strict Liability
• Negligence
• Warranty

90. To Have a Products Liability Case
• Plaintiff must prove the following:
• The product was defective when used
• The defect existed in the product when it was manufactured
• The defect was the proximate cause of the injury to the
plaintiff
• The specific use of the product that caused the damage was
reasonably foreseeable

91. Types of Defects
• Design defect
• Manufacturing defect
• Marketing defect

92. Fire Hydrant Case

93. In Summary

94. During this session you heard :
• Cause first
• Responsibility second
• An Involvement Matrix may be helpful
• Engineers can help you

95. Involvement Matrix
Involved Parties
Involvement or problem Tenant Owner
Property
Manager
Sprinkler
Maintenance
Fire Origin and Cause
Sprinkler didn't work
Not enough water
Primary Action - Party involved caused the problem
Secondary Action - Party involved knew or should have known about
the problem and taken action to resolve the problem

96. Most Property Damage Losses:
• are predictable
• are preventable
• All have A CAUSE!
• Most have MULTIPLE CAUSES!

97. Be Sure To Look at ALL the
Switches!

98. Who has the first question?