This is the second of a two-part series examining lead contamination following the Los Angeles fire. The first part was Lead Does Not Disappear in the Smoke: What Scientific Research Is Finding Inside Standing Homes.

The first article addressed the science. Caltech researchers found that lead and other heavy metals traveled with the Eaton Fire smoke plume, entered standing homes, and were deposited on indoor and outdoor surfaces miles from the burn area. Their findings also showed that cleaning often reduced the contamination substantially, although it did not invariably eliminate it.

The insurance carriers must now adjust claims with this scientific knowledge. In my view, it would be morally indefensible and inconsistent with good faith claims handling for an insurance company to structure an investigation so that lead is unlikely to be found. An insurer cannot select the testing company, narrowly define its assignment, restrict the number and location of samples, exclude likely reservoirs of contamination, and then hide behind the resulting report as though a complete investigation occurred.

Any investigation which avoids discovering the truth to save money at the added expense of human safety seems indefensible. Yet, this is what many believe is happening, as I noted in “Are California Insurers Playing ‘See No Evil’ When It Comes to Wildfire Smoke?” 

The Investigation Must Be Designed to Find the Contamination

A reasonable investigation should be property-specific but genuinely designed to find contamination and not designed to avoid it. The testing plan should account for the path of the smoke plume, the number and age of nearby structures that burned, the construction and age of the insured home, the integrity of its windows and doors, the location of attic vents, the operation of the HVAC system, the presence of garages and crawlspaces, the types of porous materials and contents exposed, and whether children, pregnant residents, or other vulnerable people occupy the property.

The California Department of Insurance’s Smoke Claims and Remediation Task Force Report recognized that smoke contamination varies according to wind direction, weather conditions, proximity to the fire, window and door integrity, attic ventilation, and the type and operation of the HVAC system. It also recognized that smoke, char, and ash can be tracked through a home, redistributed through HVAC systems, and embedded in furniture, carpets, drywall, and other porous materials.

A single sample from a convenient countertop cannot answer whether lead accumulated in the attic, insulation, ductwork, garage, window tracks, crawlspace, bedding, carpet, furniture, children’s toys, or other personal property.  A report may accurately describe every location tested while saying very little about the locations left untested.

The Industrial Hygienist’s Assignment May Predetermine the Result

An industrial hygienist or environmental consultant may be highly qualified and still operate under an inadequate assignment. Someone decides how much testing the insurer will authorize. Someone determines what substances will be analyzed. Someone selects the rooms and surfaces. Someone decides whether the attic, HVAC system, garage, crawlspace, wall cavities, insulation, porous building materials, and personal property fall within the assignment.

Those decisions often occur before the expert enters the home. The policyholder should ask to see the assignment letter, work order, approved budget, sampling plan, property diagram, field notes, photographs of each sampling location, chain-of-custody records, raw laboratory results, communications with the adjuster, requests for additional testing, and every draft of the final report.

Who selected the sampling locations? Did the consultant ask to test other areas? Did the insurer decline to authorize those samples? Did the policyholder identify areas of concern that were ignored? Was the consultant asked merely to determine whether limited surface cleaning would be sufficient, or was the consultant asked to determine the actual extent of the contamination and prepare a complete remediation protocol?

Those are very different assignments. A conclusion that “no significant contamination was found” must always be evaluated against the scope of what the consultant was permitted to investigate. An expert cannot find what the assignment prevents the expert from looking for.

Lead Should Be Addressed Before Remediation Begins

Where lead is reasonably suspected, pre-remediation testing serves several important purposes. It helps determine whether contamination exists, where it is concentrated, and how far it traveled into the structure. It assists in developing an appropriate cleaning or removal protocol. It establishes a baseline against which the success of the remediation can later be measured. It can also protect workers who might otherwise disturb contaminated dust while moving contents, opening enclosed areas, removing insulation, or cleaning ductwork.

The Department of Insurance report summarized expert recommendations that, when lead or asbestos is reasonably likely to be present because older buildings or industrial facilities burned nearby, investigators should either test for those substances or perform the remediation under the assumption that they are present. The report also recognized that lead and asbestos can trigger specialized training, abatement, and worker-safety requirements.

An insurer that refuses reasonable pre-remediation testing is not merely disputing the price of a laboratory service. It may be preventing the policyholder, industrial hygienist, and remediation contractor from learning what must be cleaned, what must be removed, what protective equipment is necessary, and what type of contractor is qualified to perform the work. Saving the cost of testing can become an expensive mistake when an inadequate cleaning process spreads contamination or forces the work to be performed twice.

Post-Remediation Testing Answers the Most Important Question

Pre-remediation testing asks what must be done. Post-remediation testing asks whether it worked. The purpose of remediation is not to generate an estimate, produce an invoice, or make the property appear cleaner. The purpose is to remove the contamination and restore the insured property.

The Department of Insurance report states that testing can determine the presence of contaminants before remediation and measure their levels afterward. It specifically recognizes that testing can quantify remediation effectiveness and help determine whether additional work is necessary. Where lead was identified before cleaning, there should ordinarily be an objective method for determining whether it remains afterward.

Visual inspection is not always sufficient. Lead dust may remain after a surface appears clean. Odor is not a substitute for chemical testing. A contractor’s completion certificate proves that the contractor performed the listed work. It does not necessarily prove that the contamination was removed.

Post-remediation testing should also be independent. The contractor who performed the cleaning has an interest in declaring the work complete. The insurer has an interest in closing the claim. The policyholder has an interest in knowing whether the home and contents were actually restored. The person verifying the result should not be financially dependent upon approving the work being tested.

Children and Other Vulnerable Occupants Matter

The people who live on the property must be part of the reasonableness analysis. The Centers for Disease Control and Prevention states that no safe blood lead level in children has been identified and that even low levels should be viewed as a concern.

Children face special risks because they spend time on floors, touch dusty surfaces, play with toys, and frequently place their hands or objects in their mouths. The Department of Insurance report also recognized increased concerns involving children, pregnant residents, immunocompromised people, and others who may be especially vulnerable to environmental contaminants.

A sampling plan that might be sufficient for an unoccupied storage building may be unreasonable for a home where young children sleep, eat, and play. Good faith claims handling requires consideration of the actual property and the actual people who occupy it. A standardized smoke-testing template cannot fairly answer every claim.

This Does Not Mean Every Home Must Be Gutted

Insurance companies are entitled to question exaggerated or unsupported demands. They may challenge testing methodology, examine whether appropriate controls were used, investigate preexisting sources of lead, retain additional qualified experts, and distinguish between contamination that can be successfully cleaned and property that must be replaced. They are not required to accept the proposition that every home standing within a fixed radius is dangerously contaminated. They do not have to agree that every item of personal property exposed to smoke is a total loss.

The Department of Insurance task force heard significant disagreement about mandatory testing in every home, the lack of pre-fire baseline data, the cost and availability of qualified professionals, and the proper use of post-remediation testing. Even insurance industry representatives acknowledged, however, that post-remediation testing may be appropriate where contamination was significant, or substantial concerns remain after cleaning.

The fair position is neither “test nothing” nor “discard everything.” It is to conduct an investigation reasonably designed to answer the question presented by the particular property and the facts of the loss.

Insurers Cannot Put Their Heads in the Sand

The science will continue to develop. Researchers will refine sampling methods, distinguish fire-related contamination from preexisting sources, and improve remediation and clearance standards. But an insurance company does not need perfect scientific certainty before conducting a reasonable investigation.

Insurers now know that urban fires can release lead and other toxic metals from older buildings. They know that fine particles can follow a smoke plume for miles. They know that contaminants can enter standing homes and settle in locations that are difficult to see. They know that HVAC systems and foot traffic can redistribute residues. They know that cleaning often works but does not always remove all contamination.

The question is no longer whether insurers have been warned. The question is what they will do with the warning. An insurer that authorizes meaningful pre-remediation testing, pays for a scientifically supported remediation protocol, and independently verifies the result is undertaking a genuine investigation, even if that process ultimately shows that limited cleaning is sufficient.

An insurer that carefully chooses where not to look is doing something else entirely. When the potential contaminant can permanently injure a child, pretending not to see it should never become a claims practice.

Thought For The Day

“The insurer must give at least as much consideration to the insured’s interests as it does to its own.”
—California Supreme Court, Egan v. Mutual of Omaha Insurance Co., 24 Cal. 3d 809, 818–819 (1979)