Attorneys in my firm, including me, are in the muck of California wildfire litigation. The photograph above shows Merlin Law Group attorneys Stephanie Rowe and Stephanie Thompson, their husbands, and me at dinner last Friday night in Los Angeles. Nobody will confuse the structure involved in Hinzman v. Foremost Insurance Company of Grand Rapids, Michigan with a high-rise condominium, hospital, resort, commercial complex, or anything like most of the structures involved with our current litigation. The property was a manufactured vacation home purchased for $80,000. But small cases sometimes teach very large lessons, which is why I am writing today’s blog about this case.
I do not read Hinzman v. Foremost 1 as holding that wildfire smoke, soot, char, and ash fail to cause covered property damage. The most important lesson is that modern smoke claims must be investigated, documented, scientifically analyzed, and presented with far greater detail than many property insurance professionals, including me, have used in the past. The days of walking through a building with a flashlight, looking for black smudges, and making conclusions based on what is easily seen should be over. So should the practice of declaring that an entire structure must be stripped to the studs merely because smoke was in the neighborhood. Both approaches substitute assumption for investigation. Both invite a bad result.
This case demonstrates what happens when the claimed scope of replacement runs far ahead of the supporting science.
The Wildfire and the Claim
Dana and Michelle Hinzman owned a manufactured vacation home in Detroit, Oregon. Severe wildfires struck the area in September 2020. The Hinzmans testified that the fire came within approximately fifteen to twenty feet of their property and that neighboring homes were destroyed. Before evacuating, they closed the windows and doors.
The home did not burn. When Foremost inspected it in October 2020, its adjuster reported minimal visible ash and soot around entry points such as windowsills and door jambs. Foremost’s stated adjusting practice was to pay for soot, ash, and char that could be seen with the naked eye. It initially estimated minimal cleaning at $7,378.97. After Foremost obtained competing cleaning estimates, it issued payment based on a ServiceMaster estimate of $12,213.89.
The central dispute became the insulation in the enclosed attic and crawlspace. The attic had no ordinary access point but was ventilated under the eaves. The crawlspace insulation was enclosed by plastic “belly paper.” Mr. Hinzman believed the house should be taken down to the studs and that all insulation should be replaced. Foremost declined because its adjuster had not observed evidence that soot, ash, or char reached the insulation. Foremost also stated that it would consider additional payment if evidence of damaged insulation was later submitted.
The policyholders retained an estimator who prepared a replacement-cost estimate of approximately $92,818. Yet he did not personally observe soot, ash, or char on the attic or crawlspace insulation. He knew of no photographs, reports, or other evidence demonstrating contamination of that insulation.
An industrial hygienist eventually inspected the property in June 2022. He made a small opening near the roof ridge and obtained a tape-lift sample from the ridge cap. Of the particles collected there, 6% were reported as char, 1% as soot, and 2% as ash. He also tested a bulk sample of the attic insulation. That sample contained no detectable soot, ash, or char.
The hygienist entered only the beginning of the narrow crawlspace and chose not to crawl farther inside. A sample from an ABS pipe near the entrance contained 3% soot, ash, and char, but nobody sampled the crawlspace insulation behind the belly paper. The hygienist also could not determine whether the particles he found came from the 2020 wildfire or smoke migrating from fires in 2021.
The odor evidence was equally problematic. The restoration contractor reported no smoke odor after cleaning. The hygienist detected no smoke odor in the attic or crawlspace. The estimator knew of no post-cleaning reports of smoke odor. The homeowners later testified that they could still smell smoke, but Mrs. Hinzman limited her observation to two closets—not the attic or crawlspace insulation for which replacement was sought.
This was the record evidence presented to United States District Judge Ann Aiken.
Why the Court Granted Summary Judgment
The policy insured against “direct, sudden and accidental physical loss” to the property. Applying Oregon law, Judge Aiken held that the policyholders had to establish a distinct and demonstrable physical alteration of the claimed property.
The court relied on other cases that explained how physical alteration may occur at a microscopic level, but it must still be distinct and demonstrable. The mere possibility that molecules or particles adhered to property is not enough. Judge Aiken acknowledged that smoke may have entered the attic and crawlspace. She also recognized evidence of combustion particles on a roof component and a pipe. But the unpaid claim was for replacing the attic and crawlspace insulation. The only attic insulation actually tested produced a nondetect result, and the crawlspace insulation was never tested at all.
The court concluded that the policyholders had established only the possibility that smoke particles might have contaminated the insulation. Possibility and suspicion do not create a triable issue when the policyholder bears the initial burden of proving physical loss. The court granted summary judgment for Foremost without ever reaching actual cash value, replacement cost, or the effect of a later storm that completely destroyed the property in December 2025.
I disagree with parts of the opinion, and it should not be treated as a declaration that smoke, soot, ash, and char are incapable of causing physical loss. It is a federal trial court’s application of Oregon law to an unusually weak component-specific evidentiary record.
Foremost had already paid for smoke-related cleaning. The real dispute was therefore not whether any covered smoke loss occurred. The dispute was whether the attic and crawlspace insulation suffered additional physical loss requiring replacement. The court occasionally described the question too broadly as whether the policyholders had suffered a loss at all.
Foremost’s practice of paying only for residue visible to the naked eye should also not be mistaken for policy language. The policy did not say that covered smoke damage must be visible without magnification. Prior cases expressly recognized that physical alteration can occur microscopically. The legal requirement is that microscopic damage be distinct and demonstrable and not that it be visible during a brief walkthrough.
The opinion also treats one nondetect attic sample as more conclusive than it may deserve. “Nondetect” ordinarily means that the material being analyzed was below the laboratory’s detection limit. It does not necessarily prove that no combustion residue existed anywhere within the entire attic. Wildfire smoke particulate infiltration can be uneven. It may vary with wind pressure, eave and ridge ventilation, HVAC operation, orientation, particle size, distance from openings, and the material’s physical characteristics. At times, the list seems endless for how smoke particulates get from one part of the structure to another. But this is what I am finding as we dig deeper into these cases.
A small opening at one roof-ridge location may or may not provide a representative picture of an entire attic. The opinion never meaningfully analyzes that sampling question. The policyholders, however, apparently offered no expert explanation that the sampling was inadequate, no alternative sampling plan, and no evidence demonstrating contamination elsewhere in the insulation. A court cannot be expected to invent the missing science for the party bearing the burden of proof. On the other hand, this testing is expensive, and the structure’s value in this case was very modest.
The court similarly overstated matters when it suggested that the later testing proved the adjuster “was correct” about the insulation. The attic sample supported that conclusion for the material actually sampled. The crawlspace insulation was never sampled. The absence of proof that the crawlspace insulation was contaminated is not affirmative proof that it was clean. That distinction may not have changed the summary judgment result, but I believe it matters when evaluating the opinion and when clever insurance company attorneys cite it in future cases.
There is another important point. The court noted that Oregon continues to recognize that a persistent odor can constitute physical loss when it infiltrates property, and the remediation expense directly rectifies the condition. The odor evidence in Hinzman failed because it was inconsistent, belated, and disconnected from the particular insulation being claimed, and not because odor can never constitute property damage.
My personal criticisms of the ruling should not obscure the larger point of this case. The policyholders’ evidence did not support replacing all the insulation. The estimate was ahead of the investigation, the testing was late and incomplete, source attribution was uncertain, and the witnesses could not connect the claimed replacement work to demonstrated physical alteration. Those are practical failures that can be avoided. Experts being retained by policyholders, public adjusters, and every attorney in my firm should carefully consider this case and what it means to properly develop a provable theory of smoke damage.
Start With an Investigation Plan and Not a Replacement Estimate
A smoke claim should begin with a written investigation plan identifying the questions that must be answered. What burned? How close was the structure to the fire? What was the direction and duration of the smoke plume? Were there pressure conditions capable of driving smoke into the building envelope? Were doors and windows open? Was the HVAC system operating? Where are the fresh-air intakes, roof vents, eave vents, crawlspace vents, plumbing penetrations, and other air pathways? Which materials are porous? Which spaces are inaccessible? Was any cleaning already performed?
In a perfect world that rarely exists after a loss, those questions should be answered before somebody writes a building-wide replacement estimate. The estimate should price a scientifically supported scope. It should not become the unsupported premise from which the investigation works backward.
The claim investigation should preserve available fire-perimeter maps, incident reports, wind and weather data, air-quality information, satellite plume imagery, evacuation timelines, photographs, videos, HVAC settings, filter conditions, and witness accounts. A photograph showing a fire fifteen feet away proves an extraordinary exposure. It does not, standing alone, prove what entered a particular wall cavity or how deeply it penetrated a specific insulation product.
Document Before Cleaning Changes the Evidence
Smoke and ash claims present an evidence-preservation problem. Cleaning is necessary to protect the property and its occupants, but cleaning also changes the evidence needed to prove the claim.
Whenever reasonably and safely possible, collect photographs, videos, representative samples, HVAC filters, surface wipes, tape lifts, material cutouts, and other evidence before remediation. The areas sampled should be mapped. Each sample should have a unique identifier, documented location, collection method, date, collector, and chain of custody.
That does not mean reasonable emergency mitigation should be delayed while lawyers hold a committee meeting about how to collect evidence. It means the restoration professionals, first insurance company adjusters on scene, industrial hygienists, public adjusters, and insurer claims managers should communicate immediately about how necessary mitigation and evidence preservation will occur together.
In Hinzman, the decisive expert inspection took place in June 2022, nearly two years after the September 2020 wildfire, after cleaning had occurred and after another fire season. That delay allowed Foremost to argue both that the original evidence was gone and that the particles eventually identified could have come from a later fire.
Sample the Property Being Claimed
This is perhaps the most obvious lesson, yet it is the one that destroyed the claim. If payment is sought to replace attic insulation, the attic insulation must be examined and, when appropriate, sampled. If payment is sought to replace crawlspace insulation behind belly paper, somebody qualified must determine how that insulation will be safely accessed and evaluated.
A tape lift from a ridge cap may establish particles on the ridge cap. It does not establish their presence throughout the insulation below. A sample from a pipe at the crawlspace entrance says something about that pipe and location. It says little about insulation farther inside unless an expert can reliably explain the inference.
The sampling method must match the material and the question. Tape lifts can preserve the spatial distribution of settled particles for microscopic identification. Wipe samples can assist with quantitative analysis of metals and semi-volatile compounds. Micro-vacuum sampling may be appropriate for porous materials, textured surfaces, and cavities. Bulk samples may be needed when penetration into drywall, carpet, insulation, or another material is alleged. Air sampling and analytical chemistry may be relevant when persistent VOCs, SVOCs, or odor reservoirs are at issue.
The expert should explain why each location was selected, why the number of samples is professionally sufficient, what the laboratory detection limit means, what comparison or background data were used, and how far the conclusions may reasonably be extended beyond the material actually sampled.
Concealed Spaces Require a Joint Access Protocol
Attics, wall cavities, HVAC systems, and crawlspaces cannot be declared clean simply because they are difficult to inspect. But a policyholder cannot demand wholesale removal merely because contamination might be concealed there.
When destructive or intrusive testing is reasonably necessary, the policyholder should propose an inspection protocol. It should identify the access points, the contractor making the openings, the experts attending, the sampling methods, photographic documentation, split samples if appropriate, chain-of-custody requirements, preservation of removed material, and responsibility for temporary and permanent repairs.
The insurer should be invited to attend and participate. If it refuses a reasonable investigation, that refusal becomes part of the claim-handling record. If the insurer agrees, uncertainty can be resolved before positions harden and litigation begins. Foremost repeatedly said that it would consider evidence demonstrating contaminated insulation. The policyholders never tested the crawlspace insulation. From a litigation standpoint, that was an unforced error.
Source Attribution Cannot Be an Afterthought
Soot and combustion particles are common in the environment. Cooking, candles, fireplaces, vehicle exhaust, prior fires, and outdoor pollution may produce background combustion material. Finding a black particle is not necessarily the end of the analysis.
A qualified expert should consider particle morphology, biomass-combustion indicators, chemical constituents, metal ratios where appropriate, deposition patterns, exposure timing, fire fuels, prevailing winds, and appropriate background or control samples. The expert must then explain whether the evidence is consistent with the claimed wildfire and whether another source is reasonably likely.
In Hinzman, the industrial hygienist could not distinguish the 2020 event from migrating smoke associated with 2021 fires. That concession greatly diminished the value of the positive samples. Early testing and preservation of historical fire and plume data could have reduced that problem.
Presence, Impact, Damage, and Remedy Are Different Questions
Property insurance claims professionals should stop using these concepts as though they mean the same thing. Presence asks whether a combustion byproduct exists. Impact asks whether it is present above relevant background and is consistent with the fire event. Damage asks whether the affected property has suffered a physical alteration, loss of appearance, impairment of function, persistent odor, corrosion, staining, unsafe contamination, or another covered condition. Remedy asks what cleaning, repair, or replacement is reasonably necessary to restore the property.
Each proposition requires support. A laboratory result showing several soot particles may prove presence. It may not prove widespread damage. Demonstrated contamination of a porous material may prove impact but still leave a dispute about whether the material can be cleaned. A persistent odor reservoir may justify removal even when surface staining is minor. Corrosive residue within electronics or mechanical systems may require measures far different from those appropriate for painted drywall.
The claim presentation should expressly connect these steps for every materially disputed component.
Cleaning Versus Replacement Must Be Proven
Blanket declarations that all porous materials are ruined are vulnerable to attack. So are insurer declarations that everything can be wiped clean. I hear this all the time from policyholder representatives and then the opposite from the snarky comments made by insurance company adjusters and many of their attorneys.
The proper inquiry is material-specific. Is there an accepted cleaning method? Can the material be accessed and cleaned throughout? Would cleaning drive contaminants farther into the material? Can the success of cleaning be reliably verified? Does the material remain an odor reservoir? Are corrosive compounds or contaminants of concern present? Is cleaning economically reasonable compared with replacement? Would accessing the material for cleaning require substantially the same demolition as replacement?
When appropriate, a representative test cleaning should be performed and documented. Pre-cleaning and post-cleaning conditions should be compared using agreed criteria. If cleaning succeeds, the scope should reflect that. If it fails, the failure becomes powerful evidence that replacement is necessary. Replacement should be the conclusion of the investigation, not its opening demand.
Odor Evidence Must Be Developed With Discipline
Odor can be physical evidence. Those of us doing this for decades know about smoky smells in structures that were allegedly remediated, varnished, and silver-coated. But these odor findings can also be subjective, intermittent, and easily attacked. A vague statement months or years later that a house “still smells smoky” is not the strongest way to prove it.
Odor observations should identify who detected the odor, when it was detected, its precise location, the building’s ventilation condition, whether the HVAC system was running, temperature and humidity, the material suspected as the reservoir, and whether the odor returned after cleaning or after the building remained closed. Independent observations by restorers and industrial hygienists should be documented contemporaneously.
In Hinzman, the homeowners’ testimony about odor in two closets did not establish that the attic and crawlspace insulation smelled of smoke. Worse, it conflicted with several witnesses who reported no odor after cleaning. A properly mapped and contemporaneously documented odor investigation might have produced a different record or demonstrated that the demanded insulation replacement was unnecessary.
Contents Claims Require the Same Detail
The case also involved bags of textiles. An inspector reported no visible residue or smoke odor, while the policyholders paid a vendor to clean the items without first attempting ordinary washing.
Contents claims should be supported item by item or by defensible categories of like materials. The file should document condition, material, visible residue, odor, ordinary cleaning attempts, professional cleaning recommendations, cost, value, and the result of any test cleaning. Special consideration may be required for items involving infants, frequent skin contact, food preparation, medical vulnerability, sentimental value, or materials that cannot be reliably cleaned.
Again, the answer should come from evidence rather than a blanket assumption that every textile must be replaced or that every textile can be saved.
The Experts Must Work From the Same Map
Smoke cases often involve an industrial hygienist, building-envelope professional, restoration contractor, HVAC specialist, contents specialist, and estimator. Each performs a different function.
The industrial hygienist identifies and characterizes the contamination, develops a defensible sampling strategy, and may establish post-remediation verification criteria. The building expert explains pathways and concealed assemblies. The restoration contractor determines feasible cleaning procedures. The estimator prices the supported scope. Counsel and the public adjuster assemble the evidence into a coherent presentation under the policy.
Problems arise when the estimator assumes total replacement, the hygienist samples different locations, the restorer says the property is clean, and the policyholder reports odor somewhere else. That is essentially what the court saw in Hinzman.
If time permits, before a proof of loss or demand is submitted, the team should meet and reconcile the science, scope, pricing, photographs, and terminology. Every expert should understand what the other experts are relying upon.
Put the Evidence Into the Claim File Before Filing Suit
The best expert analysis does little good if it remains in somebody’s desk until litigation. The insurer should receive the reports, photographs, diagrams, laboratory results, sampling rationale, remediation protocol, test-cleaning results, and component-specific estimate while it can still reconsider the claim. Too many attorneys, in an effort to appear macho and aggressive, simply file suit first and figure out their case later. Sometimes, that cannot be avoided because of time limitations or other issues which need to be addressed immediately.
When the insurer identifies missing proof, treat that letter as a roadmap. Answer each factual and technical issue directly. If additional inspection requires cooperation, request it in writing. If the insurer refuses, document the refusal. If new evidence changes the appropriate scope, change the scope. Credibility grows when claim professionals follow the evidence rather than defend an early estimate at all costs. But it can also be like playing a game of “what’s the next question delaying a decision game,” at which insurance company adjusters and especially their claims handling attorneys have become experts.
If I were representing an insurance company that truly believes in its obligation to treat policyholders in good faith, I would say that the claim file should be prepared with the expectation that an unfamiliar judge may someday read it. That judge should be able to trace a clear path from the wildfire, through the building, to the affected material, to the physical alteration, and finally to the requested cleaning or replacement. The judge should see that the insurance company is aggressively trying to find all this evidence.
The Lasting Lesson From a Small Case
The policyholders in Hinzman had compelling evidence that a devastating wildfire came extraordinarily close to their home. They had proof of combustion particles at some locations. What they lacked was a scientifically supported bridge between those facts and the wholesale replacement of the attic and crawlspace insulation.
That does not excuse an insurer from conducting a prompt and thorough investigation. A naked-eye-only adjustment standard is not written into most policies and should not be allowed to become an invisible exclusion. Hidden contamination cannot be dismissed simply because finding it takes time, expertise, or carefully controlled access.
At the same time, policyholders cannot prove a large concealed-damage claim with fear, general exposure evidence, and an estimate. Modern wildfire claims require early evidence preservation, building-science analysis, material-specific sampling, source attribution, disciplined odor documentation, a rational cleaning-versus-replacement determination, and a scope tied directly to the findings.
The building in Hinzman was small. The lesson is not. Long after most people forget the name of this case, its practical warning should remain that where there is smoke, there must be proof.
Thought For The Day
“Only you can prevent wildfires.”
—Smokey Bear
1 Hinzman v. Foremost Ins. Co., No. 6:22-cv-01798 (D. Ore. Sept. 8, 2026).
