My recent post about wildfire lead contamination and insurer investigations, An Insurer Cannot Design a Lead Investigation Meant to Avoid Finding Lead, generated a thoughtful question from John (Jack) Zulkey. Jack asked:

I’m curious if claims handlers have the option of relying on the insured’s recommendation of where to look.

If the carrier asks the insured if there are any particular locations/properties that it would like tested because the insured thinks they’re at a high risk of contamination, would that create any kind of presumption that the carrier was acting in bad faith? Or is that irrelevant and the onus is still on the carrier to know based on its experience where the “best” places to test would be?

The simple answer is that an insurer should ask the policyholder where contamination was observed and which areas cause concern. Doing so does not create a presumption of bad faith. Indeed, failing to ask may suggest that the insurer is not interested in learning what happened at the property. But, asking the policyholder is not the same as transferring responsibility for the investigation to the policyholder.

The insured is an important witness. The insured may know which windows were open, whether the HVAC system was operating, where ash was visible, where odors were strongest, which rooms were cleaned before testing, and whether children or other vulnerable people occupy particular areas of the home. Those facts matter. They should be gathered, documented, and provided to the environmental professional.

Still, the average homeowner does not know how wildfire particulates travel through pressure differentials, where heavy metals are likely to settle, how HVAC systems redistribute contaminants, or how to design a scientifically defensible sampling plan. A homeowner should not be expected to understand judgmental sampling, representative sampling, background controls, analyte selection, detection limits, or cross-contamination protocols.

My physician may ask, “Chip, where does it hurt?” I don’t know if that answer is expected to require an MRI for further investigation. The same distinction applies to the questions raised by Zulkey. The insured provides observations and concerns. The qualified professional designs the investigation.

The current IICRC, RIA, and CIRI Technical Guide for Wildfire Restoration makes this distinction clear. It recognizes that the interests of the property owner should be considered in deciding whether and what to test. But it also states that industrial hygienists use professional judgment to select the sampling locations most likely to reveal wildfire combustion byproducts. The guide expressly provides that decisions concerning sampling types, sampling locations, and the need for testing should be made in consultation with the assessment professional. 1

The California Department of Insurance has also recognized that disputes over how and where samples are taken are at the center of many wildfire smoke claims. The Department notes that the appropriate investigation can depend on property-specific considerations such as attic vents, window types, weather, wind, property location, and the characteristics of the home. Most importantly, the Department has stated that wildfire smoke damage must be fully and fairly investigated and that it is unreasonable to force an insured to incur substantial costs investigating the insured’s own claim. 2

This responsibility cannot be avoided with a carefully worded question from the adjuster. Imagine an adjuster asking, “Are there any particular places you want us to test?” The insured identifies the kitchen, living room, and a child’s bedroom. The insurer tests only those locations. It does not test the attic, HVAC system, garage, crawlspace, window tracks, insulation, carpets, upholstered furniture, or other areas where residues may collect.

The carrier later argues that it tested every place the insured requested. That argument may be factually accurate while remaining fundamentally misleading. The important question is not whether the insurer tested the locations identified by the insured. The important question is whether the overall investigation was reasonably designed to determine the nature and extent of the covered damage.

California bad faith law does not create a rigid rule dictating exactly how every claim must be investigated. The insurer’s conduct is evaluated under the totality of the circumstances. But the California Supreme Court has repeatedly explained that an insurer must fully inquire into possible grounds supporting the claim and may not focus only on facts supporting a denial. 3

In Wilson v. 21st Century Insurance Company, the insurer argued that it was willing to receive additional information from the policyholder. The California Supreme Court found that willingness did not conclusively establish good faith where the insurer had disregarded evidence already provided. The insurer was entitled to investigate and question the insured’s evidence. What it could not do was ignore that evidence and reach a contrary technical conclusion without an adequate professional foundation. 4

This reasoning fits the wildfire testing issue. An insurer may question the insured’s proposed locations. It may conclude that some requested testing is unnecessary, duplicative, or scientifically unsupported. It may retain a qualified industrial hygienist to develop a different sampling plan. It may investigate preexisting sources of contamination and distinguish wildfire residue from ordinary household dust. The insurer should be able to explain why the selected locations were appropriate, why reasonably suspected reservoirs were included or excluded, and whether the professional conducting the assessment was free to expand the investigation when conditions observed at the property justified doing so.

Asking the insured for input can be evidence of a thoughtful investigation. Using the insured’s answer as an artificial boundary around the investigation can be evidence of an unreasonable one.

The phrasing of the question matters. An adjuster who asks, “What did you observe, where did you observe it, and which areas concern you?” is gathering evidence.  An adjuster who asks, “Tell us every location you want tested,” and later treats the response as a complete and binding sampling plan may be laying a trap.

Policyholders should never be led to believe that their failure to identify a concealed area of contamination constitutes a waiver. Toxic residue does not become uncovered because a homeowner did not know to ask for testing inside an HVAC return, attic insulation, wall cavity, or crawlspace.

Claims professionals are supposed to bring experience to the claim. Insurers adopt investigation standards, retain experts, train adjusters, and advertise their expertise in responding to catastrophes. California regulations require insurers to begin necessary investigations, maintain written standards for prompt claim investigations, and adequately train their claims personnel. 5

Ask the insured. Listen carefully. Document the answer. Give that information to a qualified professional. Then conduct an independent, property-specific investigation designed to find the damage and not an investigation designed to confirm that as little damage as possible exists.

The policyholder is a witness to the loss. The policyholder should not be made the insurer’s unpaid expert industrial hygienist.

Thought For The Day

“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”
—Louis D. Brandeis,

1 Institute of Inspection, Cleaning and Restoration Certification, Restoration Industry Association, and Cleaning Industry Research Institute, Technical Guide for Wildfire Restoration, pp. 9, 15–16 (December 2025). The guide states that professional judgment is used to select sampling locations likely to reveal combustion byproducts and that sampling decisions should be made in consultation with the assessment professional.
2 California Department of Insurance, Insurance Commissioner Ricardo Lara’s Smoke Claims & Remediation Task Force Report, pp. 1, 8–9 (March 9, 2026). The report identifies disputes concerning how and where samples are taken, and states that smoke damage must be fully and fairly investigated without requiring policyholders to bear substantial investigation costs.
3 Egan v. Mutual of Omaha Ins. Co., 24 Cal. 3d 809, 819 (1979).
4 Wilson v. 21st Century Ins. Co., 42 Cal. 4th 713, 722–724 (2007). The court explained that the insurer could scrutinize the evidence and obtain additional professional opinions but could not ignore an expert’s conclusions without adequate investigation. It also held that a willingness to receive more information did not conclusively demonstrate good faith.
5 Cal. Code Regs., tit. 10, §§ 2695.5(e)(3), 2695.6(a)–(b). California’s regulations require insurers to begin any necessary claim investigation, maintain written investigation standards, and adequately train claims personnel.