The S.C. Court of Appeals reversed and remanded a half million dollar verdict against a homeowner’s insurance company because the fire chief was allowed to testify regarding his opinion on causation. Fowler v. Nationwide Mutual Fire Ins. Co., Op. No. 5256 (S.C. Ct. App. filed August 6, 2014).
The plaintiff’s home was destroyed by a fire. Nationwide denied his insurance claim on the ground that the fire was intentional. Fowler sued Nationwide and its local claims adjuster for breach of contract, bad faith, and slander per se, resulting in a jury verdict of $501,444 for breach of contract and $3,000 for bad faith. The jury returned a defense verdict on the slander per se cause of action. Nationwide appealed, arguing the circuit court erred in admitting opinion testimony from a non-expert.
During his investigation of the fire, the volunteer fire department chief completed a standardized form known as a “Truck Report,” which contained basic information about the fire. Nationwide objected to the admission of the chief’s testimony as to the cause and origin of the fire. Nationwide also objected to the admission of corresponding portions of the Truck Report. At trial, after voir dire and arguments, the trial judge held the chief was not qualified as an expert and therefore could not give opinion testimony. Nonetheless, the trial judge admitted the Truck Report into evidence and allowed the chief to testify about the report and his rationale for completing it.
The Truck Report included the following information: (1) Area of Origin – the chief wrote “Living Room;” (2) Cause of Ignition – the chief wrote “Unintentional;” and (3) Equipment Involved in Ignition – the chief wrote “Heater.” The chief testified that he indicated “Living Room” was the area of origin because it was the most heavily damaged area, that the fire was “unintentional” because he did not see or smell anything that made him suspect the use of accelerants or arson, and that he wrote “Heater” because a kerosene heater was at the base of a V-shaped burn pattern on the wall in the living room.
Admission of Fire Chief’s Testimony: The Court of Appeals first addressed the admission of the chief’s testimony. The court noted the issue of whether the circuit court had properly ruled the chief was not an expert was not on appeal, and indicated that its holding was not intended to suggest volunteer firefighters could not be qualified as expert witnesses if the trial court found the proffered expert had acquired the requisite knowledge and skills.
The trial court had ruled the chief’s statement were admissible under S.C. Rules of Evidence 701, which limits a non-expert witness’s testimony in the form opinions or inferences to those which (a) are rationally based on the perception of the witness, (b) are helpful to the clear understanding of the witness’s testimony, or the determination of fact and issue, and (3) do not require special knowledge, skill, experience or training. The Court of Appeals found the chief’s testimony regarding the V-pattern as an indicator of the fire’s origin, and his testimony regarding whether the fire was unintentional were opinion testimonies and were not permissible perceptions under Rule 701, but rather, constituted opinions which require special knowledge, skill, experience or training to be property made.
Admission of Truck Report: The Court of Appeals next held that because it contained opinions and conclusions, the Truck Report was not admissible as a public records hearsay exception under Rule 803(8) of the S.C. Rules of Evidence. Rule 803(8) excepts from the general hearsay rule reports of public agencies setting forth the activities of the agency or matters observed pursuant to duty imposed by law … “provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible.”
In its analysis as to both issues, the Court of Appeals cited with approval to Bloomgren v. Fire Insurance Exchange, 517.N.E.2d 290 (Ill. App. Ct. 1987), a case in which the facts were nearly identical to the Fowler suit. Finally, the Court held that there was a reasonable probability that the jury’s verdict was influenced by the admission of the chief’s testimony and the Truck Report, resulting in prejudice to Nationwide. Accordingly, the judgment was reversed and the case was remanded for a new trial.