In James D. Fowler v. Nationwide Mutual Fire Ins. Co., 2014 WL 3844215, 2014 S.C. App. LEXIS 209 (S.C. App., Aug. 6, 2014), South Carolina’s Court of Appeals recently held that it was prejudicial error to allow the jury to consider either the report of a volunteer fire chief or his testimony on the issue of cause and origin if he does not qualify as an expert. The take away is that if a firefighter can’t testify as an expert, any opinion he or she has on causation is simply not a datum that the fact-finder is entitled to know about.
The insured’s home was destroyed by fire in January of 2007. His homeowner’s carrier, Nationwide Mutual Fire Insurance Company, denied liability after a fire investigator hired by the carrier determined that the blaze was incendiary, and the insured brought suit. The fire was extinguished by the local volunteer fire department, after which its Chief, David Wright, completed a mandatory form known as a “Truck Report.” This stated that the fire originated in a kerosene heater in the living room and that the “Cause of Ignition” was “unintentional.”
Prior to trial, Nationwide moved successfully to exclude any testimony by Chief Wright as to cause and origin. At the trial itself, however, the circuit court judge both admitted the Truck Report into evidence and also allowed the fire chief to testify about his rationale in completing it. Chief Wright stated that he determined that the living room heater was the point of origin because there was a V-shaped burn pattern on the living room wall and the heater was at the base of it. With respect to the report’s statement that the blaze was “unintentional,” the fire chief testified that he “didn’t see or smell anything that made him think [the fire] was intentional.” The jury returned a verdict in favor the policyholder in the amount of $504,444.
On appeal, Nationwide argued that the Truck Report and the testimony about it were inadmissible because they contained opinion testimony that Chief Wright was not qualified to provide. On August 6th, South Carolina’s intermediate appellate court agreed. Writing for a unanimous panel, Judge H. Bruce Williams reversed the jury verdict and remanded the case for a new trial.
The circuit court had admitted the Truck Report under Rule 803(8)’s public records exception to the hearsay rule. Judge Williams held that this was error because the rule recites that the exception does not apply to investigative notes involving opinions, judgments, or conclusions. In addition, the trial judge had allowed Chief Wright to testify under Rule 701, which states that a non-expert can nonetheless tell the jury about “opinions or inferences which . . . are rationally based on . . . perception.” Judge Williams reversed this decision as well because the rule has an exception for opinions or inferences that “require special knowledge, skill, experience or training;” in the court’s view, Chief Wright’s testimony regarding both the V-shaped pattern as the point of origin and the unintentional nature of the blaze fell into that category. Finally, Judge Williams also held that both the admission of the Truck Report and the fire chief’s testimony were prejudicial error because there was a reasonable probability that they influenced the jury’s verdict.
The Court of Appeals was careful to note, however, that its holding was “not intended to suggest volunteer firefighters could not be qualified as expert witnesses” in cases in which the trial court found that the firemen had acquired the requisite knowledge and skill to qualify as an expert in the particular subject matter at issue. On appeal, the policyholder had not challenged the circuit court’s decision not to qualify Chief Wright as an expert, and that issue was, therefore, not before the intermediate level appellate panel.