October 2013 Bar Bulletin
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October 2013 Bar Bulletin

Fringe Science Put to the Test in "Collapse" Casev

By Dan Bentson and John Bennett


The Washington Court of Appeals recently addressed what evidence an insured can present to prove that a building reached a state of "collapse" - or "substantial structural impairment" - during a past policy period.

In Lake Chelan Shores Homeowners Ass'n v. St. Paul Fire & Marine Ins. Co.,1 the Lake Chelan Shores Homeowners Association (LCS) insured its condominium complex with policies issued by St. Paul from 1996 to 1999. Seven years later, LCS discovered a problem with severe wood decay and tendered a claim to St. Paul.

LCS claimed that by backdating the wood decay at the condominiums, LCS could show that the buildings (or parts thereof) were in a state of "collapse" during the effective period of - and thus covered by - the St. Paul policies. Before St. Paul made its final coverage determination, LCS sued St. Paul in state court.

St. Paul moved for summary judgment. According to St. Paul, the mathematical equation used by the LCS experts to backdate the wood decay and show that the buildings reached a state of "collapse" during the St. Paul policy period was not generally accepted in the scientific community. Because the equation was not generally accepted, St. Paul argued that the opinions of the two LCS experts were inadmissible under Frye v. United States.2 The trial court agreed with St. Paul and, without conducting a Frye hearing, granted the motion.

LCS appealed, arguing that the trial court improperly resolved a genuine factual dispute on summary judgment. The Washington Court of Appeals, however, disagreed.

According to the Court, to admit scientific evidence, the trial court must first determine that the underlying scientific theory, the evidence, and the methodology used to implement the theory are all generally accepted within the scientific community. Although LCS supported its theory of the case with two expert opinions, St. Paul's motion pointed out that the alleged scientific basis of these expert opinions - the mathematical equation used to backdate wood decay - was not generally accepted within the scientific community.

LCS's experts attempted to use the equation to trace the progression of decay at the LCS properties at issue by using only two pieces of information: (1) the date each building was built and (2) the depth of the rot when it was uncovered during remediation in 2007–09. However, the Court found that the "equation did not come from any scientific literature." Rather, it came from another engineer in one expert's firm.

The Court noted that the experts, in formulating the equation, "simply assumed decay began one year after construction was complete." The expert "did not testify that the assumption was generally accepted in the scientific community ..., described his calculations as 'educated guesses' and was unable to identify any other person or literature stating his formula is a proper equation for estimating rot progression."

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