What is the arson defense?

Picture a situation where your home has been destroyed by a fire. Not only is your home gone, but your personal possessions were in your home as well. Your life has been turned upside down by this event, but you believe everything will be alright because you have homeowner’s insurance. So what do you do, you submit your claim to your insurance company and you expect that your insurance company will pay your claim quickly so that you can move on with your life. Some time goes by, and your insurance company notifies you that it is investigating the claim for possible foul play. A few more weeks go by and BAM! your insurance company denies your claim on the basis of a bogus arson accusation.

Unfortunately, this sad tale happens more often than you think. The arson defense is a common tactic that insurance companies assert to avoid having to pay insurance claims. Tragically, this type of accusation happens at the worst possible time. Despite their familial-esque advertisements, insurance companies do not take your personal wellbeing into consideration. To an insurance company your claim is just a policy number with words on a piece of paper. The insurance company is always looking for a way out of paying your claim, and the arson defense is a favorite in fire cases.

How does an insurance company establish the arson defense?

First of all, your insurance company should not accuse you of arson without evidence. This would violate an insurance company’s statutory duty to investigate claims and act in good faith. Your insurance company is going to need to assert this defense having some sort of proof. The thing about arson cases is that the fire destroys physical evidence (if any even exists). Insurance companies are generally left to prove arson by circumstantial evidence. And yes, it is the insurance company’s burden to prove that you have committed arson. 

In civil cases, arson is easier to prove than in criminal cases. In criminal cases, the burden is on the state to prove that the defendant has committed arson beyond a reasonable doubt, a very high standard. Unfortunately, in civil cases the insurance company only needs to prove arson by the greater weight of the evidence. This standard is much lower than its criminal counterpart, and it often leads to mistaken verdicts. 

In Florida, there are a few things that an insurance company must show before they will succeed on an arson defense. The first thing the insurance company will have to show is that the fire was “incendiary.” In other words, the insurance company has to prove that the insured, or someone acting at the direction of the insured, intentionally set the fire. As I stated earlier, because arson cases are typically proven by circumstantial evidence, insurance companies have to look for anything they can use to draw an inference that the insured set the fire. They typically do this by trying to establish things like fire accelerants being used in the process, or by showing that the fire was started by foreign objects.

The second thing the insurance company will have to show is that the insured had “motive.” Again, because the insurance company has to show this circumstantially they will typically try casting you in a light of financial hardship. They will look through your credit records, your mortgages, student loans, pretty much anything they can use to make you out to be financially distressed. Sadly, when insurance companies do this they don’t care how distorted their theory is from the truth, they only care about their bottom line.

Lastly, the insurance company has to prove that the insured had “opportunity.” For this element, the insurance company does not have to prove that you were anywhere near the fire when it occurred. Aaccording to the insurance company, why wouldn’t you have opportunity? It is your home. That is where you spend most of your time. Even if you were nowhere near your home when it happened, and in fact had no reasonable method of starting the fire yourself, your insurance company can simply assert that you had someone do it for you. 


If your insurer has accused you of arson you need an experienced insurance claims attorney that will be able to perform an independent investigation of the fire and work with the right experts to help disprove the arson defense.  And you may need to consult with a criminal defense attorney, as well. 

You can reach Miami Insurance Claims Lawyer J.P. Gonzalez-Sirgo by dialing his direct number at (786) 272-5841, calling the main office at (305) 461-1095, or Toll Free at 1 (866) 71-CLAIM or email Attorney Gonzalez-Sirgo directly at [email protected].


Michigan Millers Mut. Ins. V. Benfield, 902 F. Supp. 1509 (M.D. Fla 1995).

D.R. Mead & Co. v. Cheshire of Florida, Inc., 489 So. 2d 830 (Fla. 3d DCA 1986).

Stonewall Ins. Co. v. Emerald Fisheries, Inc. 388 So. 2d 1089 (Fla. 3d DCA 1980)

Fla. Stat. §627.428

J.P. Gonzalez-Sirgo
J.P. Gonzalez-Sirgo, P.A.
Post A Comment