2019 CLM Construction Conference
Registration 12:00 PM -6:00 PM
Cocktail Reception 5:30 PM -7:00 PM
Breakfast 7:45 AM -8:45 AM
Premier Session 1 - Looking Ahead: Challenges Faced by the Construction Industry in 2020 and Beyond 8:45 AM -10:15 AM
This powerful session will incorporate national thoughts leaders representing major commercial, residential, mixed use and design professionals together with an underwriter, broker, and claim manager discussing the challenges for construction in 2020 and beyond. Staying on the forefront of emerging issues which are developing now in the field is critical to managing risks and exposures. This session provides valuable insight into the different disciplines which constitute the products coming on the market which are projects of today, and fodder for litigation tomorrow.
Break 10:15 AM -10:45 AM
Session 1 10:45 AM -11:45 AM
Various Breakout Rooms .
National - Big Claim, Big Issues: What Happens When Exposure Reaches the Excess 10:45 AM -11:45 AM
This panel will discuss the unique issues associated with large exposure cases that potentially implicate excess and umbrella coverages. In many instances there are different carriers involved with potentially different policy provisions, coverages, and defense obligations. These differences may affect assessment of the exposure, choice of litigation strategies and settlement decisions. Some of the issues addressed are: What happens when excess and umbrella coverages do not follow form or different coverage rights are reserved? What rights do the excess and umbrella carriers have prior to exhaustion? Can or should the excess carriers retain separate defense counsel? Do reservations of rights assert by the primary carrier impact obligations of excess and umbrella carriers? How involved should an excess carrier be prior to exhaustion?
National - Breaking Out of the Pack: Strategies to Extricate the Subcontractor 10:45 AM -11:45 AM
San Diego A.
The majority of construct defect and often construction accident cases include ancillary and minor player defendants. Often these are sub-contractors whose role is somewhat limited. However, settling out for a reasonable sum or obtaining a dismissal before significant expenditure of time is one of the challenges posed in construction litigation. This roundtable will address exit strategies for the subcontractor or ancillary defendants in construction defect/accident litigation. Strategies with a focus on early resolution and dismissal will be discussed. Panelists will provide some of the strategies they have used in the past and suggest additional techniques to avoid going along for the full ride.
National - Changing Landscape of Additional Insured Obligations 10:45 AM -11:45 AM
San Diego B.
A panel discussion of the changes of the additional insured obligations from the perspective of a construction client, insurance broker, coverage counsel and defense counsel.
National - Construction Wrap Trends: What's Working, What's Not 10:45 AM -11:45 AM
San Diego C.
Are the realities of construction wrap policies meeting the expectations? Panelists will share their perspectives on and experiences with wrap policies. They will guide attendees in a conversation about what works well with wraps and what isn't working. Panelists will provide suggestions and tips for handling claims under wrap policies and will identify areas of concern with suggestions for improvement.
National - Environmental Claims Arising from Construction and Redevelopment Projects 10:45 AM -11:45 AM
This session addresses key emerging and current issues arising from environmental claims related to construction projects, both greenfield and brownfield redevelopment projects. Additionally, we will also address legal and technical related claim handling issues arising in the connection with these complex claims facing developers, contractors, insurers, and other stakeholders. These important issues will be discussed from the perspective of both the insurers and the insureds.
National - Smart Building Technology: Is it the New Trend in Construction Defect Litigation? 10:45 AM -11:45 AM
Staying on the forefront of new building technologies like structural, building envelope, energy and water management, security, and facility management systems offers many opportunities to developers, owners, builders, and tenants for increased building marketability, energy savings and building longevity. However with untested multi-party opportunity comes risks as well. Many smart technologies may be smarter than the end users, the handoff from multiple parties such as manufacturers, suppliers and installers may blur the line of guarantee obligations, and lack of sound continued training can cause potential issues between the providers and users of these smart technologies.
In this panel, we explore this new and sometimes untested world of smart technologies. We discuss the opportunities for success and failures that can result in the application of smart building technology to the building environment and discuss building litigation best practices and how future litigation may be affected.
National - What a Rep Wants and What a Rep Needs 10:45 AM -11:45 AM
What does a claims resolution professional need to be successful in their job? Industry veterans will offer their perspective on how they navigate their work effectively. The panel will lead a conversation addressing organizational flow, reserving, collaborative planning, and useful, high-quality reporting. The objective of this sessions is to help construction defect lawyers walk in the shoes of an adjuster so both can do their jobs more effectively.
Lunch 11:45 AM -1:00 PM
Session 2 1:00 PM -2:00 PM
Various Breakout Rooms .
SE Mid/Atlantic - Coverage and Litigation Trends with Additional Insureds in the Southeast 1:00 PM -2:00 PM
San Diego B.
This interactive session will address coverage and litigation trends with additional insured status. Discussion will focus on issues that internally affect carriers such as underwriting and common coverage issues. Outside counsel will talk about those coverage issues, ethical issues that defense may face in dealing with additional insureds during the course of litigation, and how these issues are ultimately playing out in the Southeast Region during litigation. The panel will also address bad faith and first party implications that we are seeing in an escalating fashion. The group will engage in an open panel discussion to discuss these issues and trends and provide meaningful strategy on how to handle these issues for insureds and named insureds.
National - Ethics in Mediation During Complex Construction Cases 1:00 PM -2:00 PM
While mediation tends to be the choice of getting complex cases resolved, both attorneys and adjusters must be sure to handle cases ethically. During mediation, attorneys are communicating privileged ideas as well as coverage issues to the mediator. When the attorney is faced with representing the insured while also trying to do right by the carrier, it can be a challenging road to navigate. This session address the ethics all parties face in mediating a claim.
National - Unintended Consequences of Going Green 1:00 PM -2:00 PM
San Diego A.
While going green in construction is an important environmental movement, it can have unintended consequences that may affect claims. LEED Certification does not necessarily translate to lower operating costs. What happens when building owner expectations are not met? Many financial projections and product claims related to green products can increase these expectations. Building envelopes are becoming tighter, which is causing issues with recirculated air, condensation, and other “sick” building issues. Solar Panels do not include an off switch, which can have consequences in cases of fire and seismic events. What happens if a building has product failure that requires removal of the solar panels for repair, who pays? Many green building products use unproven technologies, do not have long life installations, and can be hard to source internationally.
SE Mid/Atlantic - Golden Opportunities: Maximizing the Utility of Notice and Opportunity to Cure Statutes 1:00 PM -2:00 PM
San Diego C.
In the last 20 years, most jurisdictions have implemented "notice and opportunity to cure" (NOC) statutes that require (to varying degrees) the parties to at least discuss resolving the alleged construction defect before engaging in all out litigation. Nuances in statutes, a few decades of case law, and the personalities of the bench and bar have led to very different results. This survey of NOC statutes across the southeast looks at how different jurisdictions are utilizing their respective statutes and how we can take what has been done in other states for the benefit of the defense and try to apply it to our own states' statutes
National - Crunch Time: Handling the Policy Limits Demand 1:00 PM -2:00 PM
The panel will discuss handling policy limits demands, which can be a powerful tool for plaintiffs lawyers. Discussion will include the impact of a limits demand from both the perspective of claims handler and defense counsel. Using both hypothetical and real case examples, the panelists will discuss the roles all parties play in these cases and how to achieve the best outcome. This session will also cover small limits demand ranging from $25,000 to $50,000 and provide tips on how to handle these using investigation and negotiation. The panelists will also cover 998 Demands and how those affect policy limits demand. The panel will discuss what the 998 Offer is, when it should be made, and what factors to consider before accepting or denying the offer.
National - Dealing with High Exposure Multi-Party Litigation Concerning Catastrophic Events or Mega Projects 1:00 PM -2:00 PM
The session addresses high exposure multi-party litigation arising out of a catastrophic event or mega project. A catastrophic event could include incidents such as a construction collapse with death. Mega projects could include high-value projects such as airports, roadways, stadiums, and large infrastructure projects. The panel will focus its discussion on the following areas:
- How to deal with declining limit policies when the exposure exceeds the policy limits.
- If the exposure is greater than all available limits, does the defense strategy change?
- How and when is a mediator selected? How does that affect settlement?
- How to deal with the client's fears and emotions.
South - Everything Is Bigger in Texas Including the Challenges in Construction Defect Litigation 1:00 PM -2:00 PM
Texas continues to experience a steady rise in the number of residential and commercial construction defect cases. Design professionals, contractors, attorneys, and courts attempt to maneuver through the morass of evolving statutes and case law.
The Texas Anti-Indemnity Statute, as well as the Residential Construction Liability Act (RCLA) are often misunderstood or improperly applied by all sides, impeding efforts at resolution before trial and creating the potentiality of bad law.
To further complicate issues, insurers lack guidance from higher courts, while at the same time face new Texas Supreme Court cases that serve to interpret, yet often question, previous understanding of policy language and what constitutes a damage. Whether or not there is a duty to defend and the breadth of that duty is consistently a battle between limiting versus broadening coverage with different jurisdictional results making consistency in the success of arguments volatile.
Manuscript endorsements and unique insurance forms serve to significantly modify coverage under a particular policy and pose the risk of potential peril for any insured seeking out meaningful coverage. This panel will discuss these issues and tips on how to engage in best practices to achieve favorable outcomes.
Break 2:00 PM -2:30 PM
Session 3 2:30 PM -3:30 PM
Various Breakout Rooms .
Northeast - Navigating Minefields in New York Labor Law: Strategies for Minimizing Exposure and Case Resolution 2:30 PM -3:30 PM
San Diego C.
New York labor law is a hotbed of litigation traps and minefields for those unfamiliar with the nuance and represent explosive potential if mishandled. Increased frequency and severity have led carriers to completely withdraw from the market only to be replaced by those who often fail to recognize the complexities surrounding this body of law. At the same time, retention points for developers have increased as have risk management techniques commensurate with increased exposures.
Labor shortages emanating in 2008 and beyond are playing out in increased fatalities, increased elevator falls and other issues largely thought to be traced to the lack of skilled laborers. How best to frame a case for early resolution, success under any metric established is powerful information. Sophisticated litigation techniques and theories of the plaintiff bar are evolving with varying success, but they are theories claim professionals and risk managers need to know given the explosive verdict potential. This session will present cutting-edge strategies that take into account the nuance, exposures, evolving strategies and techniques of the plaintiff bar balanced against the changing juror pool in difficult venues including the Bronx.
National - No Good Deed Goes Unpunished: What Happens After an AI Tender Is Accepted 2:30 PM -3:30 PM
San Diego A.
This session focuses on what to do once an AI tender is accepted, and differences across the country in contribution rights. Going beyond the traditional discussion on AI issues, the panel will discuss practice tips and techniques an accepting carrier can use to increase participation by others in the defense of the additional insured, and the realities related to what to expect once an AI tender has been accepted, including choice of counsel, split file requirements, reporting and reserving, tenders and re-tenders, billing issues, and settlement considerations. Participants will walk away with practical tools to use in managing the AI file, defending the additional insured, and getting others to participate. Other takeaways will include an understanding of what to do when others will not participate in the defense when there are multiple carriers/policies on risk and how to deal with various settlement scenarios.
Hawaii - Paradise Lost? A Road Map to Handling Hawaii CD and Construction Litigation 2:30 PM -3:30 PM
While construction defect litigation has been thought of as a mainland phenomenon, Hawaii has long been ignored. Recently, the CD ship has landed in Hawaii. Construction and CD litigation initiated by mainland firms has trended upward in Hawaii. Plaintiff firms are pursuing multi-unit CD and products cases as class actions with increasing success.
This panel will examine construction trends in Hawaii that set the stage for defect litigation. The discussion will also focus on construction disputes initiated by developers of high-rise condominium complexes in Honolulu, and related construction disputes that invite defect claims.
The panelists will explore the legal landscape, the trend toward state court awards of class status in multi-unit and high-rise condominium cases, the system of fault, and multi-party risk transfer. The panel will also visit local building practices, and the impact of a tropical climate on building assemblies and typical resulting defects.
Finally, the panel will discuss the method by which Hawaii Courts process complex construction cases.
SE Mid-Atlantic - Perils and Strategies in High-Rise Litigation 2:30 PM -3:30 PM
Big buildings come with big litigation exposure, but what is driving resolution these days? In the world of wrap policies, business risk exclusions are being watered down to the point where the merits of the alleged defects and damages more often rule the day. Emerging types of defects that allow owners to blackboard multi-million dollar claims include fire sprinkler incompatibility, post-tension grease caps, failure of coating systems on envelope components and cladding, premature corrosion of risers and chillers, and water intrusion through the building skin, windows and sliding glass doors.
Defense counsel and carriers must understand how extrapolation affects liability and damages. Recently in D.R. Horton v. Heron’s Landing, a Florida appellate court affirmed that an association’s expert’s recommendation to replace 220,000 square feet of stucco based on testing 200 feet was sufficient to support an award of damages for the replacement of all stucco and related consequential damages.
Finally, damages continue to be misunderstood. “Betterment,” and “first cost,” and “pro-rated, extended useful life” should be analyzed early in a case or at mediation. Too often defendants and their carriers are paying for upgrades chosen by condominium associations.
National - Litigation Impact from Changes During Course of Construction: Future of Defect Litigation 2:30 PM -3:30 PM
Communication between design professionals, construction crews, insurers, and product manufacturers varies from project to project. The level of communication may depend on the completeness of plans, dictated by the contract, or even the product of direct experience with differing construction methods.
Changes in the design or construction occur during construction as a result of value engineering, owner changes, site conditions, and other complications. Transparency between the design and construction teams hinges on communication. What happens when this transparency doesn’t occur? A design professional makes a minor change to a subgrade waterproofing system that alters the de-watering of a property without necessary changes to the means, methods, and products. What risk and liability are shifted to the contractor or product manufacturer? What happens when a subcontractor makes a small change to a wall footing for the betterment of construction and secures some but not all of the necessary approvals? Who then becomes responsible?
Regularly, there are issues when contractors take an incomplete set of design drawings and infers the designer’s intent. Did the contractor inherit these design elements? Has the risk transferred? This session explores these examples and more from the perspective of the carrier, counsel, and expert.
National - Mudslides, Wildfires and Hurricanes: Climate-Created Construction Litigation 2:30 PM -3:30 PM
The impact of climate change is felt globally as natural disasters wreak havoc. New theories of liability and damages will be tested out in the courts. Florida and California have 10-year statutes of repose for construction defect suits. Because many homeowners may be barred from bringing defect actions, they are filing claims not only against those involved in designing and building the homes, but also against those involved in designing, building, and maintaining municipal and county infrastructure and utilities. As we all grapple with the foreseeability of increasing frequency and severity of natural disasters, the extent to which building product approvals need to be revised (especially windows, sliding glass doors, and railings) remains to be seen. What role does the Act of God affirmative defense play, and what are plaintiffs’ strategies to minimize the defense? Whose burden is it to prove damages caused by force majeure versus those caused by defects?
National - Pesky Manuscript Endorsements and Their Impact on the Availability of Coverage 2:30 PM -3:30 PM
San Diego B.
This session will examine how courts have interpreted some of the more recent manuscript endorsements in the CGL context available in the marketplace with an emphasis on their impact on additional insured claims. This includes exclusions and/or endorsements such as a CG 2294, stucco exclusion, condominium/townhome/residential construction cxclusion, designated work, continuous or progressive injury or damage exclusion, contractor limitation endorsements, AI endorsements written on an excess basis and prior completed operations exclusion. The panel will address application of these endorsements and the impact on how the national homebuilder is handling matters. Participants will also discuss manuscript endorsements and how that affects the industry; and insurance rates/inability to obtain insurance/uncollectable third party property damage deductibles, and contribution/subrogation.
Break 3:30 PM -4:00 PM
Session 4 4:00 PM -5:00 PM
Various Breakout Rooms .
West - Emerging Trends/Changes with OCIPs: The Good, the Bad and the Ugly 4:00 PM -5:00 PM
San Diego B.
Owner-controlled insurance programs (OPICs) have changed and evolved in recent years. It almost seems like they are snowflakes, no two are the same. This roundtable discussion will address many related issues including:
- When are subs and GCs seeing the policy language? Before or after you have signed the contract?
- How does one “prove” enrolled later when litigation arises?
- What happened to having enrollment forms so that everyone knew who was enrolled and the timing?
- What other GL insurance does a sub need to carry if the project is enrolled?
- How are claims post completion being handled?
- Does a sub still have its rights under Chapter 40 (right to repair) before an OICP SIR is owed or is it owed regardless?
- How do the carrier and enrolled parties handle the case law regarding the immediate duty to defend with the language in the contract and OCIP that says it is not owed until the SIR is paid?
- Is the SIR per project, per home, per occurrence?
- How does a builder determine that a home is enrolled or not?
- How can a sub’s work be partially enrolled and partially not for the same home?
- Does the OCIP policy actually exist on paper?
National - King of the Road: The Future of Claims Arising from Design and Construction of Roadways 4:00 PM -5:00 PM
We rise. We drive. We take for granted the road below. Our rapidly aging interstate highway system of the 1950s and 60s is stretched beyond its original capacity demanding innovative restoration and new construction for the 21st century. Claims arising from the design, construction, and use will rise dramatically as highways are placed at greater structural loads, used as laboratories for autobahns and driverless vehicles while connecting to older bridges, tunnels and appurtenant improvements. The risk profile for underwriting and insuring designers, owners, general and subcontractors in this field must stay ahead of the curve. Join the discussion as we peer into the future, avoid the traffic and get you home in one piece.
Northwest - Oregon and Washington: Demystifying Construction Claims in the Pacific Northwest 4:00 PM -5:00 PM
San Diego A.
This panel will discuss how to navigate construction plans, and how to utilize them during the construction litigation process. We will focus on the continuing emerging trends in energy efficiency standards from air tightness of building assemblies to building code changes, and contract language.
Addtionally, the discussion will focus on residential and commercial construction, owners/developers, general contractors, subcontractors, products, and materials suppliers, design professionals, contract drafting and interpretation, experts, trial/arbitration/mediation, differences between Oregon and Washington Law issues, claims management, litigation management, and coverage issues.
Northeast - Defenses and Indemnification Issues 4:00 PM -5:00 PM
Although the underlying facts of most construction defect claims are similar, an adjuster’s and an attorney’s approach to handling such claims must embrace the intricacies of the jurisdiction in which the claim has been filed. The presenters in this round table discussion will provide an overview of construction defect law across the Northeast United States (including Connecticut, Delaware, New Hampshire, New Jersey, New York, Maine, Maryland, Massachusetts, Pennsylvania, Rhode Island, and Vermont) and facilitate dialogue regarding each jurisdiction’s construction defect-related legal peculiarities. Topics will include insurance coverage issues, statutes of limitations, statutes of repose, indemnification limitations, and consumer protection laws.
West - Successful Claims Review: It’s All about Preparation and Communication! 4:00 PM -5:00 PM
San Diego C.
There is no right way to do a claim review. That being said, the team handling the thousands of claims at New York’s Hudson Yards (the Largest Private Real Estate Development Project in history) has developed a system that will help you get more out of your claim review. By combining communication and preparation in advance of the review itself, the team is able to review and discuss more files than a typical claim review. Whether you have 10 files or 200 files on your claims review list, the key to a successful claims review is preparation and communication.
This session presents a fresh perspective on how to handle your own claim review. Discussion will address steps taken to prepare for a claim review, role of the broker, and the interplay between general liability and workers compensation. All attendees will walk away with at least one new idea to get more out of your own claim reviews going forward.
West - Trial and Arbitration Strategies for Winning Your Construction Case 4:00 PM -5:00 PM
This session will provide tips for winning in Trial and Arbitration over and above possessing valid and persuasive arguments. We will engage the audience by asking them about their best tips and practices.
Midwest - Myths, Realities, Pitfalls, and Advantages of Binding Arbitration 4:00 PM -5:00 PM
This session focuses on state and federal statutes concerning arbitrations from multiple perspectives. The panel will address challenges to arbitrability of disputes, contract provisions affecting arbitration procedures and awards, arbitration fees/expenses, procedures and rules governing the arbitration process, and pros and cons of the binding arbitrations. The session will also cover handling dispositive issues in advance of the arbitration hearing, scope of permitted discovery in arbitration, third-party discovery, the arbitrator's role and authority in the arbitration process, presenting evidence at the arbitration hearing, and use of fact and expert witnesses in arbitration proceedings. The session ends with discussion on appeal and enforcement of arbitration awards, and practical pointers to protect your interests and avoid prejudice or unexpected results from a binding arbitration.
Cocktail Reception 5:00 PM -6:00 PM
Breakfast 7:45 AM -8:45 AM
Premier Session 2 - Judges Live! 8:45 AM -10:15 AM
Friday's premier session features nationally recognized trial judges who will discuss challenges, opportunities, practice pointers and the future of handling construction cases throughout the nation. From technology, issue resolution, missed opportunities and best practices, the judges will share practice pointers you can implement immediately to ensure success in handling all facets of construction claims.
Break 10:15 AM -10:45 AM
Session 5 10:45 AM -11:45 AM
Various Breakout Rooms .
West - Can Alternative Fee Arrangements (AFAs) Work For Construction Defect Claims? 10:45 AM -11:45 AM
Early and efficient resolution of construction defect claims aligns the interest of the carrier, the insured, and defense counsel. Having an AFA/fixed fee structure in place is one tool to achieve this goal. An AFA serves as a motivation for the law firm and carrier to have a common vision to resolve cases quicker, as well as providing a clearer claim handling direction at inception. The benefit for a carrier is some certainty in controlling attorney fees and costs, and for a law firm, an AFA arrangement can create a guaranteed income stream. AFAs require custom preparation based on the insureds and claim types. In addition, involved attorneys need to be aware of ethical issues involving AFAs and potentially problematic terms triggering violations related to attorney fee handling.
SE Mid-Atlantic - Creative and Emerging Coverage Trends in Florida and Beyond 10:45 AM -11:45 AM
This roundtable discussion focuses on noteworthy law from Florida and other jurisdictions with a focus on creative and emerging coverage trends. Topics to be discussed include:
- Coverage for otherwise non-covered property damage such as rip and tear costs
- Coverage for preventative measures and triggering coverage to repair defective work to prevent ongoing covered property damage; arguing multiple occurrences; concurrent causation; waiver and estoppel; and non-compliance with policy renewal statutes.
National - Insurers Heal Thyself: Proactive, Innovative and Creative Solutions for Construction Claims 10:45 AM -11:45 AM
Construction cases are often handled in the same old ways, using methods that are inefficient and often ineffective, forcing cases to multiple mediations and even trial before there is an opportunity for resolution. Are there new and innovative ways to more efficiently/cost-effectively resolve liability, damages and insurance coverage issues between the parties? There are. The panel will provide real-life examples, ideas, and concepts and engage in an interactive discussion regarding these methods.
Pre-Litigation: A discussion on early retention and communication with experts; methods to avoid discovery of pre-suit expert opinion; working with expert to identify claims and most reasonable road to resolution;
- Coverage issues: Methods for involving coverage counsel prior to retention of defense counsel and methods for communicating coverage limitations and the use of experts to address coverage limitations.
- Post-Litigation: A discussion on early meeting between the adjuster, defense counsel, coverage counsel, and insured to discuss case progression, coverage limitations, and to help the insured understand coverage limitations.
- Early meeting with plaintiff: Early interaction with plaintiffs and their counsel to determine the biggest issues and attempt to resolve those issues.
- Partnering with insured: A discussion regarding ways to work with and not against the insured throughout the litigation.
National - The Affluent Homeowner: Managing Emotions in Multi-Million Dollar Construction Defect Litigation 10:45 AM -11:45 AM
It is easy for defense counsel or the claims professionals to potentially become entangled in the emotional aspects of defending a homeowner's multimillion dollar construction defect claim where the homeowner is litigating on principal alone. Failure to recognize the emotional factors at an early stage could result in excessive fees and costs that do not truly benefit the resolution of the claim and can instead be detrimental to the client/insured and carrier. However, considering how to utilize an expert to focus on what is really a construction defect and managing the litigation in a way that deescalates emotions and focuses solely on the facts of the litigation, can lead to cost savings as well as more efficient and expeditious resolution.
No Learning Objectives Available