2022 CLM Construction Conference
Welcome Reception 5:30 PM -7:00 PM
Kick off your conference experience as we gather for cocktails in The Del's brand-new lavishly appointed Southpointe Center. Meet up with old friends and make some new connections over drinks and hors d'oeuvres.
Breakfast 7:45 AM -8:45 AM
Ocean Ballroom .
Keynote - Post-Pandemic Economic Statistics - Real Estate Market Projections for 2023 8:45 AM -9:15 AM
Ocean Ballroom .
Mr. London will review 2021-22 economic statistics and share his real estate projections for 2023. This is a presentation about the state of the economy and its impact on legal practitioners, suppliers, and advisors to the construction industry. The topics which we will cover will include the state of the global, national, and regional economies, with special emphasis on the real estate sector. This will also include an examination of real estate cycles and their impact on revenues and costs, growth and demographic trends, key issues impacting the market and a forecast of prospective issues and opportunities which are likely to impact this sector.
Premier Session 1 - Easiest Catch: Don’t Be Another Fish in the Dark ‘Net 9:15 AM -10:15 AM
Ocean Ballroom .
You've read the headlines. Unfortunately, the question now is not if your information is going to be accessed or stolen, but when. To inform the attendees of current developments in the digital underground as well as provide realistic advice for cyber protection, Chris will be discussing recent high-profile cybercrime events, including website breaches impacting a variety of organizations and sectors. Chris will discuss particularly dangerous types of threats that might affect organizations involving the Dark Web, the Internet of Things, and phishing.
Break 10:15 AM -10:45 AM
Session 1 10:45 AM -11:45 AM
Various Breakout Rooms.
National - Climate Change: Trends and Strategies To Limit Claims and Mitigate Risk 10:45 AM -11:45 AM
Southpointe C .
Climate change is defined as long-term change in weather patterns and the effects of these changes. We experience the effects of climate change in the form of rising sea levels, more intense storms, floods, and temperature extremes. These changes pose certain risks that impact design professionals, owners, and contractors. There is the potential for claims against design professionals if they do not account for the future impact of climate change. Our discussion will address the emerging risks of climate change and ways design professionals, contractors, and owners may allocate risk in contracts at the beginning of the project. Other issues to be discussed are climate change-related laws concerning carbon emissions.
West - Not My Means and Methods: The History and Future of the Privette Doctrine 10:45 AM -11:45 AM
With the Privette Doctrine, the principle established by the California Supreme Court is the “strong presumption of delegation rooted in the rationale that landowners usually have no right to control an independent contractor’s work, contractors consider the cost of safety precautions and insurance in their contract…” However, California courts have created exceptions to the rule, specifically with the Hooker and Kinsman exceptions. The Hooker exception focuses on the principles of retained control over the contractor’s work; and the Kinsman exception deals with whether the landowner knew or should have known of a concealed hazard on the property and the ramifications of that knowledge if not communicated to the contractors. There have been two recent decisions in the last 6 months regarding the Privette Doctrine and the exceptions to the rule. This presentation looks at the history and recent decisions affecting the Privette doctrine and all of the coverage issues, including additional insured, joint defense agreements, and assignment of counsel.
National - All Worries Run Downstream: Keys to Risk Transfer in Construction Defect Cases 10:45 AM -11:45 AM
Risk transfer is critical in evaluating claims and eliciting participation of other carriers in the defense and indemnity of construction defect actions. Join the presenters as they give a state-by-state (AZ, CA, FL, TX) analysis of the keys to risk transfer in construction defect matters involving all layers of insurance and defense participation.
National - Coverage to Compromise: Mediation Tricks and Strategies To Resolve Litigation 10:45 AM -11:45 AM
Construction litigation is an ever evolving scope of disciplines. Your particular case could revolve around defects, catastrophic injury, delay claims, or a combination of all of the above. As construction litigation continues to evolve, so have the tactics and strategies at mediation. The goal is to resolve the case and there are often different points of views on how to get that done. This panel will look at the point of views from the adjusters, defense attorney, coverage attorney, and the mediator in how they act in order to resolve construction litigation.
National - Evolving Cybersecurity Threats to the Construction Industry 10:45 AM -11:45 AM
The prevalence and severity of cybersecurity attacks continue to dramatically increase affecting industries across the country. The construction and engineering industry is particularly susceptible to attacks, especially due to heightened vulnerability of automated and control systems. The Colonial Pipeline attack and other ransomware attacks targeting critical infrastructure have prompted the U.S. government to enact regulations requiring heightened cybersecurity protections and immediate reporting of cyber incidents. Presenters will provide an overview of the latest cyber threats facing the industry and the evolving governmental, law enforcement, and industry responses, and will discuss best practices on how to ensure your cyber house is in order.
National - Stick to Your Guns: How Changes Can Come Back To Bite You 10:45 AM -11:45 AM
Contractors and design professionals face increased liability as project delivery methods evolve; supply chain shortages force material replacement and/or substitution; and design changes result from cutting corners to control costs and to meet unreasonable schedules. Construction management and the increased use of technology between contractors and design professionals blur the lines of responsibility which results in contractors' potential design liability and design professionals' potential liability for performing tasks outside the professional scope.
This session will be an interactive discussion about current risks arising from contractors involved in pre-construction phase tasks; contractors and design professionals engaging in construction management services; and the pitfalls of changes in design, materials, and methods under the pressure to deliver on time and under cost.
National - Communicating and Understanding Gen Z and Millennial Juries 10:45 AM -11:45 AM
Join us to learn various perspectives on the attitudes and positions of the Gen Z and Millennial populations and their effect on construction jury verdicts. The discussion will focus on the characteristics, propensities, and decision-making processes of these younger individuals and how we can connect with them and draw them to our position at trial. These considerations include the overall style of presentation of a case, core beliefs that determine outcome, and effective methods of communication with these jurors. Presenters will also explore the impact these jurors have on exposure at trial, and whether we need to change our case evaluation accordingly.
Lunch 11:45 AM -1:00 PM
Ocean Ballroom .
Session 2 1:00 PM -2:00 PM
Various Breakout Rooms.
Northwest - Grave Expectations: Handling Complex Grave Injury Claims in Catastrophic Construction Accident Cases 1:00 PM -2:00 PM
Verdicts in construction cases have skyrocketed due to alleged traumatic brain injuries (TBIs). A TBI, if it leads to the permanent loss of work, will be considered a grave injury under the NY Workers Compensation Law. Representing an employer in these cases then becomes complicated. Most modern construction contracts pass the liability down to the employer, and the employer is then expected to defend/indemnify everyone “up the line” which typically includes a GC, an owner, and their agents. Learn of the many moving parts and competing interests especially because of the financial exposure at risk. Presenters will show this is a complex situation that requires the client, defense counsel, and broker to work in partnership for the optimal outcome for the client.
National - Left Out in the Cold: Defense and Coverage Strategies for Parties Outside of the Wrap Policy 1:00 PM -2:00 PM
The wrap policy typically includes all the relevant trades and sub trades who work on residential and commercial projects. But what about the non-wrap project participants? This discussion centers on the interplay of risk transfer from both the viewpoint of the prosecution and the defense; especially relevant to product manufacturers and design professionals who are typically not enrolled in an OCIP for residential and/or commercial projects. The panel envisions the discussion to include the potential exposure of both manufacturers and design professionals, the strategies of the general contractor/owner/developer in pursuing these parties, the motivation and coverage positions of the wrap insurer versus the insurers for the non-enrolled parties, and the contractual obligations these parties may have. Attendee participation will be welcomed on the issues they have encountered in suing and defending these parties. The panel also will address the defense and coverage positions of the manufacturers and design professionals including vendor endorsements, scope of professional liability coverage and exclusions in the same, as well as the unique defenses they may be able to assert. Finally, some of the risk transfer strategies involved in residential versus commercial projects and whether contractual indemnity even comes in to play will be reviewed.
National - Strategies, Tactics, and Ethics of Allocating Responsibility in Construction Claims 1:00 PM -2:00 PM
Join the presenters as they explain how the costs of construction defect allegations should be distributed to responsible parties. The process for allocating responsibility for construction defect allegations is mostly a science, but some critical parts include the “art” of applying professional judgment. Learn the mechanics of those judgment calls including: making a sensible list of defects that can be allocated, assigning values to each defect issue or category, making a list of all possibly involved parties and understanding their role in the project, and assigning justified portions of responsibility for each issue.
National - The Reality Of Virtual Trials, Depositions, Arbitrations, and Mediations 1:00 PM -2:00 PM
Southpointe East .
Virtual appearances are here to stay and we must be able to effectively participate in and evaluate cases that are handled remotely. This includes knowing the pros, cons, and pitfalls of virtual appearances and how to maximize control of the situation. Discussion will include remote jury selection, opening statements, witness examination, arbitrations, and mediations.
National - The Pitfalls and Best Practices for Design Professionals Emerging From the Pandemic 1:00 PM -2:00 PM
In March 2020, work changed dramatically for professionals across all industries, including the face of modern architecture and engineering practice. Many employees abruptly pivoted to remote work within days. In-person interaction became almost obsolete and for design professionals who traditionally enjoy a culture of frequent client contact and collaboration, flexibility and adaptability proved key to maintaining relationships and keeping their businesses afloat.
What are best practices for architects, engineers, and other design professionals moving forward as we emerge on the other side of the pandemic? Dive into this topical issue with our presenters and explore the impact on remote work, the impact on interpersonal relationships at the workplace, the new emphasis on green building and sustainability, and best practices in the new remote world.
National - The Changing Face of Construction Litigation in a Post-COVID World 1:00 PM -2:00 PM
Learn how construction litigation has changed after COVID. Topics for an open discussion will include how delays, material costs, and overruns cause more litigation; how depositions, hearings, mediations, and remote trials are being handled by counsel and claims representatives; and how professional liability, general liability, and design-build cases are affected post-COVID. Additionally, the presenters will discuss how actual cases have had their handling and outcomes affected post-COVID.
Break 2:00 PM -2:30 PM
Session 3 2:30 PM -3:30 PM
Various Breakout Rooms.
West - Construction Defect and the Multiverse of Subrogation 2:30 PM -3:30 PM
More insurance companies are pursuing subrogation claims against settling and non-settling contractors and subcontractors. This panel will present an in-depth look at recent subrogation appellate opinions from 2020 and 2021 which clarified the tone, scope, and applicability of such lawsuits. The results mean more ways for counsel and carriers for contractors and subcontractors to address, analyze, and litigate risk of loss transfers.
Additionally, the panel will set forth the parameters available to a carrier or general contractor when dealing with certain subrogation thresholds; and will pore over the eight essential elements of a subrogation claim.
National - Delay in Completion: A Tsunami Wave of Claims Is Coming Soon 2:30 PM -3:30 PM
Even with the eventual end of COVID, supply chain issues will go on for months or even years. Materials ordered months ahead sit waiting on freighters stuck in long lines in ports or take months to manufacture. This presentation will walk the attendees through a case study to illustrate a delay claim and how it is calculated.
National - Insurance Policies vs. Surety Bonds: Similarities and Differences 2:30 PM -3:30 PM
Although insurance policies and surety bonds may be written by insurance companies, the instruments and claims handling process are vastly different, and coverages are very often misunderstood. Insurance is designed to cover a multitude of risk events such as life, property, medical, etc., and provide financial protection to the insured. Surety bonds are not insurance; they are a credit instrument providing protection to those other than the insured that are relied upon to make credit decisions, such as, hiring a contractor or selling materials to a contractor.
It is important know which instrument addresses property, construction defect, warranty, and other types of construction claims and the differences in the claims handling process. Presenters will explain the differences between insurance policies and surety bonds, the types of coverages shared, and those coverages that are distinct to either instrument.
National - Love Your Neighbor? Evaluating Construction Claims from Adjacent Property Owners 2:30 PM -3:30 PM
Evaluating the potential for construction liability claims should start long before the first truck rolls onto a construction site or the first shovel blade hits the ground. That evaluation should include potential issues from adjacent properties. Often the most contentious claims come from owners of properties adjacent to a construction site, which are not directly involved with the project. From allegations of vibration damage to undermining of adjacent foundations to encroachment onto neighboring properties, design and construction professionals have myriad things to account for that are tangentially related to the construction project at hand and often get overlooked. Best practices require that insurance, legal, and forensic experts be involved at every stage of a project and not just after a claim arises. How should risk managers, claims professionals, legal counsel, and forensic experts evaluate conditions prior to construction and what is the best course of action when such claims arise? Through examination of real-world examples, this panel will explore the challenges faced when evaluating construction claims and discuss best practices for handling these issues.
National - Leveraging Artificial Intelligence Technology to Support Complex CD Litigation 2:30 PM -3:30 PM
Construction litigation data sources and the sheer volume of data continues to grow exponentially with the wide-spread adoption of new project management platforms as well as collaborative cloud-based communication and work platforms. How you collect, analyze, and present this information has a direct impact on just about every aspect of the case. Fortunately, the technology, workflow, and expertise needed has evolved just as quickly. Re-establish evidence as the foundation of your discovery by leveraging advancements such as AI-enhanced workflows. With the skyrocketing cost of litigation, this panel presents a look at current technology available to reduce litigation costs for the insurance carrier.
National - Into the Weeds: Discussions on the Hazy Path of Legalized Cannabis' Influence on NY Labor Law 2:30 PM -3:30 PM
This presentation will explore recent laws, cases, and trends in New York. Discussion will include the latest New York Disclosure Law requirement based on updated legislation; recent Appellate Division decisions promising novel potential defenses in labor law cases; tips for navigating through the increasingly costly and troublesome world of e-discovery; and the emerging impact of decriminalized marijuana on claims and defenses.
National - Time To Saddle Up: Supply Chain 2.0 2:30 PM -3:30 PM
A year ago we saw supply chain as a key element for construction and related claims. It turned out to be much, much more than that. With an unexpected war, trade and economic sanctions affecting key metals and materials, profound labor shortages, and transportation snarls, 2022 and beyond will be the most challenging times of this century. America is poised to spend $1.2 , trillion dollars in infrastructure projects. How will the insurance underwriting, claims, third party administrators, risk managers, in-house and outside counsel address this in a world that changes by the hour, not simply by the day. Presenters will evaluate stability, supply chains, insurance capacity, delivery methods, and a whole lot more in just one hour. Saddle up for our innovative discussion as we provide the tips to stay on your horse and ride out the rocky road to project and claims success.
Break 3:30 PM -4:00 PM
Session 4 4:00 PM -5:00 PM
Various Breakout Rooms.
National - Construction and Insurance Caught in Today’s Crosshairs 4:00 PM -5:00 PM
To say that the pandemic, inflation, and the recent conflict in Ukraine weren’t enough to cause upheaval in both the construction and the insurance communities would be an understatement. Add to that, natural disasters, challenges to new product development, supply chain issues as well as changing laws and regulations in both the construction and insurance industries. These factors and more will impact this brand of risk to all those in the construction, underwriting, and claims communities. Even prior to some of the factors discussed above, the rising costs, shortages, and regulation of construction-related issues have exacerbated the problems we are facing today. We must plan for the future especially considering the continued housing shortages.
National - Labor Shortage Woes: Risking It All With Relaxed Hiring Practices Just To Get a Warm Body? 4:00 PM -5:00 PM
Prepare for this experienced panel to offer insight into risk management and claims handling of workplace accidents, poor product construction, and dangers to the general public caused by having the wrong employees on job sites. Current labor shortages around the country have resulted in relaxed hiring procedures creating a workforce ill equipped for the tasks required. Discussion will center on why this is happening, how to deal with it, and how to avoid it. A clear understanding of the risks involved in ignoring these employment best practices and the costly impact on the company, the employees, and the public.
National - Knowing the Rules of the Game to Maximize Leverage: Indemnity, Tendering, and Vouching 4:00 PM -5:00 PM
This session will examine critical elements of indemnification, tendering, and vouching to maximize available leverage when asserting or defending against construction claims. Seasoned counsel and accomplished claims professionals will discuss relevant experiences and considerations such as the forms of indemnity, anti-indemnity statues, varying applications of vouching principles, and available enforcement mechanisms in a roundtable format. Discussions will address practices and differences in a number of states with an emphasis on Florida.
National - The Alternative to Alternative Dispute Resolution: Arbitration in Construction Matters and Beyond 4:00 PM -5:00 PM
Unfortunately, many construction projects end in dispute and the parties frequently find themselves in the middle of uncharted territory—arbitration! Join us as we explore the pitfalls, debunk the myths, and discuss the benefits of arbitration in construction disputes.
National - Worker Misclassification and Its Effect on the Construction Industry: A Review of National Trends 4:00 PM -5:00 PM
What’s in a name? Calling a worker an employee versus an independent contractor may seem like a minor thing. After all, the nature of the work doesn’t change. The significance, however, cannot be understated. The misclassification of workers continues to be a massive source of liability for the construction industry affecting millions of employees annually and billions in lost wages and legal exposure.
This session will examine these liabilities from a national perspective by exploring growing trends and different states' approaches to the issue of worker misclassification.
National - Dirty Jobs: A Hands-on Approach to Concrete Construction Defects 4:00 PM -5:00 PM
Getting our hands dirty – that’s how this presentation begins with attendees using a fast-set concrete mix in order to get a visual representation of construction/design defects including concrete failures. Using pre-completed concrete exemplars for the presentation, attendees will see, feel, and participate in the failure mechanics of a concrete structure. Throughout the course, the technical focus of this presentation relates to allegations of construction defects from pre-litigation matters to those that are in all stages of litigation. Additionally, with a diverse claims team co-presenting, legal perspective and best practices are also provided, specifically related to the tripartite relationship, attorney-client privilege, and expert witness interactions.
Beachfront Cocktails 5:00 PM -6:30 PM
Ready for some California dreamin'? Join us on on The Del's legendary private beach for delicious cocktails, networking, and an IG-worthy view of the sunset over the Pacific that will make your friends back home jealous!
Breakfast 7:45 AM -8:30 AM
Ocean Ballroom .
Premier Session 2 - Rapid Fire Relay: Life in the Fast Lane with Virtual Mediations 8:30 AM -9:15 AM
Ocean Ballroom .
Premier Session 3 - Women in Construction: Our Presence, Our Impact 9:15 AM -10:15 AM
Ocean Ballroom .
Join us for straight talk about the challenges women contend with in a male-dominated industry such as construction. Our panelists will look at how it started for the women who’ve come before and how it’s going today. Looking beyond statistics to highlight where the panelists see room for women to carve out career growth and opportunities to excel. The discussion will include solutions that foster change in workplace environments as well as real world suggestions for improving visibility and gaining the confidence and expertise to command the room, especially in a construction environment. Our moderator will frame this panel discussion from the perspective of what he needs to know to help break the proverbial glass ceiling in the contemporary workplace. We invite male allies to join the conversation and help craft actionable solutions to the challenges that still exist.
Break 10:15 AM -10:45 AM
Session 5 10:45 AM -11:45 AM
Various Breakout Rooms.
South - Don’t Mess With Texas: An Update on Need To Know Changing Texas Coverage and Liability Issues 10:45 AM -11:45 AM
Texas has remained substantially unchanged over the past several years in its analysis of key legal concepts related to liability for construction claims. However, issues surrounding coverage for construction defects are very much in a state of flux. Texas legislature and courts have been busy clarifying, and in some instances altering, the law, ultimately impacting contract drafting, policy interpretation, and litigation strategies.
Complex areas including the duty to defend; allowances of extraneous evidence; clarification of Texas’ Anti-Indemnity Statute; improper applications of Time-Limited Demands; and pursuit of design professionals and contractors, has caused the industry to question the best approach to litigating these cases. Presenters will provide tips on how to maneuver through new and developing case law and statutes in Texas to arrive at a successful result to protect insureds, while at the same time applying the new laws to policy interpretation.
West - When You Are Between a Rock and a Hard Place 10:45 AM -11:45 AM
Ethical decisions are rarely quick, simple, or easy. We make ethical decisions consciously and unconsciously. However, staying consistently on the ethical side of the line encourages ethical decision making. Join this discussion as it weaves through multiple practice areas including forensic investigation, insurance, and litigation.
A quick overview of ethics will begin the conversation and will be followed by strategies for ethical decision making that are geared for claims. Case law will be discussed including the consequences of the ethnical and unethical decisions that were made in each case.
National - Hot Topic: Contractual Indemnity and Additional Insured Provisions 10:45 AM -11:45 AM
At the end of the day, most workplace accident and construction defect cases boil down to who pays what. This, in turn, often depends not only on liability and damage issues but also contractual indemnity and additional insured rights/obligations. This presentation will provide an update on recent trends in contractual indemnity and additional insured issues, including recent court decisions limiting contractual indemnity and additional insured provisions; whether certificates of insurance are sufficient to establish additional insured coverage; the breadth of the duty to defend additional insureds; and when the duty to defend an additional insured starts and ends.
Additionally, the presenters will discuss how handling of these issues may differ in different jurisdictions throughout the country. Finally, starting with examples from the presenters, the audience will be invited to discuss best practices in making and responding to contractual indemnity and additional insured tenders.
National - Creative Settlement Strategies When Coverage Is Limited 10:45 AM -11:45 AM
The conundrum presented in many cases is as follows: How to settle with limited insurance coverage? Many, if not most, policies have exclusions that limit monies available to contribute towards indemnity. Resolving such a case requires strategic coordination among insurance professionals, insureds, insureds’ personal counsels, plaintiffs’ lawyers, co-defendants’ counsels, and perhaps mediators. In a roundtable format, the presenters and audience will share their insights, tips, ideas, and solutions.
National - Riding the Construction Wave: Emerging Trends and Risks in a Volatile Construction Market 10:45 AM -11:45 AM
In 2020 and 2021, a global pandemic was an unknown risk that the construction industry could never anticipate. But in 2022, that risk won't stop the industry from moving confidently into the future. So, what is the most urgent issue impeding progress? In a word, shortages—specifically involving materials and labor. Not having the materials or the personnel to complete a project on time kills revenue and the bottom line. The prize ahead is the red-hot North American construction market, which looks to take advantage of the U.S. infrastructure bill. That makes resilience, in managing supply chain risk and labor shortages, perhaps the most important issue for the construction industry in 2022.
Join the discussion to explore the current issues facing construction with both insuring buildings and adjusting claims and get a preview of the advances being made and becoming more ubiquitous as we enter 2023.
South - Southern CD - Not So Charming 10:45 AM -11:45 AM
This presentation consists of all participants in a typical CD claim: an insurer representative, insurer defense counsel, policyholder counsel, and a mediator. Presenters will first discuss the core concepts and hot topics in the Southern United States including South Carolina, Florida, and Texas. Concepts will include proper reservation of rights letters, defense cost contribution, defending right to repair proceedings, trigger of coverage, allocation, coverage for rip & tear/preventative measures costs, and additional insured coverage. The second part of the presentation will be a discussion on the strategy and steps necessary for a prompt and efficient claim resolution through mediated settlement.
No Learning Objectives Available