2017 CLM & Business Insurance Construction Conference
Opening Session / Keynote
The Construction Conference opening session features Mark Lanterman, Chief Technology Officer at Computer Forensic Services, who will deliver his keynote titled “Don’t Be Another Fish in the Dark ‘Net”.
Dinner on the USS Midway
Premier Session 1 - Construction Claim Leaders: Emerging Trends in Coverage and Litigation in 2017 and Beyond
Stephen Henning, Wood Smith Henning & Berman LLP
Steve Lokus, Navigators, A Brand of The Hartford
Phyllis Modlin, Markel Service, Incorporated
Karen Rice, AXA XL
Todd Schweitzer, Marsh
Wilson Townsend, Self Employed
Hear construction claim leaders share their perspectives on trends, challenges, and opportunities present in the industry today. The panel also will look to the future of the industry and what companies and professionals must do to remain competitive and successful.
1. Emerging coverage arguments in the construction policies which will be at plan in 2018 and beyond. This will identify what the specific coverage issues, concerns, unresolved areas and venues that are cause for concern for the policyholder, claim professional and counsel handling construction claims throughout the nation.
2. Evolving changes in the construction industry and processes and how that translates to claims after the project is complete. This will include the new and emerging theories of liability given the different types of construction projects, mixed use, commercial pieces and urban development which has accelerated in the past few years.
3. Impact of technology in construction and how it is impacting claims now and in the future. From BIM modeling to communication during the construction sequence, the evidentiary trail is changing from yesteryear. How the claims are tracked and data is extracted, analysis and utilized in the claims profess is something every insured, claim professional and general counsel will need to know to evaluate and analyze claims in the future.
Session 1 - National - 50 State Survey of the Applicability of Statutes of Repose to Indemnity and Contribution Claims in Construction Cases
Marie Cheung-Truslow, Law Offices of Marie Cheung-Truslow
Margaret Donnell, Self Employed
Donna Hunt, Ironshore Insurance Company
Victoria Remolina Schwier, AXA XL
Gary Strong, Gfeller Laurie LLP
Covering how to apply statutes of repose to indemnity and contribution claims, this session will include a discussion of the historical development and policy reasons for construction statutes of repose as well as the current state of law regarding the application of statutes of repose to indemnity and contribution claims. The panel will highlight some unique approaches states have taken when addressing statutes of repose in the context of work done by a contractor and a design professional.
1. To be able to identify early on in a litigation whether defendant has viable Statute of Limitations or Statute of Repose defenses.
2. How the Discovery Rule affects Statute of Limitations and Statute of Repose
3. How the Statute of Repose affects the viability of Contribution and Indemnity claims.
Session 1 - National - Can the Industry Improve? Addressing the Current Challenges of Bias in the Construction Litigation Industry
Mickey deLaup, Delaup Law Firm
Elaine Fresch, Hawkins Parnell & Young, LLP
Yolanda Gonzalez, North American Risk Services NARS
Mary Smythe-Ceko, Self Employed
Gerald Wright, Self Employed
Although the construction industry has made great strides in the last 25 years to eliminate discrimination and bias, it is an area that needs continual improvement. This interactive session will address the current status of diversity in the construction industry. The session will center around bias and diversity challenges that the construction industry faces today and what can be done to address these challenges.
1. Bias of many types still exist in the Construction Industry even with the progress made over the last twenty five years.
2. Bias can be exhibited unconsciously by people working at insurance carriers, law firms, and construction companies.
3. Being aware that these types of bias exist is the first step towards trying to eliminate them while handling claims/lawsuit.
Session 1 - National - Interplay Between Design Professionals and Contractor on Construction Projects and Litigation
Melanie Brown, Munich Re Specialty Insurance
James Jardin, Collins + Collins LLP
Rinat B. Klier Erlich, Zelms Erlich & Mack
Matthew Rabin, Arch Insurance Group Inc.
What roles belong to the design professional versus the contractor when working together on a construction project? Key contractual provisions, such as indemnification and limitation of liability, will be discussed as will the differing standards of care applied to the design professional and the contractor. The panel will address the types of claims and defense that can be asserted when a construction project goes awry.
1. The licensee or attorney will better understand how to approach defense of construction projects where both design professionals and contractors are involved. The licensee or attorney will be able to better understand how to review the project (contracts, indemnity and the different duties and damages) in order to better anticipate the parties' respective positions.
2. The licensee or attorney will be able to use the interplay between design and construction to better set up the case for settlement. The licensee or attorney will understand the strength and weaknesses of each discipline and how to better evaluate the value of the case.
3. The licensee or attorney will understand the different insurance policies and coverage considerations between the design and construction groups to evaluate coverage and settlement.
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Session 1 - National - We Have a New Claim Where? Best Practices for Handling Regional and National Accounts
Tara Barlin, AIG
Christine Bernstock, AECOM
Julian Ehrlich, Aon
Cesar Pereira, JudLau - OHL USA
Darrell Whiteley, Lewis Brisbois Bisgaard & Smith, LLP
Ideally claims and coverage issues across all jurisdictions should be handled smoothly at the same high level of competency that you expect at the local level. This session will address concerns, problems, goals and solutions in handling claims across different geographic areas. Speakers will discuss the critical importance of getting the best personnel in place locally, including attorneys, investigators, and experts, and the benefits of maintaining uniformity of standards, training, reporting, billing, and case tracking. The panel will address the “special account instructions” an insured should push for and the importance of early tenders and notification to all potential carriers. Speakers also will address how communication, teamwork, and trust between the insured, broker, carrier, and counsel are essential in resolving these differences and ensuring long-term success.
1. The Broker and the Attorney need to draw upon and control the resources of their entire organization to provide the best service to the client. In doing so, careful attention must be paid to key players, jurisdictional issues, the overall goals of the client’s business, loss response and reserve policies, and venue-specific procedural rules.
2. The roles and the interests of Client, Broker, Insurer, and Counsel are all interrelated. Relationships of trust developed over time will help to improve results and reduce surprises, which is even more important across wider geographic differences. Effective communication between all parties involved in claims handling can prevent or minimize disagreements. This requires keeping all parties informed of important dates, pressing issues, strategies, and goals.
3. The benefits of properly managing a national account are magnified, but so are the pitfalls if the account is not managed well. The best practice for handling claims on a national level is clear initial planning, from the initiation of a claim and re-iterating expectations after personnel changes.
Session 1 - OSHA Compliance Under the Trump Administration
The Trump administration has indefinitely postponed the July 1 deadline for employers with 20 to 249 employees in high-risk industries such as construction to electronically submit information on their 2016 injuries and illnesses. Meanwhile, opponents of this new OSHA reporting rule have filed a complaint in federal court in Texas, arguing that the rule is unlawful because it prohibits or otherwise limits incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs. The complaint also asserts that the rule requires employers to permit unwarranted delays in employee reporting of injuries and unlawfully requires employers to electronically submit confidential and controversial information to an online database that will be made available for public dissemination. This session will address this and other OSHA rules affecting the construction industry, and how enforcement is changing under the Trump administration.Back to top
Session 1 - Southeast - No Reservations: Crafting a Reservation of Rights Letter After Harleysville v. Heritage
Samia Albenberg, Richardson Plowden & Robinson, P.A.
Aimee Cosper, Coaction Specialty Management Company
Laura Paton, Gordon Rees Scully Masukhani
Abby Seymour, Westfield Insurance
This session will be an exciting discussion on how Southeastern Courts are treating Reservation of Rights (RORs) letters in construction cases. The primary case for discussion is Harleysville v. Heritage, which has thrown South Carolina into chaos as it retroactively imposes strict new requirements on the contents of RORs, arguably limits the time during which an ROR can be sent, and potentially impose new duties on construction defense counsel. The speakers also will address what other states in the Southeast require of RORs and how to craft a letter that meets each state's requirements.
1. The requirements of Reservation of Rights letters are evolving and involve more specific inclusion of information than in the past.
2. Different states have imposed their own requirements for proper Reservation of Rights letters, and while there are overarching principles consistent among them, many requirements are specific to claims within their borders.
3. South Carolina’s recent case law on the issue of Reservation of Rights letters marks a significant change in these requirements which may reflect a more general change in the Southeast.
Session 1 - Southeast - What is Broken in Right to Repair Statutes?
TJ Cate, Rimkus Consulting Group, Inc.
Jennifer Franklin, AFICS
Terrence Lavy, Schmucker & Lavy Legal, PLLC
David Lee, Lee, Landrum & Ingle
Donna MacConnell, IMA
In the wake of the Altman Contractors v. Crum & Forster case, the Florida Supreme Court is addressing whether a Notice of Claim pursuant to Florida Statute Section 558 invokes a duty to defend under CGL policies. This discussion will address the Altman decision and its implications as well as various approaches to the investigation of claims at the Notice of Claim stage. The group also will discuss whether the Notice of Claim process can be leveraged as a tool for investigation of a potential claim even if a duty to defend is not implicated.
1. Common elements of Right to Repair statutes relating to notice and procedural requirements.
2. Practical impact of Right to Repair statutes on construction defect litigation.
3. The role of the carrier and coverage implications in complying with Right to Repair statutes.
Session 1 - West - Emerging Subcontractor Battles: On the Frontlines with Crawford and Additional Insured Claims
Virginia Balogh, Nationwide Insurance Company
Anne M. Goyette, Griffiths Goyette
Brian Sanders, Koeller, Nebeker, Carlson & Haluck, LLP
Irene Yesowitch, Self Employed
Dive into a frank historical discussion of Additional Insured tenders by developers and general contractors in pending construction defect litigation. Session panelists also will address the common and not-so-common policy terms and potential disparity in their interpretation by insured and insurer. The discussion will highlight the foreseeable consequences if the current trend continues and explore how the industry can move toward self-correction with the least disruption of existing business models.
1. Insureds may need education in respect to the products and coverages available to them, both as owners and general contractors on construction projects and as trade contractors being asked to indemnify and insure those owners and general contractors; and they should be advised to consult counsel and their brokers jointly with respect to the indemnity scopes and insurance coverages required under the proposed contract and the enforceability of those requirements, before purchasing coverage.
2. Best practice is to treat all tenders as being urgent and afford them immediate and proper attention, including investigation outside the allegations of the pleadings and occasionally inadequate materials and information submitted with the tender, and generating a prompt / well-reasoned response.
3. Prompt and proper handling of and response to AI tenders is one important factor in reducing the duration, and therefore cost, of construction defect litigation, and also serves to significantly reduce the likelihood of later bad faith actions by primary insureds who are sued for contribution by carriers who paid the owner / GC defense costs for which an additional insured tender was ignored or denied by their own insurer.
Session 1 - West - Minding the Gap: Addressing Liability for Inadequate Insurance Coverage
Kevin Clonts, Rizzo Bosworth Eraut
Jeffrey R. Neidle, AIG
Anna Raman, MacMillan Scholz & Marks PC
Steve Sloman, Liberty Mutual
When insureds do not obtain policies that cover the risks to which they are exposed, myriad problems arise. This can happen when insureds do not adequately convey risks or when brokers, underwriters and/or insureds do not thoroughly review policy coverages and exclusions. The interplay between coverages and endorsements can have results that the insured and broker may not have anticipated and the insured may be left without coverage or a defense. This session will explore these layered and complex issues.
1. Coverage gaps can create the potential for liability for all parties involved in the insurance transaction, including the insured, the carrier, and the broker/agent. In addition, if potential coverage gaps are discovered after the carrier has appointed defense counsel, there is the possibility that counsel can face liability.
2. Whenever potential coverage gaps arise, carriers face a heightened risk for bad faith claims.
3. All parties – insured, carrier, defense counsel, and broker/agent – must tread with caution if it appears that there is the possibility for an insurance gap.
Session 2 - Emerging Risks in the Construction Industry
Charles Harris, Lewis Brisbois Bisgaard & Smith, LLP
Karen Keniff, Zurich North America
Penni Nelson, Hillwood Development
Joseph Russo, Willis Towers Watson
Geopolitical instability and workforce management issues are the two biggest challenges facing the construction industry today, according to Willis Towers Watson’s Construction Risk Index Report, which surveyed 350 C-suite executives across the globe. Geopolitical issues were the top threat overall, primarily due to uncertainty of government support and financing, postponement and delays, changes in strategy, and commitment to project pipelines, while workforce management issues were the second-leading threat, triggered by the increasing requirement for digital skills, a global employee network, and disparate labor laws making workforce demands even more complex. This session will explore these and other emerging risks facing the construction industry.Back to top
Session 2 - National - Construction Management: Maneuvering Liability Pitfalls in Modern Construction
Kenneth Bloom, Gartner + Bloom PC
Henry Koffman, University of Southern California
Julia Manganaro, Navigators, A Brand of The Hartford
Wakako Uritani, Lorber, Greenfield & Polito, LLP
Construction management as a stand-alone professional service in the construction industry is a relatively new creation. Historically, building construction consisted of a tripartite relationship between the property owner, the architect, and the general contractor who would then sub out the work to subordinate contractors. Construction managers have a place in modern construction and there are two distinct types of them: Construction Management Agency and Construction Management At-Risk. This panel will discuss the difference between the two types and the differences in their scopes of work. The panel also will discuss how to avoid unintended liability based on the language in the professional service agreement.
1. Define the construction manager’s scope of work with specificity in the contract. Also define roles of owner, architect, engineer and general contractor to avoid gaps and overlaps. Define terms to avoid liability arising from ambiguity in contract language.
2. Do not assume risks that are not in your control and do not increase scope of responsibility through conduct.
3. Insure with both E&O and CGL policies.
Session 2 - National - Handling the Policy Limits Demand
Keith Bremer, Bremer Whyte Brown & O'Meara, LLP
Phillip Marquez, Premier Claims Management, LLC
Charles Numbers, Meredith, Weinstein & Numbers
Your session panelists will address the handling of policy limits demands from the differing perspectives of the claims handler and the attorney. They will also discuss the handling of limits demands at various levels of coverage and tendering to limits and negotiating a settlement without rejecting the demand.
1. To properly identify Insurance policies, multiple policies, and policy limits demand when handling a policy limits demand.
2. To properly identify the role of the claims handler when presented with a “purported” limits demand.
3. To properly utilize and leverage the role of the defense attorney when presented with a “purported” limits demand, by both the carrier and attorney communications associated with limits demand and resolution attendants to a limits demand.
Session 2 - National - How the Use of Drones and 3D/BIM Modeling is Changing the Defense of Construction Defect Litigation
John Cominski, Self Employed
Robert Hancock, Munsch Hardt Kopf & Harr, P.C.
Tyler Marsh, Self Employed
Dennis Morey, DPR Construction
The construction defect community has seen an emergence of new and exciting technologies that are now being applied to defending construction defect claims. This panel will discuss the current litigation climate and how data obtained from drone investigations is being used to successfully defend clients as well as how courts are leaning toward the use of this technology through discovery and at trial. This panel also will discuss the advances with 3D/BIM modeling and how scale 3D models can be used in mediation settings as an interactive tool.
1. The factual data we can collect using new technology significantly effects the expert opinions in our modern day industry, and helps in determining the real cause and origin of the issues.
2. Claims investigations will be more efficient and less costly due to the ability to increase sample sizes of the construction components, assemblies or systems in question.
3. Carriers need to have a role in working with their insureds to understand potential risks involved in utilizing Unmanned Aerial Vehicles(UAV’s/drones) as well as the need to keep themselves educated on FAA regulations.
Session 2 - National - To Defend or Not to Defend: The Dilemma for Carriers, Subcontractors, and Their Counsel
James Hailey, Lewis Brisbois Bisgaard & Smith, LLP
Jayne Pittman, Conroy Simberg
Caryn Siebert, Gallagher Bassett Services, Inc.
Don Soto, Gallagher Bassett Services, Inc.
Discussion will center on the ongoing dilemma in construction litigation regarding demands for defense and indemnity from general contractors and developers to subcontractors and their carriers. Panelists will address the applicable case law and statutes in the West, Southeast, and South regions relating to indemnification and additional insureds. Hear firsthand experiences in large loss claims handling with examples of the pros and cons in accepting tenders of defense.
1. Be aware of the law in jurisdiction where case is filed, as it will impact both the coverages available and the exposure for each participant. Some states are more favorable than others.
2. A successful settlement of indemnity at mediation requires a positive relationship between the adjusters and defense and coverage counsel as well proper planning from the demanding contractor of requested information in a timely matter to evaluate exposure and set appropriate reserves.
3. Resolving indemnity contribution early should be the carrier’s goal.
Session 2 - Southeast - Deconstructing Explosive Issues
Kristina Ashcraft, MC Consultants, Inc.
Brandon Beane, Coastal Construction Services Group
Mark Franke, Old Republic Contractors Insurance Group
George Truitt, Cole, Scott & Kissane, P.A.
A case study approach will be used to educate attendees about the types of claims and coverage issues presented in a complex construction case. The discussion will include theories of liability and defenses available to the involved parties.
1. Understand the steps and efforts involved in the immediate aftermath of a condominium explosion.
2. Understand legal implications and strategies for all anticipated lawsuits stemming from the explosion.
3. Understand all insurance coverage and related subrogation implications.
Session 2 - Southeast - There's Nothing Wrong with the Construction, But It's Still YOUR FAULT!
Denise Anderson, Butler Weihmuller Katz Craig LLP
Michele Blais, Chubb
Chad Dunigan, Koeller, Nebeker, Carlson & Haluck, LLP
David Smith, Toll Bros, Inc.
Explore recent legal developments and trends pertaining to claim resolution from the varying perspectives of the developer, general contractor, subcontractors, and insurance professionals. This diverse and often adverse group will shed light onto what is working when dealing with complex construction claims as well as strategies to resolve claims involving named and additional insureds. Speakers also will debate the pros and cons of traditional litigation versus alternative dispute resolution.
1. Always tender early and often.
2. Be mindful of repose dates and statute of limitations.
3. Resolve claims if you can, as there is a value in getting out early.
Session 2 - West - Burning Down the House: How Tidwell Enterprises and Pyrolysis Could Affect Construction Defect Coverage
Angela Hagerty, Align Claims Services, Inc.
Vivian Lindsay, Navigators, A Brand of The Hartford
Mike Melendez, Kennedys
Geoff Wood, Ericksen Arbuthnot
Tidwell Enterprises v. Financial Pacific Insurance involved an underlying suit against a chimney contractor for fire damage caused by a defective chimney cap. The contractor’s CGL insurer denied a defense because the fire occurred after the policy period. Tidwell addresses whether a chemical change—pyrolysis—in the chimney chase’s framing prior to the fire and during the policy period constituted potentially covered property damage creating a duty to defend. While the California Court of Appeal said yes, this case is now before the California Supreme Court. Our roundtable will discuss the issues before the Supreme Court and the potential impact that they could have on occurrence, property damage, continuous loss, the duties to defend and indemnify, the relationship between actionable claims and property damage, and using expert opinions.
1. One evaluating coverage must look closely at the timing of damages, including in situations where timing seems obvious (such as a fire loss) to ensure that the insurer meets its obligations.
2. Factual allegations in the pleading may affect the credibility and reliability of extrinsic evidence.
3. In determining its indemnity obligation, an insurer must be certain to understand the rules that could apply to continuous and progressive losses because the initial impression regarding coverage may not be accurate.
Session 2 - West - Red Light, Green Light: When CC&Rs Give HOAs the Go Ahead to Sue
Matthew Adler, AXA XL
Adrienne Cohen, Law Offices of Adrienne D. Cohen
Rex Heeseman, JAMS - Heeseman
Janice Michaels, Wood Smith Henning & Berman LLP
Traditionally hotbeds of defect litigation, CC&R’s are emerging as the newest battleground over standing. Effective shields to litigation or ground zero for new caselaw? Find out in this session.
1. Read the CC&Rs to determine whether the HOA has standing to sue and look for any conflicting or superseding statutes that might limit standing despite what the CC&Rs say.
2. Preserve defenses to standing in answer and prepare discovery to determine facts.
3. Examine damages claimed in light of CC&R definitions and maintenance manual.
Session 3 - Fatal Falls - The No. 1 Risk in Construction
Eugene Boule, Wilson Elser
Mike Fredebeil, Willis Towers Watson
Aaron Haimowitz, NFP Corp.
Thomas Kramer, LJB Inc.
Construction workers engage in many activities that may expose them to serious hazards, such as falling from rooftops, unguarded machinery, being struck by heavy equipment, electrocutions, silica dust, asbestos, etc. In fact, according to a recent study by the Center for Construction Research and Training, fatalities are increasing in the U.S. construction industry, particularly among Hispanic workers, as the sector recovers from the recession. The annual number of fatal falls in construction increased by 36.4% from 269 in 2011 to 367 in 2015. Fatal falls increased at a faster pace among Hispanic workers, with the number of deaths of Hispanic construction workers increasing 28.3% from 106 in 2014 to 136 in 2015. What can risk managers in the construction industry do to prevent these fatal falls, especially among Hispanic workers?Back to top
Session 3 - National - Challenging Experts in Building Product Cases: Clearing the Smoke and Smashing the Mirrors
Valerie Garcia, Hall & Evans, L.L.C.
Aaron Lorentz, Installed Building Products
Michael Montgomery, Butler Weihmuller Katz Craig LLP
Lee Wright, Tokio Marine HCC
Cases that involve building products and materials typically see a host of experts offering opinions on everything from product design to performance. Often, the opinions and testing methods used by these experts are simply accepted by the parties to the litigation. However, increasingly, manufacturers and suppliers are using the standards for admissibility set forth in Daubert and its state-based progeny to successfully challenge experts on several fronts. More and more, courts are finding that the methods used by experts in these cases amount to little more than junk science that fails to withstand the stringent test for admissibility. This session will review some of these recent court decisions and provide strategies and tips for challenging the methods, theories, and opinions of the product failure expert.
1. Selecting the right expert or experts in a construction defect case is critical to any successful plan for favorable resolution. In addition to rebutting the claims raised, the right expert can be invaluable to any challenge of the opinions of the opposing experts.
2. Every step should be taken to uncover the substance and basis for the opposing expert’s opinions. Challenges often can come from areas that are often overlooked.
3. A well-developed strategy to challenge the opposition expert is a must and can lead to a favorable resolution more often than not, saving money in the long-term.
Session 3 - National - Coverage Nightmares
Rebecca Appelbaum, Gartner + Bloom PC
Patrica Davis, North American Risk Services NARS
Jason Judovin, Munich Re Specialty Insurance
Maria Quintero, Hinshaw & Culbertson LLP
Jannea Rogers, Adams and Reese, LLP
Nightmare jurisdictions! Nightmare decisions! Nightmare opponents! This panel will look at handling claims and litigating cases in those jurisdictions that present unique challenges when it comes to insurance coverage. Also, strategies for working within the framework of restrictive case law and legislation impacting options for both policyholders and carriers when handling and litigating claims will be discussed. The panel will present tips for dealing with each particular hurdle as well as what to do when your client/judge/opponent/co-counsel just doesn’t understand coverage.
1. It is necessary in handling a claim to know whether there is any legislation or decisional law that alters a carrier’s traditional expectation or affects a carrier’s ability to handle claims in a way that falls within its usual expectations for similar claims.
2. Policy language matters and it may not mean what you’d ordinarily expect.
3. Preparation and attention to detail can prevent a bad situation from turning into a nightmare.
Session 3 - National - Don't Get Wrapped Up in Navigating Wrap Ups!
Thomas Brown, National Claim Services LLC
Julie Herman, Discovery and Seeno Homes
William Nebeker, Koeller, Nebeker, Carlson & Haluck, LLP
Matthew Summers, Willis Towers Watson
Wendy Testa, Wilson Elser
This presentation will focus on the mechanics and pros and cons of wrap up policies related to effective risk management and risk transfer as compared to traditional policies. It also will discuss the reality of contractual obligations of defense and indemnification pursuant to wrap versus traditional policies and explore the effect of wrap up policies on coverage and contractual defenses as well as the different benefits (or lack thereof) to contractors, design professionals, named insureds, and enrolled members.
1. The difference between a wrap up insurance program v. a traditional program.
2. Pros and cons of a wrap insurance program and how your status on a project may affect membership and member benefits.
3. How to recognize and avoid the pitfalls of a wrap insurance program.
Session 3 - National - From the Mouths of Millennials: Perceptions, Realities and Strategies for Dealing with Millennials in the Construction Industry
Kelly Behrens, Vela Insurance Services LLC
Dan Berman, Wood Smith Henning & Berman LLP
Paul Mason, AXA XL
Jamie Samaniego, AmTrust Group
An accomplished panel of Millennials will provide insight into what makes their generation tick, separating fact from fiction. Gain insight on how to inspire, retain, motivate, and tap into the largest generation in the workforce today.
1. Motivating, supervision and retention of the millennial claim professional, risk manager, general counsel and outside counsel.
2. Evidentiary issues presented in 2017 and beyond, how they impact the millennial claim professional and trier of fact.
3. Understanding the impact of the millennial juror - from selection, evidence, themes and strategies to minimize exposure and liability.
Session 3 - National - The $227 Million Dollar Settlement and How to Avoid It
Bert Dizon, Gallagher Bassett Services, Inc.
Taranae Hashemi, Gallo Vitucci & Klar
Linda Pretzel-Roberts, RiverStone Resources LLC
David Zehner, Zehner Trial Consulting
On February 8, 2017, the longest and largest Pennsylvania civil trial settled for a record $227 million and forever changed complex construction litigation. This diverse panel will provide an introspective and unique analysis of how the collapse of a four-story wall onto a one-story building in Philadelphia yielded unprecedented results. Attendees will learn about the tactics used during the litigation and they will come away with a better understanding as to how to avoid similar results. Speakers will address litigation and claim management from the moment of loss through trial, including the impact of media coverage, importance of an immediate and tenacious offense by defense counsel, expert retention, and evidence preservation and inspection.
1. The importance of swift retention of counsel and implementation of a defense strategy which serves to combat any public perception which plaintiffs’ counsel may have achieved within the days and weeks immediately following the cause of action.
2. The importance of identifying with whom to align in building a defense and, more importantly, the importance of willing to pivot from that defense strategy in the event that damning evidence or testimony is presented through case development.
3. The benefits of bifurcating trial when apportionment of liability is not known and may significantly impact the settlement valuations of counsel and adjusters.
Session 3 - Southeast - Defects and Denials in Dixieland
J. Stephen Berry, Builders Insurance Group
Laura Forrest, Hedrick Gardner Kincheloe & Garofalo, LLP
Ken Gillespie, Blair & Company
Erik Sikorski, Builders Insurance Group
It's not just the weather that's hot in Dixieland, this panel will address the hottest coverage and extra-contractual issues currently creating new risks for insurers in the Southeastern Region. Topics will include notable case law pertaining to new requirements for Reservation of Rights letters in South Carolina, Moeller Counsel in Mississippi, Additional Insured risk transfer in North Carolina, and Rip and Tear coverage in Florida.
1. Reservation of Rights letters must now be drafted with heightened care.
2. Coverage for Construction Defect claims varies significantly from state to state.
3. Extra-contractual exposures arising out of construction claims are increasing in some states and decreasing in other states.
Session 3 - West - Cascadia Construction Claims: Surviving in the Wild Pacific Northwest
Michael Bramhall, Self Employed
Sandra Heiden, Arch Insurance Group Inc.
Daniel Lounsbery, RiverStone Resources LLC
Kevin Michael, Cozen O’Connor
The Pacific Northwest is a wild land of trees, water, mountains, and high desert. Not only is the landscape wild, but its laws can be wild. From the cranes of Seattle to the bridges of Portland, this session will explore this vast wilderness in the context of construction claims. The discussion will center on what makes this geographic region so unique and techniques for surviving in the wilds of the Pacific Northwest.
1. Understand the nuances of Pacific Northwest construction claims and what makes this region different.
2. Have a thorough understanding of the key legal claims and expert issues that arise in the Pacific Northwest.
3. Learn effective tips and strategies for handling claims in the Pacific Northwest.
Session 3 - West - Risk Transfer for Complex Construction Cases
Arash Arabi, Bremer Whyte Brown & O'Meara, LLP
David Blau, Blau | Keane Law Group, P.C.
Henrietta Hinojosa, National Claim Services LLC
Keith E. Smith, Wood Smith Henning & Berman LLP
Ralph Woodard, Navigators, A Brand of The Hartford
Changing laws and policy language conflict and create new battlegrounds in efforts to transfer the risk presented by high exposure construction cases. This session will examine and discuss the interplay between contractual indemnity and insurance policy coverage. The discussion will center on indemnity and defense obligations, the Crawford decision, and additional insureds.
1. To properly identify an indemnity provision and its impact regarding the same;
2. To properly identify and trigger a defense obligation through the indemnity provision; and,
3. How to utilize and leverage an indemnity and defense obligation to protect your insured/client.
Session 4 - Finding Business Freedom Through Captive Insurance
Steve Bauman, AXA XL
Jeremy Huish, Artex Risk Solutions, Inc.
Chris Mandel, Self Employed
Dennis Silvia, Cedar Consulting LLC
Unlike traditional insurance programs, a captive insurer operates like a custom-engineered piece of architecture, providing a strong foundation for a construction firm’s risk management program. With a captive, construction companies have far more control over claims and litigation management. Captives also can provide coverage for many risk exposures that traditional insurers do not cover. Over time, captives also can be a worthwhile investment that can offer construction companies significant cost savings. Group captives, in particular, enable contractors to spread risk among several partners, and there are currently many captives formed for both the construction industry and specific trade contractor groups. This session will explore the use of various captive structures in financing construction risks.Back to top
Session 4 - National - Class Actions - A Blessing or a Curse?
kevin follett, RiverStone Resources LLC
Rima Ghandour, Ghandour Law
Barbara Laskaris-Lorigan, Golden State Claims Adjusters
Jack Levy, GLB, PC
Class action lawsuits in construction defect cases have been used in various states by plaintiffs’ counsel as they provide a convenience and economy of scale that may be hard to resist. For claims professionals, defense, and coverage attorneys, the class action construction case provides an opportunity to explore new and alternate defense and coverage strategies. This discussion will focus on when a class action is a good idea, and when it is not, as well as coverage issues that a class action lawsuit may unearth.
1. Knowing and understanding the products going into buildings is important to avoid litigation and class actions.
2. In construction defect litigation, it is harder to succeed at certifying a class than it looks.
3. The expense of class action suits is enormous – money is well spent on an aggressive fight over certification.
Session 4 - National - Experts: Their Care and Feeding to Make Sure They Don't Bite!
Guy Hollingsworth, Hanover Insurance
Kelly Howell, IOA Insurance Services
Mark Savel, Mark H Savel Architects, Inc.
Brian Stewart, Collins + Collins LLP
Experts are a necessary component in virtually any construction litigation and therefore their care, feeding, and management are critical ingredients to a successful result in any claim. The session will present best practices for dealing with experts from the perspective of cousel, claims handler, and broker.
1. Timing of selection of the appropriate consultant and timing on that retention is critical to the defense of any construction case or any case for that matter; most times earlier is better.
2. Critical considerations of consultant/expert retention dealing with areas of expertise/geography/overuse and ramifications of all the decisions made by the litigation defense team in trying to have the case fit the right expert(s).
3. The effect on the professional activities of architectural and engineering firms that also act as forensic witnesses and how to find the right balance between “real” design work and forensic work as well as having the insured act as the in-house expert and how this might favorably effect a firm’s E&O insurance rates on a going forward basis.
Session 4 - National - Managing and Defending Catastrophic Claims in the Face of Adverse Media Exposure
Cindy Hunter, Hartford Global Specialty
Alicia Kennon, Wood Smith Henning & Berman LLP
Moira Malany, Network Adjusters, Inc.
Mark Shifton, Gfeller Laurie LLP
Emma Tortorici, AmTrust Financial Services
Managing and defending catastrophic bodily injury and property damage claims in the construction setting is often accompanied by its own unique set of challenges as such claims can generate extensive adverse publicity and media exposure. Additionally, negative media attention may implicate an insured’s long-term interests beyond resolving the instant claim, which, at times, may put the interests of insurers and their insureds at odds. This session will explore best practices for claims personnel, outside counsel, and risk managers when handling claims that have generated adverse media exposure in order to protect both the insured’s and insurer’s exposure.
1. Pre-crisis management planning should be done collaboratively, and in deliberate fashion, before a crisis develops. All stakeholders (an insured’s upper management, in-house counsel, insurers, defense counsel, and public relations experts) should be involved, and a protocol should be put in place before a crisis develops.
2. Outside counsel plays an important role in managing and mitigating public relations disasters. They are likely to be the first point of contact with the media, and may be able to set the tone for media coverage, and they are best-situated to keep the insurer, insured, and public relations experts informed as to the relevant issues, which will allow the public relations team to develop a long-term strategy.
3. When facing an adverse public relations event, insurers and outside counsel should seek out and understand an insured’s true goals and motivations, so that any divergent interests between the insurer and insured may be recognized and dealt with openly early on, before the public relations strategy has been committed down a particular path.
Session 4 - National - The Future of Infrastructure: Walls, Bridges, Tunnels, Airports and Roads
Glenn Dienstag, Aon Construction Services Group
Joe Duncan, Clark, May, Price, Lawley, Duncan & Paul LLC
Terence Kadlec, MC Consultants, Inc.
J. Kevin Moore, Bold, Polisner, Maddow, Nelson & Judson
From roadways, bridges, airports, walls, and more, over the next decade, spending on infrastructure will hit record levels. Unique issues are already emerging from this focused growth that translates into complex claims. This panel will dissect the emerging issues, obstacles for resolution, unresolved cases, authority, and policy concerns in this interactive panel discussion.
1. As with many other areas of the current administration, President Trump has set into a motion a plan to reduce the size and footprint of the federal government’s role in infrastructure programs. Ultimately, the aim is to shift responsibility for such items to the private sector with state and local governments being responsible for funding projects.
2. In 2017, American Society of Civil Engineers gave American Infrastructure a grade of “D+” in regard to its condition, meaning that most projects are “Poor, at risk”. There are a number of major examples of the failures of infrastructure elements across the country, and the governmental agencies have generally enjoyed some level of immunity or limited statutory damages for failure of such items.
3. Where states and municipalities enjoyed complete or limited immunity for failures of items in this regard, carriers and insureds should expect that private entity will not have such a luxury and must be able to respond to a much larger spectrum of claims, including catastrophic losses that affect entire communities or lines of business.
Session 4 - Southeast - Extrapolation: Projecting Defects and Damages Based on Limited Testing
Robert H. de Flesco, Cole, Scott & Kissane, P.A.
Susie Ferguson, ACIG Insurance Company
Michael Hinojosa, National Claim Services LLC
Marc Shortino, Gartner + Bloom PC
How much testing is enough? Which randomization protocols, sample sizes, and methodologies will survive a Daubert or Frye challenge without breaking the claimants’ bank and allow claimants to extrapolate the existence of defects and extent of damages over the entire project? These emerging issues befuddle jurists, practitioners, and insurers alike, particularly in the world of condominium defect claims. The session will focus on the current state of case law in various jurisdictions and strategies for attacking the extrapolated damage model during pre-trial motion practice and at trial.
1. Understand the current legal landscape and risks associated with extrapolation of damages based on a small sample size.
2. Understand legal defenses and opposition to samples sizes and methods.
3. Understand insurance evaluations for reserves and estimating exposure based on extrapolation.
Session 4 - Southeast - Navigating the Settlement Agreement
Cynthia Arce , Liberty Mutual
Drew Butler, Richardson Plowden & Robinson, P.A.
Lorri Hoffman, AFICS
Sarah Wetmore Butler, Copeland, Stair, Valz & Lovell, LLP
A settlement amount has been agreed upon among the parties and you assume it’s smooth sailing toward closing the file. However, be wary, because you haven’t reached safe harbor yet. Settlement agreements can create ongoing difficulties as litigants battle over confidentiality, non-disparagement clauses, tolling agreements, payment requirements, indemnity terms and more. This session will cover the basics of the settlement agreement and then steer into the more difficult clauses that often can hold up a settlement. Speakers will share their experiences about what to look for, what to avoid, and what to include in a settlement agreement.
1. Understand the basics of a well-crafted settlement agreement.
2. Evaluate terms and conditions that might throw a settlement off course.
3. Identify issues that arisse when drafting the terms of the written agreement and discuss solutions.
Session 4 - Texas - Don't Mess with Texas: Unique Coverage, Liability and Venue Issues in the Lone Star State
Alicia Curran, Cozen O’Connor
William Deragon, Old Republic Contractors Insurance Group
Michael Rodriguez, Tokio Marine HCC
Jay Sever, Phelps Dunbar
Cynthia Tarle, Tarle Law
Texas is the second largest state by both area and population. Construction is booming and the volume of construction claims is escalating. The panel will address coverage and liability issues that are unique to Texas and must be understood to effectively handle Texas construction claims and litigation. The panel also will discuss important venue issues presented by the 254 counties in Texas.
1. The application of the Anti-indemnity statute for construction contracts is complex and requires a close analysis of the contract to the statute, including being aware of exceptions and the impact the statute may have on the exposure of your client.
2. Venue in a state with 254 counties, some of which have been designated as “judicial hellholes” requires careful analysis of not only the law, but the potential implications of the jurisdiction and jury pool upon your litigation strategy.
3. The complexity of insurance coverage weaves into and impacts construction litigation from multiple angles, including the interpretation and application of additional insured endorsements, the impact of inadequate pleadings, and the effect of tenders, as well as allocation and contribution disputes.
Session 4 - West - Excess v. Primary: Untold Stories and Lessons Learned
Sherrianne Hanavan, Catalina U.S. Insurance Services
John Macy, Self Employed
Patrick Mendes, Tyson & Mendes LLP
Raymond Weisse, Ascot Group
A high exposure construction claim provides the backdrop for this discussion of the complex dynamics between primary and excess insurers. Seasoned industry professionals will share untold stories and lessons learned about the inherent conflict between primary and excess liability insurers. Specific areas of discussion will include choice of counsel, allocation of costs, responding to settlement demands, retained counsel’s reporting responsibility, duties among insurers and insured, coordination of trial tactics, and outside the box approaches to addressing the diverging interests between carriers and clients. The session also will highlight the insured’s role in the process and how effective communication techniques can prevent many common pitfalls.
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Premier Session 2 - How to Survive Litigating a Construction Claim in a Judicial Hell Hole
Lawrence Beemer, Tokio Marine HCC
Marissa Beyers, Trial Behavior Consulting
Carolyn Crawford, Nationwide Insurance Company
Thomas Mannion, Lewis Brisbois Bisgaard & Smith, LLP
Kevin Smith, Wood Smith Henning & Berman LLP
Trial of a construction case in a judicial hellhole raises a host of issues and can potentially increase the damages awarded if not handled properly. This panel will explore the differences between a case venued in a hellhole and those venued elsewhere and how venue affects all aspects of handling the case including experts, testimony, litigation strategies, indemnity issues, jury selection, and whether or not to take the case to trial.
1. Early identification of high risk cases and having the proper team in place is critical to a successful resolution.
2. Developing a game plan agreed to between the client, excess insurers, primary insurer, and defense counsel is essential to a settlement and a successful defense.
3, In the event your case goes to trial jury research (e.g. mock trials), effective trial themes and focused jury de- selection is necessary to increases your chances of a favorable outcome.
Session 5 - National - Fifty Shades of Mediation: Trial vs. Arbitration - How Each Require Differing Approaches for a Successful Mediation
Stephen Gross, Fowler White Burnett PA
Brendan Moynihan, STO Building Group
Brenda Radmacher, Akerman LLP
Lisa Unger , Self Employed
The most influential guiding factor in mediation is an assessment by all participants of what the result may be if the case is not resolved shy of trial or arbitration. These two primary forums for litigating construction defect cases can require substantially different approaches when evaluating risk, negotiating, and concluding a successful mediation. With the ever-increasing number of cases being arbitrated, developing differing forum-influenced approaches to mediation is a key skill for all mediation participants. This panel will address these issues from the perspective of the mediator, defense counsel, coverage counsel, and the claims professional.
1. Have an understanding of the different considerations needed to evaluate whether to arbitrate or try a complex construction case.
2. Be able to determine the different approaches to mediation when a case is going to arbitration versus trial.
3. Have the ability to accurately assess what type of mediator you will need for a case that is heading toward arbitration as opposed to trial.
Session 5 - National - I Rip, You Tear, the Carrier Pays? Insurance Coverage for Rip and Tear Expenses
Mark Boyle, Boyle Leonard & Anderson, PA
Ryan Coons, Amerisure Mutual Insurance Company
Mary Rowe, Markel Service, Incorporated
Robert Witmeyer, Cooper & Scully, P.C.
Let's talk about the availability of insurance coverage for rip and tear expenses in construction defect cases. The session panelists will focus on recent cases from around the country that have analyzed insurance coverage for these expenses in different ways as well as issues that have yet to be resolved by the courts.
1. Plain Language Rule: If there is covered property damage before the rip and tear, the policy provides insurance coverage for the associated rip and tear expenses. If there is no covered property damage, the policy does not provide insurance coverage for the associated rip and tear expenses.
2. Courts do not always following the Plain Language Rule and have awarded rip and tear expenses even when there is no covered property damage.
3. In the future, courts will have to confront multiple issues, including: (1) whether rip and tear can be an occurrence; (2) which policy is triggered; (3) whether the “expected or intended injury” exclusion applies; and (4) whether insurers attempt to eliminate rip and tear expenses.
Session 5 - National - Virtual Technology Solutions for Forensic Construction Litigation
Stephen Buonpane, Chubb
Daniel Melcher, Focus Forensics
Stuart C. Poage, Pennington P.A.
Paul Stuart, Alliant Insurance Services, Inc.
Experts will showcase the impact and use of modern technology including drones, 3D scanners, and computer animations in the preventative pre-suit construction industry and post-accident construction claims analysis and litigation. The session will explore the use of these technologies at mediation and trial as well as how carriers who underwrite insureds using these technologies are affected.
1. Wow! There are some really, really cool tools which can be used in all types of construction cases.
2. The cost of utilizing available technology likely is far less expensive than previous years and its use creates enormous long-term savings for the insurance company and the insured.
3. Technology devices have a wide application in all phases of construction ranging from the design and underwriting stage all the way through post accident litigation.
No Learning Objectives Available