Schedule/Sessions

Breakfast

Keynote Speaker

• Speakers:

• Elisa Gaudet, Two Good Rounds-NYC

SESSION 1 - Presentation A: Expert Strategies for Managing Construction Defect Litigation

• Speakers:

• Anthony Antonellis, Sloane & Walsh LLP

• Douglas DeSaulnier, Apex Claims

• Tom Mierzwa, Envista Forensics

This seminar will discuss the various aspects of investigation and litigation management performed when defending construction defect claims. With the use of a real life case study scenario, our experienced panel of legal and insurance professionals will discuss:
  Methods for setting reserves and proceeding appropriately under an eroding limits policy Developing the appropriate defense strategy for your client Strategies for selecting your team of experts The interplay between the General Contractor’s and subcontractor’s Commercial General Liability (CGL) policies and the Architect’s/Engineer’s Professional Liability (PL) policies to apportion responsibility.

SESSION 1 - Presentation B: Building Information Modeling

• Speakers:

• Andrew Ferguson, Coughlin Betke LLP

• Brittany Giel, Whiting-Turner

• Mark Kilgore, Probe Forensic Engineering

The panel discussion will focus on the end game of litigation and demonstrate how the contemporary process of building information modeling (BIM) can highlight a day in the life of the construction project.  The Panel includes three different perspectives:  Virtual Design and Construction (VDC) expert, engineer and construction professional and legal counsel, all who bring decades of experience to the table. Traditional building design has typically relied upon two-dimensional plans drawn up on paper.  In contrast, BIM uses a three dimensional database to not only express physical dimensions of building geometry but also time and cost.

Building Information Modeling is an interface for collaboration. Participants in a project, including: design professionals, general contractors, sub-contractors, suppliers and owners are responsible, dependent on the contractual language, for contributing to a federated model that acts as a repository for all of the information that is required for the design and construction of the project. At the conclusion of the project, this same information can also be utilized downstream during Operations and Maintenance.

BIM is currently in use world-wide and is already revolutionizing construction management.  This presentation intends to explain what BIM is, describe how it is used in construction and explore its role in litigation as a potential resource for discovery and evidence. 
 

SESSION 1 - Presentation C: Top Ten Things that Keep Your Claims Professional Awake at Night

• Speakers:

• Valerie Garcia, Hall & Evans, L.L.C.

• Becky Karam, Installed Building Products

• Roy Leeds, Arthur J. Gallagher & Co.

• Michael Montgomery, Butler Weihmuller Katz Craig LLP

Does your outside counsel do things that keep you awake at night?  This presentation will discuss the top ten things that adjusters and claims professionals cite as the most annoying things their outside counsel do on a regular basis.  The panel will also provide tips to both claims professionals and counsel as to how best to avoid these pitfalls and give tips on best practices to ensure that the claims professional has the best working relationship possible with outside counsel.  The program will also provide hypotheticals and promote interactive discussion as to how best to apply real world dynamics to real world problems facing the litigation partnership.  Participants will walk away from the presentation with a better understanding of how best to communicate with each other, how best to avoid common pitfalls, and strategies for dealing with things that otherwise cause the relationship between the outside counsel and claims professional to crumble.

SESSION 1 - Presentation D: Genetics: Could One's Genes Affect One's Risk of Developing a Toxic Tort Related Cancer?

• Speakers:

• Marc Gaffrey, Hoagland, Longo, Moran, Dunst & Doukas LLP

• David Steiger, Great American Custom Insurance Services, Inc.

• Cris Williams, Ramboll

There is evidence that one’s genetic makeup could affect the risk of developing a toxic tort related cancer. Scientists have found that in cases where multiple families were exposed to a toxic substance, in some families everyone developed a substance related cancer, whereas in other families no one developed such cancers. These distinct differences in family reactions have led scientists to conclude that the families affected must have a gene that increases their risk. This for example could also explain why some people who are exposed to asbestos, benzene or beryllium do not develop malignant mesothelioma, acute myelogenous leukemia or chronic beryllium disease respectively while others do.  Such findings could also lead scientists to find distinctions between cancers resulting from contact with toxic substances and cancers occurring regardless of toxic exposure. The purpose of this presentation will be to explore the latest research concerning genetics and toxic tort related cancer. It will further discuss the implications of such in the claims and litigation world.
 

Break

SESSION 2 - Presentation A: Green Construction, Coverage and the Future of LEED Litigation

• Speakers:

• Carrie L. Ciliberto, Self Employed

• Joe Duncan, Clark, May, Price, Lawley, Duncan & Paul LLC

• Andrew L. Klauber, Malapero Prisco & Klauber LLP

• Phyllis Modlin, Markel Service, Incorporated

• J. Kevin Moore, Bold, Polisner, Maddow, Nelson & Judson

In the 15 years since the LEED standards were introduced, green building has seen significant growth and adoption in a number of states and localities.  Currently, commercial buildings and some residential buildings can seek LEED Certification for their “green” status.  Many federal, state and local agencies require or reward LEED certification.  What happens thought when construction defects or simply the construction itself result in the project not attaining the sought-after LEED status?  This failure gives rise to a number of questions as to whether an occurrence exists in a building with no physical damage. If the actual construction does not meet the advertised representations, is it a construction defect, a breach of contract or a false advertising claim?  More importantly, does this failure constitute an “occurrence” that could be argued to deserve coverage from insurers.  This panel will present a discussion of these emerging issues along with how state and policy definitions of occurrence could be important as this topic develops and emerges.  Where possible, we will examine how states have treated these issues.
 

SESSION 2 - Presentation B: Insurance Services Office, Inc. Additional Insured Blanket Endorsements & Their Effect on the Construction Industry

• Speakers:

• Frank Armstrong, Willis Towers Watson

• Francine Giugno, Kelley Kronenberg

• David M. O'Connor, O'Connor & Associates, LLC

• Todd Schweitzer, Marsh

Most insurers have adopted the Insurance Services Office, Inc.’s 2013 revisions to the “additional insured” endorsements.  The new Additional Insured provisions more closely tie coverage to fault, but they also pose disconnect between familiar contract requirements and the available insurance protection.  The presentation will provide an overview of the distinctions between “insured contract” and “additional insured” status and will highlight the iterations of Insurance Services Office, Inc. and specific Additional Insured endorsements since 1985.  Attendees will be presented several specimen endorsements to analyze and discuss, with (1) the panelists discussing the positions of general and subcontractors; and (2) the audience is invited to comment on how the changes will affect investigation and reserving. 

SESSION 2 - Presentation C: Mediating the Multi-Party Construction Defect Case: Is There a Better Way?

• Speakers:

• Larry Beemer, Tokio Marine HCC

• Scott Rembold, Rembold Hirschman

• Sheri Roswell, Higgins, Hopkins, McLain & Roswell, LLC

• Kyle Summer, Amerisure Mutual Insurance Company

Adjusters, Attorneys, the Insured, as well as Claims and Risk Managers often bemoan the inefficiencies of the mediation process in multi-party construction defect cases.  The current system seems to promote inefficiencies that prevent the free exchange of information, co-operation amongst the many parties necessarily involved in the process, and the creative ability to resolve these expensive cases early.  This presentation will attempt to engender a discussion of proactive, positive alternative means to expedite the cost-effective resolution of complex Construction Defect claims through creative mediation and other dispute resolution practices.  The participants will also hear about and discuss suggested new and better ways to structure the process, to save time, money, and aggravation all around the mediation table.

SESSION 2 - Presentation D: How to Develop A National Defense to New Litigation Asbestos and Lung Cancer Paradigm

• Speakers:

• Michael Martell, Morrison Cohen LLP

• Ed Sluke, Chubb

• Kevin Young, Eckert, Seamans, Cherin & Mellott, LLC

Mass Toxic Tort, once a novelty, is now common place in the environmental, products and pharmaceutical arena.  Developing a national defense is an art.  A successful defense strategy requires, in fact demands, intimate cooperation among the insurer, the insured (company), national coordinating counsel and local counsel (individual states).  

This presentation uses, as a paradigm, the recent increased influx of lung cancer cases filed in the nation-wide asbestos litigation.  While asbestos litigation has been around in force since the late 1970s and early 1980s, within the last two years lung cancer cases, normally associated with smoking, are proliferating on asbestos dockets throughout the country.  

Our presentation uses this new development, in what is considered a “mature tort”, to demonstrate the coordination required among carriers, insured and counsel to develop a successful defense.  Our defense approach may be applied to any products liability, mass toxic tort cases (as well as other personal injury cases), whether isolated or national in scope. 
 

Break

SESSION 3 - Presentation A: Issues That Arise with Multiple Carriers and Multiple Deductibles

• Speakers:

• Elaine Fresch, Hawkins Parnell & Young, LLP

• Derrick Harris, Allianz Global Corporate & Specialty

• John Hayes, Hayes Law Firm

• Jacqueline Stein, Skane Mills

This panel will address the problem with complex construction litigation matters often triggering the defense obligation by multiple carriers. Coverage decisions are typically made early in a litigation matter. Oftentimes, the number and identity of plaintiffs gets revised as additional homeowners are added to or dismissed from the action. This can impact which insurance policies are triggered by the existing claims. Additionally, as the case and time progresses oftentimes one or more insurance policies may erode with coverage no longer available. These situations cause problems as new carriers may need to come on board midstream, while other originally participating carriers may no longer be participating. Clients also prefer to have the carrier with the lowest deductible as the defending carrier. Clients, however, often do not realize the intricacies of the policy language and the covered and excluded damages, nor the fact that the participating carriers have equitable subrogation rights which they may wish to pursue.
 

SESSION 3 - Presentation B: Avoid Liability Roulette: Top Ten Tips for Design Professionals and Contactors to Transfer Risk

• Speakers:

• Brian McGrath, Marsh

• Christopher O'Connell, Chubb

• Wendy Testa, Wilson Elser

• Brendan Winslow-Nason, Gordon Tilden Thomas Cordell LLP

An evaluation of evolving risks, traditional defenses, and innovative ways to approach and transfer risk in a climate of increased exposure to design professionals and contractors through significant changes in recent years.  The group will discuss its top ten tips to transfer risk (Letterman style) in an interactive casual format covering hot button topics including: (1) “Additional Insured: Sitting Pretty in the Shoes of a Named Insured;” (2) “Who am I? An additional Insured or an Indemnitee?;” (3) “Magic Language: the Key to Contractual Nirvana;” (4) “Hold Me Harmless may be Harmful but Limiting Liability is Not That Offensive Judge:” (5) “Drafter Beware: Contracting as a Team Effort;” (6) “Triple Duties Increase Odds to Win: You Owe Me Defense, Indemnification and Insurance Coverage;” (7) “Read the Fine Print: The Perils of Certificates of Insurance;” (8) “The Insurer Bears The Loss or Do They?: Waiver of Subrogation;” (9) “One Big Happy Family: Wrap-up Programs,” and (10) “When All Else Fails: Common Law Indemnity.”
 

SESSION 3 - Presentation D: Independent Counsel in Environmental/Toxic Tort Cases

• Speakers:

• Kirk Chamberlin, Chamberlin Keaster & Brockman LLP

• Matthew Moffett, Gray, Rust, St. Amand, Moffett & Brieske, LLP

• Lynn Moretti, Liberty Mutual

This presentation involves a panel discussion addressing how to gain control of defense counsel to achieve the most efficient, best result.  The first focus point is limiting the necessity for "independent" counsel.  Specifically, an insured’s right to independent counsel arises when the insurance carrier’s reservation of rights creates a conflict of interest for carrier-provided counsel.  An overly broad reservation of rights may trigger the “right” to independent counsel based on an issue that is irrelevant to the case.  We will discuss the benefits of a narrowly tailored reservation of rights letter, which may avoid the unnecessary appointment of independent counsel in environmental/toxic tort actions.  The second focus point is how to work proactively with counsel to achieve a result based upon an individualized plan rather than reactively based upon reports/status letters.

Networking Lunch