We were knocked down, but we got back up.
When COVID-19 caught the world—including the construction and insurance industries—off balance in early 2020, no person or industry was spared from the direct impacts. The insurance industry was forced to pivot, like everyone else; and, by extension, downstream effects reached the litigation and expert-witness fields that support that industry. From government shutdowns, shuttered construction sites, business interruption, travel restrictions, and new coverage questions, there was no shortage of uncertainty or questions levied upon the industry.
As 2021 arrived, the world was still dealing with the pandemic. However, we remained anxious to get it in the rearview mirror. Moreover, given the destructive impacts of the pandemic, the best way to discuss it—and the positives that came from it—is to generically refer to it and not call it by name.
Chalk it up as an industry disruptor—one of many our society has experienced both globally and domestically, including two world wars, economic depression and recession, and terrorist attacks. Disruptors have a way of changing what we perceive as “normal.” Although negative impacts from the pandemic are still being felt today, leaders are working to assure weary Americans and others around the globe that we’ve turned a corner on the pandemic with the vaccine rollout, phased re-openings, and the intent to return to normal, or the “new normal,” in 2021.
Foresight, not Hindsight
Due to unknowns surrounding the origin of the virus, its effects, the symptoms, preventative measures, and more, the early response to the pandemic was marred by confusion. Through 2020 and into 2021, the response to the pandemic has gotten better, but it is not perfect. The conversation has had to remain fluid because the situation was constantly changing.
The Centers for Disease Control (CDC) constantly updated its recommendations based on new information, and, thus, information was found to be outdated within hours, days, and minutes. As a result, skepticism emerged about how to manage—and move past—the pandemic. As 2020 ended, hope was on the horizon with the rollout of multiple vaccines to adults, while 2021 has its sights set on providing vaccines to younger folks.
Hope, according to the Oxford English Dictionary, is “a feeling of expectation and desire for a certain thing to happen.” Thus, we must pivot from hindsight, and consider an outlook on the future with foresight. Consider the roles of insurance professionals in risk management and/or underwriting: They forecast and evaluate risks with the identification of procedures to avoid or minimize their impact. Underwriters, the Oxford English Dictionary tells us, “sign and accept liability under (an insurance policy), thus guaranteeing payment in case loss or damage occurs,” and “accept (a liability or risk) under an insurance policy.”
As insurance professionals, litigators, and experts, we must consider such definitions as we plan and prepare for, and anticipate, the next disruptor. Let’s start by looking at the good we learned from the pandemic.
The Pandemic Had
Simply put, yes, there were positives that came out of the pandemic. We must dig deeper to see them, but they are there. The biggest positives that impacted insurance and construction came from embracing new and old technology, a renewed outlook on teamwork and collaboration, and a reminder that we are all equal as people. And those positive impacts will play a role in the future.
Embracing technology in insurance. The pandemic demonstrated our dependence and inherent reliance on, and our ever-growing need for, technology. Arguably, much of the technology used in construction litigation was not new or innovative, but it was certainly more prevalent, with videoconferencing becoming part of everyday business.
Claims professionals, builders, and litigators quickly adopted technology to carry out site inspections, investigations, depositions, mediations, settlement conferences, and more. Claims professionals’ prior reluctance to travel cross-country for mediations was moot in the virtual world; it was simply a click of the mouse. Field adjusters and expert witnesses embraced similar technology as a result of travel restrictions and social distancing. Live-streaming from an inspection with an expert team brought more eyes to the job site than before, creating a value-add for cases. Using drones to investigate the conditions at a job site became the norm. The industry went virtual, and, yes, there were a few virtual moments that went viral—jurors “forgetting” their video was livestreaming or an attorney having to admit, “I’m here live, I’m not a cat,” simply because he couldn’t remove his cat filter.
Direct impacts caused many industries, including construction, to repurpose existing technology to meet new and different pandemic-related needs. Pre-pandemic, we were talking about the use of technology, from 3-D imaging, to artificial intelligence, to drones, to wearables such as trackers. Now, that technology must be embraced on the job site and can be utilized in various forms that were never even thought of pre-pandemic.
Imagine construction workers on the job site using wearables to track their movements. Now, these wearables can be used on the job site for contact tracing when there is an exposure to the virus. It does not require shutting down the job site, testing all employees, and going through quarantine if you are able to quickly and easily identify who has been in close contact.
In a different example, artificial intelligence was becoming an emerging trend pre-pandemic. Now, we can use robotics on the job site to avoid exposure to a disease. This, again, prevents a job site from being shut down, avoids the need for testing employees, and avoids the need for quarantine. Contractors now can embrace this technology in the present to ensure that construction schedules stay on time and avoid the mass disruption caused by this unpredictable virus.
Adapting to technology both on the construction job site and in litigation is critical. In the early days of the pandemic (April 2020), the chief judge from the State of New York, Janet DiFiore, endorsed the “virtual” future. The chief judge stated, “We are committed to keeping our courts open to hear essential and emergency matters throughout this difficult period.” She continued with a forecast for the future, stating that “we have been discussing—with leaders of the tort, commercial, matrimonial, and criminal bar—how we can incrementally expand court access for those cases…through virtual operations and remote appearance.”
Virtual litigation has continued. Litigators praise both the cost savings compared to having experts and attorneys fly from all corners of the country to complete depositions, and also their increased availability without the need for travel time.
In April 2021, the endorsement of technology continued when the New Jersey Supreme Court unanimously found that holding grand jury trials during the pandemic were “constitutional,” noting “technological safeguards.” Adapting to virtual claims and litigation going forward is a necessity for the insurance industry, just like other industries are adapting emerging technologies.
Teamwork and collaboration in construction. Safety has always been an important focus on job sites, but it is typically trade specific in its execution. This pandemic has forced construction managers and trades to see the bigger picture and look at the overall well-being of everyone on-site. One employee could literally contaminate an entire project and cause a shutdown. Ensuring that the job site is safe requires teamwork and collaboration from all trades.
Regardless of one’s opinions about the virus, construction workers cannot let their personal feelings get in the way of the greater good. A construction project requires teamwork from numerous individuals from different trades and backgrounds. The project general contractor and superintendents must be educated in safety measures to prevent an outbreak. New safety meetings should be conducted to discuss not only job site safety measures that were regularly implemented pre-pandemic, but also safety protocols to protect against the disease. It is also imperative that safety protocols are enforced to ensure there are no further disruptions due to a failure to adhere to government safety guidelines.
The construction industry was rocked in 2020 with delays due to shutdowns, and it is critical that new delays are not happening due to preventative measures not being followed. Hopefully, the safety and sanitary protocols put in place to combat the pandemic will help prevent the spread of whatever comes next.
We are all people. In discussions concerning the professional impacts of the pandemic, whether it be with claims professionals, attorneys, experts, or a mediator, every individual can relay a story or moment when humanity was on display. Whether it be a contractor coming through the house, a dog jumping into view, or a child complaining about the speed of the wi-fi for their remote schooling experience, we have all had that experience when mute could not be hit quickly enough and the moment was shared with everyone on a video call. We also have our own stories of illness, death, fear, and frustration. We learned, perhaps remembered, that, through it all, even our adversaries are human. That’s a positive that must be embraced and retained.
While we are exposed to more information about each other through the pandemic protocols and the sharing that has been occurring, concerns have been raised about the constitutionality of certain response tactics. Constitutional rights have been discussed widely as a result of the pandemic and other current events. Concerns have been raised about temperature checks, questionnaires, and whether to allow entrance inside businesses or homes, and we are now also confronting whether there is a right to ask someone if they are vaccinated, and whether businesses should incentivize vaccinations amongst their teams.
Businesses have responsibilities to protect their employees, and adding such precautions can help slow the spread of the virus, though the implication has raised ethical questions. For instance, do you have the right to ask someone if they have the virus? If they have been exposed to the virus? Specifically, some companies (including those tied to the insurance industry) have implemented questionnaires to protect their interests. Asking such questions is socially responsible, but also walks a line with respect to privacy concerns.
Anticipating the Next Disruptor
Despite the confusion and uncertainty of 2020 and 2021, recent events have forced many sectors, including the insurance industry, to transform in many positive ways that have changed, and will change, our notion of what is normal. Our former normality is gone; we must accept this. However, we have expanded our capabilities and learned that the industry can, in fact, pivot in the face of unforeseen and unanticipated circumstances, in large part by harnessing the technology that many have been hesitant to embrace.
Normality may now include masks, greater use of personal protective equipment (PPE), and social distancing. The days of handshakes are already perceived to be a “blast from the past,” so only time will tell. Normality is forever different.
As for claims handling and investigation, moving forward there’s more uncertainty on the horizon. Being creative and flexible is an important skill when it comes to adapting to the present and preparing for the uncertain future. Consider the positives from technology, teamwork and collaboration, and empathy that have impacted our post-pandemic selves.
There is no doubt that 2020 changed our collective understanding of just how pervasive and expansive an impact any one disruptor may have. Prior to 2020, localized issues tied to catastrophes or similar events were in large part expected, and, therefore, planned around. Insurance, as with other industries, had business continuity and disaster recovery plans in place. But few had any playbook to address a nationwide shutdown, a global pandemic, and all that has happened over the past year.
We must prepare for the future—whether it is another pandemic or something else. We must be ready for a pivot, so as not to be caught off guard. And, as they say in baseball, we must “anticipate the breaking ball, but be ready for the fastball.” Collectively, we are defeating this pandemic, and we must plan for the next disruptor so that its response has fewer hurdles to clear.