Leading Out Loud: Construction

See what our two experts have to say about construction and litigation trends and challenges.

September 22, 2022 Photo

How is technology changing the investigation process? What trends in construction litigation have emerged? And finally, what are some of the biggest challenges facing the construction industry today? See what our two experts have to say.

We have seen some impressive advances recently in the technologies used in forensic investigations. How have organizations refined these technologies to conduct even more thorough investigations and better serve clients?

PETE FOWLER, PETE FOWLER CONSTRUCTION: This question almost makes my head explode, because in addition to my B.S. in construction management, I have a minor in information systems, and I spent much of the last 25 years building a magical proprietary information system where everything is connected to everything, with the specific intent of making it easier for us to serve clients better, faster, and cheaper. For example, we set up every project in our cloud-based system, conduct onsite investigations using a smart phone application we built, upload high-resolution photos, and make them available to clients via password-protected client access, along with every other document we receive or create. All data integrates into our analysis and reporting seamlessly, and it’s all saved forever, for no additional cost to clients. Along this same line, I recently co-authored an article in Construction Claims Magazine called “Information Overload: In Construction, New Data and Technologies Are Everywhere. How We Use and Process It All Matters.” We address many of the technologies we are seeing in claims, including building information modeling (BIM) and other design tools, proprietary and commercial file and project management applications, and a multitude of imaging technologies, including enhanced PDFs, Matterport, and drones.

NATE MACINTYRE, MC CONSULTANTS: Over the past few years, MC Consultants has been utilizing a wide range of technologies to conduct more thorough investigations. One such technology is reality capture technology (MC Virtual-360), which has the ability to provide as-built documentation of buildings and environments to determine or verify existing conditions, before and after easement construction projects, during the course of construction, and during the construction claims process. As opposed to the old way of using point-and-shoot photography and technical notes, we can now deliver survey-grade data that can be viewed through a secure, online viewing platform or through offline, categorized, and geolocated imagery. For example, we can prepare a drone-based 3D model and attach geo-located photographs to the model, which means no more trying to figure out where a particular photograph was taken within a building.

Have there been any surprises with the investigative tools and technologies developed—perhaps a technology or technique that is yielding unexpected benefits in forensic investigations?

NATE MACINTYRE, MC CONSULTANTS: Yes, here is a recent example: I recently completed an investigation of a water loss at a large, multi-family residential project. My investigation time was reduced significantly due to the general contractor’s use of artificial intelligence (AI) and reality capture technology where a 360-degree camera was used to capture and document each phase of the construction process. The images were mapped to the floorplan for a 360-degree virtual tour experience of the jobsite and a proprietary AI engine was then used to automatically organize and geo-locate the images, by date and location. With the use of this technology, I was able to look back through the walls to determine the source of the water loss and prepare a repair recommendation without needing to conduct destructive testing or disrupt occupants.

PETE FOWLER, PETE FOWLER CONSTRUCTION: Hands down, Matterport is the surprise winner in construction claims. They say their technology creates “...an immersive digital twin.” It is a proprietary camera+software combination that gained popularity in the real-estate industry for allowing creation of virtual walk-throughs online. For construction, and especially claims, Matterport is a tool to document the conditions of a property at a given point in time. Of course, the camera is expensive, and it requires specialized training and a subscription, so widespread use is not likely. For projects that are halted for some reason, Matterport is perfect, because we can capture almost every inch of a building’s interior at the rate of approximately 1,000 square feet per hour. This is far faster than a thorough forensic investigation can be executed, and the ability to “walk-through” afterward allows us to gain insights that we might miss by only taking photos.

Has there been a shift in types of construction lawsuits you are seeing this year, and, if so, what is driving that shift?

PETE FOWLER, PETE FOWLER CONSTRUCTION: Unfortunately, we are seeing a lot more injury claims; in particular, those that have resulted in death. It’s tragic. Often, these claims come from less-sophisticated parties, including unlicensed contractors, and many of the victims are undocumented immigrants. Of course, we never know if our project experience is related to general market trends or to our specific expertise or niche in the marketplace.

NATE MACINTYRE, MC CONSULTANTS: Yes, other MC forensic consultants and I have seen an increase in unfinished or incomplete construction lawsuits this year. Contractors have been struggling with labor shortages, supply chain issues, and communication failures. Quite often, the claim starts with a contractor not being paid timely by a client who has unmet or non-substantiated expectations. The contractor then pursues payment through the right-to-lien process or litigation. The client/owner then pursues a construction defect counterclaim.

Given some of the challenges facing the construction industry today, what is the best advice to construction firms for avoiding claims and litigation in today’s landscape?

NATE MACINTYRE, MC CONSULTANTS: I recommend all construction firms have professionally written and well-defined contracts in place for every project and all interested parties (including all product manufacturers). Retain legal counsel to assist with drafting your contracts. Ensure everybody working on a project is properly licensed and insured. Overcommunicate when it comes to safety, the schedule, budget, manpower, product lead times, construction phase sequencing, etc. Commit to using technology, or an industry partner that can provide the following services: 360-degree camera reality capture, aerial drones (photograph and map the exterior of all projects throughout construction), and 3D laser scanning of existing surrounding structures before, during, and after construction (this allows for a deviation analysis if something goes wrong).

PETE FOWLER, PETE FOWLER CONSTRUCTION: The ABC’s of risk management: Avoid the most dangerous situations. Be really good at what you do. Cover your assets with excellent contracts by smart lawyers and appropriate insurance coverage from smart brokers. Further, focus on high-risk building elements, especially any system that carries or should manage water in, around, or through the building. Apply tried-and-true quality management and continuous process improvement tools, including Lean.

Nate MacIntyre is a forensic building science expert, licensed general contractor (OR, WA, AK, ID), and regional director (PNW & HI) at MC Consultants, Inc. nate.macintyre@mcconsultants.com 

Pete Fowler is a construction consultant, professional cost estimator, and president and chief quality officer of Pete Fowler Construction, a licensed general building contractor in California, Nevada, and Oregon. pf@petefowler.com 


About The Authors
Sponsored Content
Daily Claims News
  Powered by Claims Pages
About The Community

CLM’s Construction Community provides a forum for construction-related claims and litigation professionals to exchange ideas and share best practices. The community identifies trends and creates needed resources to meet the needs of the industry.

Community Events
No community events