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NOVEMBER 2022 FURTHERING THE HIGHEST STANDARDS OF CLAIMS AND LITIGATION MANAGEMENT Is the Best Talent Passing You By? Avoiding the Pitfalls of the Litigation Business The Art of Preservation A Post-Hurricane Ian Look at the NFIP and the Private Flood Insurance MarketplaceWorld-class. Global reach. 800.580.3228 rimkus.com YOU HAVE QUESTIONS. WE PROVIDE ANSWERS. WHAT HAPPENED? WITH SO MUCH AT STAKE, YOU NEED TO KNOW Product malfunctions and component failures can cause serious injury and fatal accidents which often leads to complex questions. Rimkus forensic engineers and scientists can respond with a multi-disciplined approach to analyzing the entire product life cycle from product design to end use to determine what happened and why. With extensive experience in failure analysis and testing, computer modeling, industry standards, and regulatory compliance, our experts can help answer your questions about product failures, equipment malfunctions, and material defects. If you’re facing a complex forensic challenge of any kind, count on us to uncover the facts.THECLM.ORG/MAGAZINE CLM MAGAZINE 3 CONTENTS CLM MAGAZINE NOVEMBER 2022 16 AN INDUSTRY UNDER WATER? A post-Hurricane Ian look at the NFIP and the private flood insurance marketplace 20 STAYING COMPETITIVE IN THE CHALLENGING LABOR MARKET Is the best talent passing you by? 24 AVOIDING THE PITFALLS OF THE LITIGATION BUSINESS Playing games is not a strategy, so why do we persist? 28 THE ROUNDABOUT Changing the narrative in transportation-related losses 36 THANK YOU, CLAIMS COLLEGE VOLUNTEERS Spotlighting those who help make Claims College a success 38 CAREERS Why you might be striking out in a hot job market 39 BETWEEN THE LINES Subrogation trends over the last several years 40 NATIONAL News and verdicts that affect you from across the country 42 VOICES Getting to know Arrowpoint Capital’s Ronald Mazariegos FEATURES 4 FRONT DESK Celebrate every day 6 EXPOSURE A good cause in Florida 8 THE ART OF PRESERVATION High-tech innovations for memorializing an accident scene 10 HARNESSING THE POWER OF ARTIFICIAL INTELLIGENCE Navigating the complex landscape of timed demands 12 THE PFAS POLLUTION PROBLEM New regulations lead to new liabilities 14 THREE KEYS TO MITIGATE WORKERS’ COMPENSATION EXPOSURE How surveillance, witnesses, and vocational rehabilitation can help cut costs COLUMNS AROUND THE CLM 16 24 8 12 36 424 CLM MAGAZINE NOVEMBER 2022 VP OF CONTENT Eric Gilkey SENIOR MANAGING EDITOR Phil Gusman CONTRIBUTING EDITOR Fran Clark ART DIRECTOR/ PUBLISHING OPERATIONS MANAGER Jason T. Williams EDITORIAL QUESTIONS Eric Gilkey eric.gilkey@TheCLM.org CHIEF EXECUTIVE OFFICER Ronna Ruppelt VP PARTNERSHIPS Jeremy Campbell ACCOUNT EXECUTIVE Megan Josd ADVERTISING QUESTIONS Jeremy Campbell jeremy.campbell@TheCLM.org 513-377-7228 NOVEMBER 2022 • ISSUE 11 • VOL. 6 REPRINTS For reprints and licensing please contact Jeremy Campbell at jeremy.campbell@TheCLM.org or 513-377-7228. CLM Magazine is published monthly and covers news and topics of interest to insurance claims, risk, and litigation management professionals. Copyright © 2022 by the CLM. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission of the CLM. The views expressed in the articles are solely those of the authors or those interviewed and do not necessarily reflect the views or opinions of CLM or the companies in which the authors are employed. A publication of I’ve been traveling a lot lately, so last weekend I decided to sit outside and enjoy the warm autumn sun. As I relaxed and listened to the sound of the birds chirping, I was reminded that, very often, the good in our lives is quite simple and usually nearby. It prompted me to take a few moments to reflect and appreciate all the good in my life. We live in a fast-paced world filled with distractions, so it’s easy for those good things to go unnoticed. I find a simple gratitude practice helps keep me mindful, even when life gets hectic. It’s often as simple as pausing to acknowledge a positive experience or focus on the people I’m grateful for. While practicing gratitude is great, I believe sharing your gratitude is icing on the cake. I love this quote from William Arthur Ward: “Feeling gratitude and not expressing it is like wrapping a present and not giving it.” So, I want to take this opportunity to share my gratitude for my CLM family. I’m more than a year into this role, and every day I still feel like I have hit the lottery because I am surrounded by the most amazing people. CLM is such a vibrant community, and I am fortunate to be part of it. Thank you for being a member whether this is your first year or your 15th. You power CLM with your passion and ideas. I also want to thank our hardworking volunteers who write articles, present at conferences, lead communities, manage chapters, and serve as board members, deans, chancellors, or faculty. CLM could not exist without your dedication and passion. Thank you for all that you do! Finally, I want to thank the CLM staff. I’m so proud of the work you do to build upon the spirit of CLM and innovate new ways for our community to connect, collaborate, and learn. (Hint: Keep an eye out for more information on the exciting new tools and programs they are working on, coming soon!) Again, thank you for being a member of our community. You make it a pleasure to come to work each day. Wishing you and your family a memorable Thanksgiving. May it be a beautiful reminder of the most wonderful things in your life. All the best – Ronna Ruppelt CEO ronna.ruppelt@TheCLM.org LinkedIn.com/in/ronnaruppelt Celebrate Every Day 2022 AWARDS FOR PUBLICATION EXCELLENCE WINNER CLM (ISSN XXXX-XXXX) is published monthly 12 times a year by CLM, a member company of The Institutes, 2 South University Drive, Suite 100, Plantation, FL 33324. Application to mail at Periodical Postage Prices is Pending at Plantation, FL, and at additional mailing offices. Postmaster: Send address changes to CLM, 2 South University Drive, Suite 100, Plantation, FL 33324. Allow four weeks completion of changes. Advertising and editorial deadline is the first of each month preceding issue date. FRONT DESKReady. Set. Future. MARCH 29-31 | TAMPA DECEMBER 7 AT NOON ET REGISTRATION OPENS #CLM2023 AC23 EMBRACE A FUTURE VIEW OF CLAIMS AND LITIGATION ISSUES AT THE ANNUAL CONFERENCE WITH YOUR CLM COMMUNITY.EXPOSUREA GOOD CAUSE IN FLORIDA In this aerial view, vehicles drive over the temporarily repaired Sanibel Island causeway on Oct. 20, 2022, less than three weeks after Hurricane Ian destroyed it on Sept. 28, 2022. The bridge reopened ahead of schedule as the area continues to rebuild after the massive hurricane caused between $42-$57 billion in insured losses, according to risk modeling firm Verisk. PHOTO: JOE RAEDLE/GETTY IMAGES8 CLM MAGAZINE NOVEMBER 2022 TECHNOLOGY P reserving an accident scene is the first priority following a loss. Until recently, forensic engineers had to follow painstaking procedures to perform a complete inspection. Upon arrival at the scene, the engineer had to take numerous photos and measurements— as precise as possible with rudimentary tools like a measuring tape and the naked eye—and manually sketch out the scene by hand. The process is known as preserving, or memorializing, the scene. This site documentation enables forensic engineers to thoroughly reconstruct the accident to determine causation. Based on a forensic investigation of the scene and a review of documents and testimony, causation can then be categorized into three scenarios: design limitations, human error, or environmental factors. In the weeks and months following an accident and the period leading up to a trial, the evidence may change due to environmental or other factors, and the memory of what exactly occurred may fade. Preserving the scene can solve this problem and can prove crucial in many cases. In civil cases, an accusation against a defendant must be substantiated and proven within a reasonable degree of (engineering) certainty. Therefore, the preservation or handling of evidence can be a major The Art of Preservation High-Tech Innovations for Memorializing an Accident Scene By Jonathan P. Walter Jonathan P. Walter, Ph.D., P.E., is a biomechanical engineer and accident reconstructionist at CED Technologies, Inc. jwalter@cedtechnologies.comTHECLM.ORG/MAGAZINE CLM MAGAZINE 9 factor for the trial of cases. Enter the latest generation of high- tech tools that are now available and well accepted in legal proceedings. High- resolution 3D laser scanners, rapid light detection and ranging (lidar) scanning, advanced photogrammetry, and GPS- enabled photogrammetry using drones and phones are completely changing the landscape, providing near fool-proof data that serves as indisputable evidence. These technologies help experts build accurate demonstrative evidence without the need to have a graphic artist paint a picture. The usefulness of these tools is measured by how efficiently and accurately they can capture an accident scene or evidence. 3D LASER SCANNERS Stationary 3D laser scanners, such as those made by FARO or Leica, can map out everything in an entire area with millimeter accuracy. From its perch on a tripod, a 3D laser can scan millions of individual data points, capturing everything in a 360-degree line of sight scan at a resolution of one-to- two millimeters. Using proprietary software, each scan is set up and processed to create a demonstrative 3D model. Multiple scans can be stitched together to create a final rendering of a complete scene or building. The scanner can be utilized in many accident scenes, including roadway collisions, construction mishaps, building fires, and industrial equipment accidents. The panoramic photographs and precisely measured models produced by stationary 3D laser scanners enable engineers to create incredibly accurate visuals, simulations, and animations that can be tailored to any type of investigation. For this reason, this laser scanner has been dubbed the “ultimate documenting tool” for court proceedings so that juries can easily visualize an accident. They also enable engineers to create 3D physics-based models to demonstrate how an accident could have, or could not have, occurred. DRONES In cases where larger scenes need to be captured, flying drones, or UAVs, that are outfitted with high-resolution cameras are likely to be the ideal technique instead of stationary 3D laser scanners. Drones employ photogrammetry, which is the use of photography in surveying and mapping to measure distances between objects. When a drone flies over a scene, hundreds of photographs are captured with high-quality cameras in a matter of minutes. Each photograph is tagged with GPS coordinates and altitude to orient the photograph in 3D space. These photos are then combined to create an accurate geometrical layout of an area with elevation and 3D object profiles. In comparison, 3D laser scanners are stationary and take time to collect all data within one area, while drones collect data over a much larger area quickly and efficiently. Drones are commonly used for roof repair estimates and inspections, particularly by civil engineers in Florida and other southeastern states where hurricanes and tropical storms wreak frequent havoc. Property insurance rates have skyrocketed in those regions in recent years due to the massive number of storm damage claims. Inspections via drone are quick, efficient, and provide accurate measurements for large areas. LIDAR TECHNOLOGY Another helpful tool for capturing scenes is lidar technology, especially for situations in which drones cannot be flown but rapid measurement is desired. Lidar technology also employs the use of lasers to measure objects, but it can be deployed on a movable device, such as a phone or tablet. These devices also utilize GPS-tagged photographs to accurately determine where the device is in 3D space. The photographs and lidar measurements are combined using photogrammetry to create 3D models of scenes or evidence. The fidelity of recreated views using lidar is less than those taken by the stationary 3D laser scanners, but lidar-enabled devices allow investigators to quickly walk around a scene or a piece of evidence to capture overall dimensions. For accident reconstruction purposes, it is commonly used to make 3D models of vehicles and layouts of buildings that can be easily shared and used later for demonstrative evidence. A camera has the advantage of being handheld and can, therefore, be used in tight spots where the stationary 3D laser scanner, which must be mounted on a tripod, cannot. Thus, a GPS-tagged camera with lidar is arguably the most “user friendly” tool to have on hand. The usefulness and acceptance of these scene-preservation tools have been well documented. In addition to the 3D scanning tools, scene documentation and accident reconstruction can be performed using other modern technologies such as body-worn cameras used by law enforcement, black-box data recorders on standard and large commercial vehicles, video captured by advanced AI-assisted driving technologies, dash-mounted cameras, and various data sources such GPS trackers, infotainment systems, traffic signal timings, and phone data. In combination, these technologies provide many tools to reconstruct an accident scene and assist with claims analyses more effectively than ever before. K High-resolution 3D laser scanners, rapid light detection and ranging (lidar) scanning, advanced photogrammetry, and GPS-enabled photogrammetry using drones and phones are completely changing the landscape.Next >