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CONSTRUCTION CLAIMS BUILDING BETTER OUTCOMES FALL 2024 ISSUE 3 • VOLUME 9 BUILDING TOWARD 2025 THE VIRTUAL SHIFT NAVIGATING THE COMPLEXITY OF CONSTRUCTION CLAIMS Avoiding the Rip Currents When Managing Construction Claims RIDING ARBITRATION THE WAVE800.729.0355 mcconsultants.com One Company For All Your Consulting Needs GENERAL LIABILITY & CONSTRUCTION FORENSICS ONE FOR ALL Construction Related Claims Construction Defect, Job Site Accidents, Delay Claims, Heavy Equipment, NY Labor Law & Surety Claims Pre-Suit Claims Engineering Analysis, Construction Claims, General Liability Claims Accident Reconstruction Commercial Vehicles, Bicycles / Motorcycles Multi-Vehicle Collisions, Driver Factors Cause & Origin Investigations Investigate Claims, Evaluate Damages, Repair Specifications, Reconstruction Oversight Trip / Slip / Fall, Coefficient of Friction Analysis, Premises Security, Alcohol-Related Injuries Cost Estimating & Damages Analysis Cost of Repair, Repair Recommendations, Damages Analysis and Reasonableness of Costs Aerial Drone & MC Virtual-360 ™ High Resolution Aerial Photography / Videography 360 Camera / 3D Scanning, Room & Entire Structure Animation Services Animation Trial Exhibits and Litigation Support Videos 35 Premises Liability/ Security & Dram ShopFALL 2024 | 3 THE BONES FALL 2024 12 ON THE COVER RIDING THE ARBITRATION WAVE Avoiding the Rip Currents When Managing Construction Claims 20 BUILDING TOWARD 2025 Emerging Trends and Hot Issues in Construction 28 NAVIGATING THE COMPLEXITY OF CONSTRUCTION CLAIMS The Common Challenges and How to Overcome Them 24 THE VIRTUAL SHIFT Navigating the New Online Construction Litigation Landscape 32 NOTHING ELSE MATTERS The Key to Working With Experts 16 Florida It’s All on You 18 New York Water Hazard 4 Inside Counsel Happy to See You (or Wish You Were Here) 6 Ask the Expert Ghost Claims 8 Survey This I’ll Take the Express FEATURES STATE-BY-STATE DEPARTMENTS4 | CONSTRUCTION CLAIMS TheCLM.org/Magazine INSIDE COUNSEL HAPPY TO SEE YOU (OR WISH YOU WERE HERE) This issue of Construction Claims will be available at CLM’s 2024 Construction Conference in Huntington Beach, California, and there’s a fair chance that’s where I am as you’re reading this. If you’re also here at the largest gathering of professionals serving the construction claims and litigation management field, be sure to say hello. If you are a Construction Claims reader and have not attended a CLM Construction Conference, I highly recommend you consider making your way to 2025’s conference. All of the key claims and litigation topics you read about in these pages are discussed in depth both in informative roundtable sessions and at numerous networking events at the conference. Conference Co-Chair Phyllis Modlin, Markel, sums up this year’s conference nicely, stating, “We have a fantastic roster of speakers presenting on all aspects of construction litigation, from defects to bodily injury and coverage, along with venue-specific panels. This is the only conference that covers everything construction and provides exceptional networking opportunities for attendees to take their careers and knowledge to the next level.” CLM prides itself on bringing together claims professionals and legal professionals to discuss shared issues and challenges. Our publications strive to bring you both perspectives, collaboratively, in our articles. But, truly, there is no substitute for the face-to-face interactions professionals have at our conferences. And while CLM’s Annual Conference is a great venue to discuss a wide range of claims and litigation topics, if you are focused on the complexities and intricacies of the construction industry, then CLM’s Construction Conference is where you really need to be. As conference Co-chair Steve Henning, Wood Smith Henning & Berman, states, “Attendees can expect cutting-edge educational programming that encompasses emerging trends, practical insights, and vital information tailored for every stakeholder in the construction process. This is truly the premier event for those looking to enhance their knowledge and skills.” For those of you at the conference this year, I look forward to catching up and discussing article ideas. For everyone else, we wish you were here, and we hope to see you at next year’s conference! K PHIL GUSMAN Editor Phil.Gusman@theCLM.org FALL 2024 ISSUE 3 • VOLUME 9 Construction Claims is published four times a year and covers all aspects of construction-related claims, including construction defect, site accidents/injuries, insurance coverage, subcontractor issues, and new technologies that address both national and regional/ statewide audiences. Copyright© 2024 by the Claims and Litigation Management (CLM) Alliance. 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 Claims and Litigation Management (CLM) Alliance. The views expressed in the articles are solely those of the authors and do not necessarily reflect the views or opinions of the Claims and Litigation Management (CLM) Alliance or the companies in which the authors are employed. ART DIRECTOR/ PUBLISHING OPERATIONS MANAGER Jason T. Williams ADVERTISING Jeremy Campbell jeremy.campbell@TheCLM.org 513-377-7228 EDITORIAL SUBMISSIONS & QUESTIONS Phil Gusman at phil.gusman@TheCLM.org REPRINTS For reprints and licensing please contact Jeremy Campbell at jeremy.campbell@TheCLM.org or 513-377-7228. PRESIDENT Susan Wisbey-Smith VP PARTNERSHIPS Jeremy Campbell SENIOR ACCOUNT EXECUTIVE Laurel Metz ACCOUNT EXECUTIVE Megan Josd DIRECTOR OF CONTENT Phil Gusman ASSOCIATE EDITOR Angela Sabarese ASSISTANT EDITOR Fran ClarkDetermining the cause of an accident is no easy feat. It’s a science. Rimkus forensic engineers and consultants have decades of experience reconstructing accidents of all kinds to determine what happened and why. We also provide expert testimony at trial. If you’re facing a complex forensic challenge of any kind, count on us to uncover the facts. YOU HAVE QUESTIONS. WE PROVIDE ANSWERS. WHAT HAPPENED? WITH SO MUCH AT STAKE, YOU NEED TO KNOW rimkus.com800.580.3228Consultants. Experts. Innovators.rimkus.com6 | CONSTRUCTION CLAIMS TheCLM.org/Magazine ASK THE EXPERT QUESTION: Can you explain what ghost claims are and their significance? A: Fraudulent claims, or ghost claims, are becoming a significant concern as insurers have encountered an increase of suspicious incidents. These false claims range from staged automobile accidents to fabricated accidents on construction sites and unnecessary surgeries. Various professionals, including lawyers and doctors, are allegedly involved in these schemes. An increase in claims can affect different areas of business in a multitude of ways. Higher Premiums: When a company expe- riences a higher number of claims, its workers’ compensation insurance premiums may rise. Financial Strain: Smaller businesses are particularly affected by increased workers’ compensation claims as they lack the finan- cial cushion of larger companies. The surge in claims can strain budgets, making it challeng- ing for these businesses to allocate resources to other essential areas of operation. Productivity and Payroll: While workers’ compensation benefits cover some lost wages, employers may still owe additional wages not covered by insurance, creating a financial burden for businesses, especially if the injured employee is unable to return to work for an extended period. Safety Record and Reputation: Frequent claims can significantly diminish a company’s safety record, affecting its ability to bid for proj- ects or attract new employees. There are several services and solutions available in the industry to help businesses mitigate the occurrence and impact of fraudulent claims. Access Control Technology/Systems: Implementing an access control system can help control who enters and exits a facility, keep- ing a log of employees who have checked into the job site. This can help stop nonemployees from gaining access to the site or fabricating an on-site presence and claiming injury, as well as confirm the presence of employees on the site where they claim to have been injured. Risk Management: Developing a compre- hensive safety plan, known as a site safety plan (SSP), is crucial to controlling construction risk. An SSP should cover project, workers, public safety, and equipment placement, ensuring the site meets or exceeds safety standards. Safety professionals should design the plan and visit the site to verify its implementation, working with site staff to minimize hazards and meet regulatory safety program requirements. Safety/Loss Control Consultants: Safety consultants understand current regulations, laws, and violations; can perform OSHA inspec- tions; and provide recommendations to correct potential issues. They also serve as a qualified resource for continual training, improving work processes, reducing the probability of costly claims, and enhancing overall safety. Embedded On-Site Investigator: For large construction projects, an embedded investigator can work alongside on-site safety personnel to provide an extra layer of insur- ance against misbehavior and can respond immediately to incidents on the job site, securing and preserving evidence, recording witness statements, and photographing the scene to avoid evidence tampering. Immediate Response Investigations: Im- mediate response investigations involve deploy- ing investigators to the scene of an incident to secure and preserve evidence, record witness statements, and gather crucial information be- fore stories change or legal counsel is involved. Incident Mitigation: Strategies should in- clude surveillance conducted by licensed casu- alty adjusters and private investigators to gather evidence, locating claimants or witnesses, and conducting background investigations to obtain a detailed snapshot of the claimant’s history. Trial Preparation: This includes ensuring availability and communication with witnesses, insured individuals, experts, and independent medical exam doctors in a timely manner, as these can greatly impact the outcome of the case. K GHOST CLAIMS Jason Gudaitis Chief Operating Officer, Technical Services, Gallagher Bassett 2024/25 CONFERENCES & EVENTS LOCAL CHAPTER EVENTS HAPPEN YEAR-ROUND. LEARN MORE: theclm.org/events DATE CONFERENCE/EVENT LOCATION Sponsorship: sponsorship@theclm.org Speaking: programming@theclm.org DATES, LOCATIONS, TOPICS, AND EVENT NAMES SUBJECT TO CHANGE. DECEMBER 4 Focus Conference & Holiday Party NEW YORK CITY • Alternative Dispute Resolution • Extra-Contractual • Insurance Coverage • Insurance Fraud • Claims & Litigation Management FEBRUARY 11-12, 2025 Focus Conference ORLANDO • Work Comp • Casualty & Risk Management APRIL 8, 2025 CCO and CLM Advisory Board DALLAS Networking (invite only) APRIL 9 - 11, 2025 Annual Conference DALLAS JUNE 2025 Focus Conference TBD • Cyber • Diversity, Equity & Inclusion • Property • Transportation • Claims & Litigation Management SEPTEMBER 3, 2025 CCO Summit (invite only) BALTIMORE SEPTEMBER 3-5, 2025 Claims College BALTIMORE SEPTEMBER 17-19, 2025 Construction Conference SAN DIEGO OCTOBER 2025 Litigation Management Symposium CHICAGO (DATE TBD) OCTOBER 2025 Litigation Management Institute CHICAGO (DATE TBD) DECEMBER 2025 Focus Conference & Holiday Party TBD • Alternative Dispute Resolution • Extra-Contractual • Insurance Coverage • Insurance Fraud • Women’s Summit • Claims & Litigation Management REV.08292024 (DATE TBD) (DATE TBD)8 | CONSTRUCTION CLAIMS TheCLM.org/Magazine SURVEY THIS I’LL TAKE THE EXPRESS Ground was broken in April on a $12 billion Brightline West high-speed rail project that will connect Las Vegas with Southern California. News reports from July indicate the project remains “on track,” with a pair of labor agreements hammered out to provide a link between the Brightline West project and the the California High-Speed Rail Project. Brightline West will be a 218-mile passenger rail service that will operate from Las Vegas to Rancho Cucamonga, California, with 96% of its alignment within the median of the I-15 highway. PHOTO CREDIT: ETHAN MILLER, GETTY IMAGESNext >