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CONSTRUCTION CLAIMS BUILDING BETTER OUTCOMES FALL 2023 ISSUE 3 • VOLUME 8 THE DESIGN PROFESSIONAL’S GUIDE TO RIGHT-TO-REPAIR LAWS COMMUNICATION STRATEGIES FOR THE TRIPARTITE RELATIONSHIP Generative AI: The Good, the Bad, and the Ugly How I Use (and Don’t Use) AI To Save Time and Improve EfficiencyConstruction Defect Forensics Construction Related Forensic Expert Consulting Services Pre-Suit Claims Engineering Analysis, Construction Claims, General Liability Claims Accident Reconstruction Commercial Vehicles, Bicycle / Motorcycles Multi-Vehicle Collisions, Driver Factors Cause & Origin Investigations Investigate Claims, Evaluate Damages, Repair Specifications, Reconstruction Oversight Premises Liability Trip / Slip / Fall Coefficient of Friction Analysis 34 WHO CAN SERVE ALL YOUR CD & GL FORENSIC NEEDS? 800.729.0355 One Company For All Your Consulting Needs GENERAL LIABILITY & CONSTRUCTION FORENSICS ONE FOR ALLFALL 2023 | 3 THE BONES FALL 2023 10 ON THE COVER GENERATIVE AI: THE GOOD, THE BAD, AND THE UGLY How I Use (and Don’t Use) AI To Save Time and Improve Efficiency 24 GETTING ON THE SAME PAGE Communication Strategies To Avoid Conflict in the Tripartite Relationship 28 THE DESIGN PROFESSIONAL’S GUIDE TO RIGHT-TO-REPAIR LAWS How Best To Proceed, Using Florida as a Model 32 BEFORE THE DIG Taking Early Steps To Identify Underground Utilities Helps Avoid Claims Later 14 Nevada Will Insurers Head for the Door? 16 Arizona The Immovable Object 18 South Carolina The Squeaky Wheel Eliminates the Damages 4 Inside Counsel AI Is Everywhere 6 Ask the Expert Breaking the Tie 8 Survey This Racing to Completion FEATURES STATE-BY-STATEDEPARTMENTS4 | CONSTRUCTION CLAIMS TheCLM.org/Magazine INSIDE COUNSEL AI IS EVERYWHERE Within the CLM community, we have many knowledgeable members and fellows who submit great content on all sorts of topics. However, judging by the article pitches we receive, there is one topic that is far and away the most popular to write about at the moment across all of our publications: artificial intelligence (AI). This isn’t unique to CLM or insurance. Pick a trade, check out the latest news articles, and you’re bound to find articles on how AI will impact that trade. In our last issue, members and fellows discussed generative AI tools in our “CLM Says” column, and, in this space, I discussed one response in particular that we received for that column. Patrick Kenny, partner at Armstrong Teasdale, outlined his experiences using ChatGPT, and he warned about how it had fetched incorrect figures and statistics for him, ultimately leading to more time wasted than saved. In this issue, our cover feature presents to you the other side of the story. Pete Fowler, chief quality officer at Pete Fowler Construction Consultants, discusses in detail how he uses a variety of AI chatbots, including ChatGPT, and how they are a benefit to his work. It is a fascinating read that includes watching generative AI in action as it answers questions related to writing the feature itself. Check out Fowler’s article on pg. 10. We’re in Austin This issue of Construction Claims will be distributed at September’s CLM Construction Conference in Austin. I’m looking forward to seeing all of you there, and I’m happy to announce that the newest member of CLM’s content team, Angela Sabarese, will also be attending. Angela joins CLM as associate editor, and she will help recruit, edit, and develop content across all of CLM’s publications. We’re excited to welcome Angela to our team, and I’m thrilled that she gets to attend the Construction Conference for her first CLM event! We’ll see you in Austin. K PHIL GUSMAN Editor Phil.Gusman@theCLM.org FALL 2023 ISSUE 3 • VOLUME 8 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© 2023 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. 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. CHIEF EXECUTIVE OFFICER Ronna Ruppelt VP PARTNERSHIPS Jeremy Campbell SENIOR ACCOUNT EXECUTIVE Laurel Metz ACCOUNT EXECUTIVE Megan Josd VP OF CONTENT Phil Gusman ART DIRECTOR/ PUBLISHING OPERATIONS MANAGER Jason T. WilliamsWorld-class.Globalreach. 800.580.3228 rimkus.com YOU HAVE QUESTIONS. WE PROVIDE ANSWERS. WHAT HAPPENED? WITHSOMUCHAT STAKE, YOU NEED TO KNOW Numerous factors can lead to serious construction-site accidents, from inadequate worker training and safety procedures to faulty products and heavy equipment. Rimkus has decades of forensic experience investigating and evaluating injury accidents across the U.S. and in many foreign countries. Our construction experts and engineers conduct in-depth investigations to determine what happened and can help provide solutions for recovery. If you’re facing a complex forensic challenge of any kind, count on us to uncover the facts.6 | CONSTRUCTION CLAIMS TheCLM.org/Magazine ASK THE EXPERTS QUESTION: What are order-of-precedence clauses, and should they be used in construction-contract documents? A: Order of precedence is a term referring to the clause of a construction contract that at- tempts to prioritize various components of the contract documents in the event of a conflict. The goal of this clause is to break a tie, such as conflicts or ambiguity in contract documents. Using an order-of-precedence clause can create uncertainty about how such a peck- ing order will affect the outcomes of future disputes. This can manifest in the question of what constitutes a true “conflict.” Taking a conflict as any difference between two contract documents can create problems when applying an order-of-precedence clause. One example of this is a door and its hardware. If the specifications show hardware but the drawings do not, and an order-of-precedence clause directs the contractor to look to the drawings over the specifications, the contrac- tor could install doors without hardware. On the other hand, if the specifications take priority over the drawings, a contractor could install only the hardware for a door and not the door itself. Construction contracts commonly ad- dress this discrepancy by requiring contract documents to be read together to determine the bounds of certain obligations. The Ameri- can Institute of Architects (AIA) generally advises against using order-of-precedence clauses. The AIA believes that including such a clause removes the autonomy of architects to interpret the contract documents and make key decisions. Conversely, ConsensusDocs, another provider of many standard-form construction industry contracts, includes an order-of-prece- dence clause in its contracts. ConsensusDocs’ standard order-of-precedence clause establish- es the general priority at the top with change orders and written amendments to the parties’ contract; the parties’ agreement next; and then drawings, specifications, owner-furnished information, and “other contract documents,” in that order. ConsensusDocs also presents alternative language to consider instead of an order-of- precedence clause, for example “[a]mong all the Contract Documents, the term or provi- sion that is most specific or includes the latest date shall control. Information identified in one Contract Document and not identified in another shall not be considered to be a conflict or inconsistency. If any provision of this Agreement conflicts with or is inconsistent with any other provision of other Contract Documents, the provision of this Agreement governs, unless the other provision specifi- cally refers to the provision it supersedes and replaces in this Agreement.” Whether adding similar language to an existing order-of-precedence clause or using the above language in the place of an order-of- precedence clause, clarifying the bounds and hierarchy of conflict resolution can go a long way toward heading off potential issues before they become a problem. All parties involved in construction projects—owners, design professionals, and contractors alike—should be clear and intentional about the decision to use an order-of-precedence clause or similar language. They should also be cognizant of the contractual language included to ensure the desired result if, and when, applied. K BREAKING THE TIE Tim Soefje Partner Freeman Mathis & Gary, LLP Alexander S. Gebert Associate Freeman Mathis & Gary, LLPConstruction Defect CAUSATION DAMAGE ASSESSMENT DESIGN DEFICIENCIES EXPERT WITNESS experts Your go-to Comprehensive evaluations, clear communication, complete analyses, and accurate findings. LEARN MORE8 | CONSTRUCTION CLAIMS TheCLM.org/Magazine SURVEY THIS RACING TO COMPLETION At a topping off ceremony on April 13, workers place a track safety barrier on top of the Las Vegas Grand Prix paddock building. The inaugural Formula 1 Heineken Silver Las Vegas Grand Prix is set for Nov. 16 to 18. The 300,000 square-foot, multi-level paddock building is 1,000 feet long and 100 feet wide. The lower level includes garages for the cars that will be in the race. Land for the project was purchased in June 2022, and, as of mid-August, the building was 80% complete. The paddock building is part of a massive construction project being done under a tight time schedule to prepare for November’s event. The project includes the paddock building as well as extensive road paving around the heavily trafficked Las Vegas Strip. The 3.8-mile race in November will run around some of Las Vegas’ iconic resort properties. PHOTO CREDIT: ETHAN MILLER/GETTY IMAGESNext >