Made with FlowPaper - Flipbook Maker
CONSTRUCTION CLAIMS BUILDING BETTER OUTCOMES SPRING 2023 ISSUE 1 • VOLUME 8 CONSTRUCTION’S CLOUDY OUTLOOK RISKS IN 3D WHAT SKILLS WILL CONSTRUCTION WORKERS OF TOMORROW NEED? WORKFORCE FUTURE THE OF THETHE ANSWER IS One Company For All Your Consulting Needs GENERAL LIABILITY & CONSTRUCTION FORENSICS 34 mcconsultants.com 800.729.0355 WHO HAS DECADES OF FORENSIC EXPERIENCE IN CAUSE & ORIGIN AND PRE-SUIT CLAIMS?SPRING 2023 | 3 THE BONES SPRING 2023 10 ON THE COVER THE WORKFORCE OF THE FUTURE What Skills Will Construction Workers of Tomorrow Need? 22 CONSTRUCTION’S CLOUDY OUTLOOK Supply Chain Volatility, a Changing Housing Market, and Technology Combine to Form a Changed Claims Landscape 26 SLAYING THE BEASTS Current Best Strategies for the Biggest Challenges in Construction 30 RISKS IN 3D With 3D Printed Homes Now on Sale, Has the Industry Wrapped Its Head Around This New Technique? 14 California On the Brink of Disaster 16 Louisiana Who Was Sued First? 18 New York Lights, Camera, Lawsuit 4 Inside Counsel The Future Is Here, and It’s in 3D 6 Ask the Expert Modular Concerns 8 Survey This It’s a 3D World 20 CLM Says A Brighter Future 34 Back to School FEATURES STATE-BY-STATEDEPARTMENTS4 | CONSTRUCTION CLAIMS TheCLM.org/Magazine INSIDE COUNSEL THE FUTURE IS HERE, AND IT’S IN 3D The CLM Annual Conference is right around the corner, and the theme this year is “Ready. Set. Future.” Here at Construction Claims, we piggybacked off that and, in this issue, we take a look at the future of construction—from the workforce, to new materials, to the evolv- ing claims and risk landscape. When considering content for this issue and this theme, I reached out to author Jack Levy to see if he had any updates to his previous Construction Claims features on new materials in the construction industry. He said he would research and get back to me. In the meantime, for our brand new depart- ment, “CLM Says,” I sent a survey out to CLM’s construction professionals asking what trends they are seeing that they believe will have the most positive impact on the future of the industry. I was a bit surprised to see so many survey responses mention 3D printing (you can read those responses and the reasoning behind them in “A Brighter Future” on pg. 20). I then received a phone call from Levy, who told me that all of his research was leading him to one place: 3D printing. Levy’s piece, “Risks in 3D” (pg. 30), balances out some of the survey respondents’ optimism with important risk considerations. It also provides some nuts and bolts descriptions of how 3D printing is used in construction and the materials involved. It is no coincidence that our survey responses and Levy’s research led to the same place. 3D printing in construction is here—Levy’s feature opens by noting that reservations are now being taken for a 100-home community of 3D printed ranch-style homes in Texas—and it promises everything from reduced labor costs, to more efficient manufacturing, to time savings. CLM members and fellows recognize the po- tential, but, as with any cutting-edge technology, unknowns and risks abound. On the Cover In this edition’s cover story, “The Workforce of the Future,” author Cheri Hanes looks at how technology is changing the way work will be performed on the job sites of tomorrow. While new tools and techniques will no doubt bring efficiencies and savings to the industry, construction workers will require new skills to keep up. What will this new workforce look like? How will contractors recruit a new crop of talent that is comfortable with the emerging technologies that will drive the industry? And how can exist- ing workers be trained to keep up? Be sure to check out Hanes’ feature on page 10. K PHIL GUSMAN Editor Phil.Gusman@theCLM.org SPRING 2023 ISSUE 1 • 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 SENIOR MANAGING EDITOR Phil Gusman VP OF CONTENT Eric Gilkey 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 some claim and defense considerations to keep in mind when it comes to modular construction? A: While the use of prefabricated components may have benefits (e.g., accelerated project sched- ules), the process is not a fail-safe. In a common situation, a general contractor typically has the opportunity to oversee the entire construction process, presumably making certain the project is built according to the project plans, drawings, specifications, and applicable industry stan- dards. However, when prefabricated compo- nents are called for, the general contractor may receive components that are either defective, damaged, or not otherwise in conformity with the project plans, drawings, specifications, and applicable industry standards. Given the nature of prefabricated build- ing components, there is much debate (and no clear guidance) regarding whether the Uniform Commercial Code (UCC) or common law governs situations when claims arise related to such prefabricated components. When a contract concerns “services”—as in a typical construction project setting—common law generally governs the parties’ responsibilities. However, such prefabricated components may well instead be characterized as “goods” rather than services, and when a contract is for the sale of goods, Article 2 of the UCC applies. Typically, courts apply the “predominant factor” test to determine govern- ing law, yet the question of whether prefabricated components are goods or services does not appear to have yet been definitively answered by courts around the country. Whether common law or the UCC applies to claims involving prefabricated building components may become a critical distinction. Under common law, a party to a contract does not materially breach if there is “substantial performance” of its obligations. But, under the UCC, the goods or tender of delivery must conform to the obligations precisely lest a party may, among other options, be permitted to reject the goods. Cases involving contracts related to mobile home and modular home construction sug- gest a possible application of the UCC in such situations. [See, e.g. Clark v. Jim Waters Homes, Inc., 719 F.Supp. 1037, 1044 (11th Cir.1989)]. While courts generally have held that com- pleted, prefabricated housing units built to a buyer’s specifications fall within the definition of moveable goods under the UCC, even when the contract requires the manufacturer to arrange for the units’ delivery, foundation setting, and finish work [see e.g. Ritz-Craft Corp. v. Stanford Mgmt. Grp., 800 F. Supp. 1312, 1317 (D. Md. 1992)], in such instances the contract’s sale function was held to predominate. While most courts appear not to have yet considered whether prefabricated individual components are to be deemed goods under the UCC, case law regarding modular home construction suggests contracts for the manufacture and installation of prefabricated components could fall under the UCC. If courts elect to apply the predominant factor test, prefabricated components may be treated differently based upon the language of a particular subcontract. If the agreement de- scribes the subcontractor as a “manufacturer,” the prefabricated components could be viewed as goods. On the other hand, if described as a “subcontractor,” the assembly “service” analysis may predominate. Because it appears most courts have not yet definitively weighed in, contractors may wish to revisit the language of their agreements to address such concerns. K MODULAR CONCERNS Doug Holthus Partner Freeman, Mathis & Gary LLP Eric M. Coglianese Associate Freeman, Mathis & Gary LLP2023 CONFERENCES & EVENTS Networking and Education In-Person theclm.org/events DATES, LOCATIONS, TOPICS, AND EVENT NAMES SUBJECT TO CHANGE. Sponsorship: sponsorship@theclm.org Speaking: help@theclm.org DATE CONFERENCE/EVENT LOCATION MARCH 29-31 CLM Annual Conference TAMPA MAY 17-18 Work Comp, Casualty & Risk Management Conference CHICAGO JUNE 21 Spotlight: Product Liability NEW ATLANTA JUNE 22 Spotlight: Transportation NEW ATLANTA JULY 18 Spotlight: Product Liability NEW PHILADELPHIA JULY 19 Spotlight: Transportation NEW PHILADELPHIA AUGUST 16-19 Claims College BALTIMORE SEPTEMBER 27-29 Construction Conference AUSTIN OCTOBER 19 Litigation Management Symposium CHICAGO OCTOBER 19-22 Litigation Management Institute CHICAGO NOVEMBER 8 Professional Development Day HARTFORD NOVEMBER 29 Focus Conference & Holiday Party NYC8 | CONSTRUCTION CLAIMS TheCLM.org/Magazine SURVEY THIS IT’S A 3D WORLD Wolf Ranch Community—a collaboration between ICON and Lennar for a planned community of 3D printed homes in Georgetown, Texas—will begin taking reservations this year. CLM members and fellows mention 3D printing in construction as a positive trend for the future of the industry (see “A Brighter Future” on page 20). Meanwhile, our feature, “Risks in 3D” (pg. 30) discusses some of the unknowns that risk managers and claims professionals will need to consider as 3D printing in construction becomes more mainstream. CREDIT: ICONNext >