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< PreviousSUMMER 2023 | 11 EXAMINING THE PROS AND CONS IN PROPERTY DAMAGE AND CONSTRUCTION-DEFECT CLAIMS BY MAREN MOONEY, BRYANT GREEN, AND ATHANASIOS MARINOS I nsurance companies are obligated to investigate and make claims decisions based on informed judgments. Claims adjusters rely on various experts and their investigations to make edu- cated claims decisions and combat the prevalence of false or inflated claims. The insurance investigation process can be complex and challenging for both the in- sured and the insurer. Forensic investiga- tions of property and construction-defect insurance claims are appropriate when questions arise that require technical knowledge to determine causation or scope beyond the competencies of a claims adjuster. During the investigation, the forensic investigator often utilizes sophisticated tools and testing proce- dures to determine causation or if building system component assem- blies have been installed or con- structed in accord with design and industry-standard specifications and requirements. These tools and testing procedures vary tremendously and have the capacity to significantly aid to a forensic investigation. On the other hand, the same tools and tests may prove unreliable if inap- propriately performed or inpatriate inferences are drawn. Understanding the benefits and detriments of these procedures helps the forensic investiga- tor advise insurance claims professionals regarding a pathway to claim resolution. The Forensic Investigative Process Forensic investigations have a specific purpose and scope—the “who, what, and where” of the investigation—that dictate the methods used for the inves- tigation. The purpose and scope of the investigation are the North Star of the investigation process guiding the foren- sic expert though the causation analysis and reporting phases. The purpose and scope of the investigation must be co- herently articulated to produce relevant and responsive conclusions. The general process of a forensic investigation proceeds in three phases: the research phase, the causation analysis phase, and the reporting phase. Each phase has a particular purpose within forensic investigations: FORENSIC INVESTIGATION Is Your Worth It?12 | CONSTRUCTION CLAIMS TheCLM.org/Magazine • Data is gathered, organized, and consolidated in the research phase. Relevant data includes the scope and purpose of the investigation and the subject property or material product being investigated. • The causation analysis is where the expert analyzes the data obtained from the research phase. Using the scientific method, the expert develops and tests various hypotheses to deter- mine potential results that fall within the possible degree of engineering or scientific certainty. • The reporting phase is where the expert reports and summarizes results from the causation analysis and offers conclusions that support the purpose and scope of the investigation. From the perspective of the contrac- tor or insured, the research and causation phases are critical because the contractor needs to know what caused the issue, what work scope is implicated, if there is property damage or construction defects, and how it should be repaired. Once those factors are known, the contractor can begin repairs and determine if the loss is insured, who is responsible for repairs, and if any other means of risk transfer are available. The reporting phase is also a critical element to the insured— working in conjunction with outside counsel—to communicate the findings to all parties, protect privilege, and strategize about the timing of issuing the report. From the perspective of insurance coun- sel, most policies contain various conditions designed to assist insurers in investigating claims, and with which an insured must comply to present a claim. As such, experts and insurers would do well to coordinate with counsel to enforce policy provisions, request relevant records or other data, and lock an insured into the scope of their claim by demanding proofs of loss and even compelling the insured to give testimony in an examination under oath. Not only is a thorough and proper investigation necessary to reach the correct claims decision—a worthy end in itself—but also it protects against extracontractual expo- sure. Most states have adopted some form of the Unfair Claims Settlement Practices Act (UCSPA), which, in tandem with a jurisdiction’s bad faith jurisprudence, effectively sets the standard for proper claims adjustment. For purposes of this discussion, we fo- cus only on property damage and con- struction-defect claims. Both claim types follow similar processes but differ in testing protocols used in the causation analysis. Property damage is injury to real or personal property by a peril of some sort—whether it be another’s negligence, willful destruction, or by some act of na- ture (typically related with weather and/ or fire events). A construction defect is a physical condition that reduces the value of a structure or endangers the health or safety of its occupants, resulting from a flaw in design, materials, or workman- ship, not resulting from normal aging or wear and tear. Construction defects may be patent defects, which are easily ob- served upon inspection; or latent defects, which are present but concealed and not discovered until later. It is important to distinguish the two because a construc- tion defect alone, with no resulting prop- erty damage, is unlikely to be covered under most insurance policies. During the investigation, the forensic expert will opine as to observed property damage, and the cause and origin for the conditions identified. The expert will also opine as to deficiencies or perceived defi- ciencies identified in the real property or material product, and the cause and ori- gin of the condition for each deficiency. Tools and Testing Procedures Below, we look at tools and testing proce- dures as they relate to both property and construction-defect claims, and examine the benefits and concerns when it come to using these tools and procedures. Use of Technological Tools. Gathering data in the field can be time consuming, difficult, and carry a potential for human error such as mis-documenting and mis-noting field observations with the potential for losing data. Technological tools are available to improve data gather- ing capabilities in forensic investigations, improve the accuracy of data preserva- tion, and reduce or even eliminate data loss. In addition, specialized cameras and artificial intelligence (AI) to prepare and formulate 3D models of inspected areas have been developed for the industry and should be utilized to obtain digital twin models of the project. Both property and construction-defect claims can benefit from using these tools. The value of using these tools is that the investigation team can preserve the scene through the capture of 3D models that allow the team to review and analyze project areas in the future without worry- ing about losing information. The concerns of such tools involve their learning curves: Requirements may include specialized training in the use of these tools, specialized software training, and to substantial fast-speed cloud-based system hardware to allow gathered data to be easily stored, preserved, and accessed for future use. Testing Protocol Procedures. Testing protocols are typically referenced and performed during the analysis phase of the investigation. The purpose is to test hypotheses and support the causation theories that are being investigated. There are many different testing protocols avail- able to forensic investigators—the utility of which will depend on the scope and purpose of the investigation. Is Your Forensic Investigation Worth It? There are many different testing protocols available to forensic investigators—the utility of which will depend on the scope and purpose of the investigation. SUMMER 2023 | 13 Testing protocols can be categorized into material and building system compo- nent testing: • Building Material Testing—Com- monly used building testing procedures for cementitious materials include sounding, Swiss hammer, compressive strength break, and petrographic analy- sis. Commonly used material testing procedures for steel include hardness and tensile strength breaks. • Building System Component Testing—Commonly used building system component testing of roofs includes water hose, area flood test- ing, infrared thermal imaging, nu- clear moisture survey and mapping, membrane uplift and bell chamber testing, and rigid tile static uplift testing. Building system component testing procedures for cladding or envelope system assemblies include fenestration component testing, and stucco or plaster. These protocols have benefits and detriments when applied to each claim type. In selecting the most appropriate testing protocols, the forensic expert should, at minimum, consider: • The purpose of the testing procedure. • The input requirements for the testing. • The resulting factors from the testing. • Would the testing cause damage to the component being tested (destruc- tive or nondestructive)? • Would the resulting factors from the testing answer questions that would assist the forensic investigator in de- termining causation and assist in the purpose of the investigation? In general, the testing procedures that are nondestructive in nature tend to require less expertise, special skills, or tools; are simple to use; are less expensive; and tend to be more subjective. In contrast, procedures that are destructive in nature tend to require special skills or tools, are more expensive, and tend to be more accurate. From the contractor and insured perspective, it is important to select the test means and methods that work best to determine the extent and cause of dam- ages so they can make repairs, determine the availability of insurance coverage, and apportion responsibility. Nondestructive testing can be inconclusive and fail to sufficiently provide evidence to support downstream claims to subcontractors. On the other hand, destructive testing can be costly and cause more damage that may not be covered. Therefore, it is important to work in combination with outside counsel and the forensic investigator to select the most appropriate methods. It is also important to consider that, as new and innovative means of foren- sic investigations come into vogue, that evidence must meet the rigorous admis- sibility standards in court. Most states have adopted the Daubert approach as the standard for admissibility of scientific evidence. The specific factors explicated by the Daubert court are: • Whether the expert’s technique or theory can be or has been tested—that is, whether the expert’s theory can be challenged in some objective sense, or whether it is instead simply a subjec- tive, conclusory approach that cannot reasonably be assessed for reliability. • Whether the technique or theory has been subject to peer review and publication. • The known or potential rate of error of the technique or theory when applied. • The existence and maintenance of standards and controls. • Whether the technique or theory has been generally accepted in the scientific community. Ideally, the forensic expert, the insurer, the policyholder, and counsel all maintain sufficient integrity and appetite for truth that will motivate them to keep their investigation from becoming subject to a Daubert challenge; but at bottom, as fo- rensic experts utilize new and innovative tools to investigate property damage and construction-defect claims, they should be mindful of the necessity of ensuring the relevancy and reliability of the means they employ to investigate claims. Investigating insurance claims can be complex and technically challenging during the forensic investigation process. Insurance companies often conduct claim investigations to evaluate the legitimacy of the claim and require forensic investi- gators with proper technical credentials to sift through the technical aspects of the forensic investigation. Forensic investigations can be dis- tinguished as either property damage or construction-defect claims. Investigations of these claims have similarities and differences. The processes of these investigations often follow similar pathways, but may have dis- tinct differences as to the procedures utilized. During the investigation, the forensic investigator may require utilizing tools and testing procedures to assist in the determi- nation of the causation or to determine if building system component assemblies have been installed or have been constructed in accordance with design and industry standard specifications and requirements. The tools and testing procedures offered and available during a forensic investiga- tion vary in their purpose, and their use is dependent on the purpose and scope of the investigation. A general understanding of the benefits and detriments of these proce- dures assists the forensic investigator and the insurance adjustment team in clarifying when such procedures provide responses that support the investigation purpose and scope, thus providing a pathway to an ef- ficient and accurate claim resolution. K Maren Mooney is director of claims for Stratus Risk Associates. marenmooney@gmail.com Bryant Green is a senior associate at Zelle LLP. bgreen@zellelaw.com Athanasios Marinos is a senior forensic civil/structural engineer at Halliwell Engineering Associates, Inc. tmarinos@heainc.com Is Your Forensic Investigation Worth It? 14 | CONSTRUCTION CLAIMS TheCLM.org/Magazine State-By-State NEW YORK A PATH FORWARD Recent Labor Law Rulings Provide Signs of Hope for Owners, General Contractors By Juanita Gadsden Several recent appellate court rulings in New York could indicate a shift in how courts are viewing cases involving Section 240 of New York State Labor Law, also known as the Scaffold Law. As all New York property owners and general contractors know, the Scaffold Law has presented a wide range of legal, insurance, and risk man- agement challenges over the past several years. While originally passed to protect construction workers from serious falls, falling objects, and other elevation-related accidents, the Scaffold Law evolved into a major area of risk and has led to several multi-million dollar lawsuits. The Scaffold Law imposes strict liability on property owners and general contractors in the event of an elevation-related accident on a job site. Even if the worker was partially at fault for the ac- cident, property owners and contractors can find themselves being held liable for damages. Until recently, property owners and general contractors had little legal recourse when targeted by a lawsuit. This led to increases in defense costs Juanita GadsdenSUMMER 2023 | 15 State-By-State NEW YORK and multi-million dollar claims as well as increased insurance costs that drove up overall construction costs in New York. These additional expenses have elevated the total construction costs of a given project by as much as 10% on average, according to a report from the General Contractors Association of New York. However, recent rulings suggest this dynamic could be changing. Favorable Recent Case Rulings Last year, the New York Court of Ap- peals issued three significant decisions in cases involving plaintiffs falling off ladders. The court's language in these decisions indicates that New York courts should use a broader analysis when assessing whether an actual La- bor Law violation has occurred during these types of accidents and consider whether the plaintiff could be at partial fault by not performing certain safety checks. Further, these rulings indicate courts must remember that a plaintiff’s fall at a workplace does not automati- cally mean that a violation of Labor Law 240(1) has occurred. This represents a significant shift from prior rulings where courts almost automatically ruled in favor of plain- tiffs whenever an elevation-related ac- cident occurred. Based on the language of these recent rulings, it appears courts are now interested in pursu- ing more vigorous investigations into what safety precautions were taken, the events leading up to the accident, and, ultimately, which party is responsible for the accident. Defense Is the Best Offense These rulings could open the door for property owners and general contrac- tors to better protect themselves from these types of lawsuits. As a result, it is now more important than ever for property owners and general contrac- tors to implement additional risk man- agement measures to protect workers on the job. When it comes to New York Labor Law, defense is the best offense. Taking the following steps today could save property owners and general con- tractors millions of dollars in claims, legal fees, and settlements down the line should an unfortunate accident take place on their job site: • Create a robust safety program and regularly update it with the latest safety guidance. These programs should include clear language around elevation risks and how workers can best protect themselves from a potential accident. • Implement a safety program and exhaustively train staff. Creating the plan is just step one; safety teams must regularly train staff on safety best practices and constantly remind workers on how to protect themselves. • Create an incident response plan before an accident takes place. When an accident happens, general contractors and property owners do not want to be caught flat-footed. They must have a clear plan in place so that they can hit the ground running to collect evidence, secure witness statements, and help work- ers get the health care they need. Evidence and witness statements will be essential should an accident ever result in a lawsuit. • Build a strong return to work pro- gram that helps workers recover quickly. It is important for anyone impacted to feel appreciated and that their health is being priori- tized. This means communicating regularly, ensuring they have access to care, and perhaps putting them back to work in office or admin- istrative roles while their injuries heal. • Sign risk-transfer agreements to contractually transfer potential Scaffold Law liability to subcontrac- tors. By writing appropriate lan- guage into their contracts, including hold-harmless provisions and broad indemnity agreements, property owners and contractors can shield themselves from liability in the event of an accident. While the legal environment around the New York Scaffold Law continues to unfold, elevation-related accidents can still present general contractors and property owners with serious legal headaches. It remains crucial that these parties seek guid- ance from an insurance broker well-versed in the exposures, claims, and legal precedent surrounding the complex Scaffold Law. A knowledge- able broker can ensure property own- ers and general contractors have the proper support they need before and after a potential accident occurs. With a comprehensive plan in place and expert team resources, property owners and general contractors can be better prepared for accidents that result in lawsuits, thus protecting themselves from a potentially devastat- ing financial situation. K Juanita Gadsden is a claim consultant at Conner Strong & Buckelew. jgadsden@connerstrong.com The court’s language in these decisions indicates that New York courts should use a broader analysis when assessing whether an actual Labor Law violation has occurred.16 | CONSTRUCTION CLAIMS TheCLM.org/Magazine State-By-State SOUTH CAROLINA NARROWING THE PLAYING FIELD Strategies for South Carolina Practitioners to Determine and Eliminate Potential Damages By Laura Paris Paton In construction litigation, it is critically important that defense counsel and insurance profession- als correctly estimate the potential damages. In a perfect world, counsel would be able to immedi- ately determine that dollar amount with absolute accuracy so that the claims representative could assess the value of the case from day one. Often, this is simply not possible. There are defenses that may be raised in post- trial motions to mitigate a damage award that se- riously impacts the client’s exposure. Whether or not a client may have a large set-off available can have a substantial bearing on whether the value of a case is $20,000 or $2 million. Further, plaintiff’s attorneys do not always have their repair estimates finalized. This can leave a question mark as to what a plaintiff will seek in damages at trial. Also problematic, clients cannot always recall their scope of work on a given project. This makes it nearly impossible for the attorney to parse repair estimates for the amounts potentially attributable to their client’s scope of work. If the associated claims include punitive damages, treble damages, and damages in the form of attorneys’ fees and costs, this is considerably more dangerous. Regardless of whether those damages are covered under the policy, it is everyone’s goal to eliminate (or mitigate) the risk to the client. These subjective, amorphous damages allow runaway juries to award large verdicts in cases where objec- tive damages may be relatively small. While there are always going to be circum- stances outside of the control of attorneys and the claims professionals with whom they work, predicting the real risk to the client and eliminating subjective damages is critical. Following is part one of a two-part ar- ticle in which we examine the South Carolina landscape and strategies to limit liability for subcontractor clients. The Stoneledge Doctrine and the One-Two Punch In South Carolina, a party may collect punitive damages if it can prove injury due to “willful, wanton, or reckless conduct.” [See South Carolina Laura Paris PatonSUMMER 2023 | 17 State-By-State SOUTH CAROLINA Code Section 15-32-520(D)]. This is a low bar when one considers that viola- tion of a building code can be considered evidence of gross negligence, and certain building codes are incredibly vague and subject to interpretation. Most subcontractors in construc- tion cases face the possibility of claims by both the plaintiff and the general contractor. General contractors typically seek to cover the damages the plain- tiff asserted against them by pursuing their own claims against subcontrac- tors. However, with careful planning, a subcontractor defendant may be able to escape liability to the general contractor, including for gross negligence. First, the South Carolina Court of Appeals ruled in Stoneledge at Lake Keowee Owners’ Ass’n, Inc. v. Clear View Const., LLC that a subcontractor can- not be sued by a general contractor for causes of action that are merely dis- guised in indemnification. In Stoneledge a general contractor filed various claims in tort and in equity against its subcon- tractor. However, when challenged, the court ruled that the general contractor’s tort claim was “a claim for equitable indemnity,” explaining the allegations and remedies sought by both actions stemmed directly from the potential liability the general contractor could face for the damages claimed by the plaintiff. (See Stoneledge, 776 S.E. 2d at 428-429). The court outlined a two-part test for determining whether a general contrac- tor’s claims in tort are merely indemni- fication in disguise. First, do the general contractor’s claims against the subcon- tractor hinge on the plaintiff successfully prosecuting the general contractor? Second, are the damages alleged by the general contractor against the subcon- tractor merely repayment of the damages and attorneys’ fees the plaintiff has levied against it? If the answer to those ques- tions is “yes,” and it usually is, then a subcontractor can eliminate all claims excluding indemnification. Having successfully eliminated the claims in negligence, including claims for gross negligence that include the potential for punitive damages, counsel can turn her attention to eliminat- ing the remaining indemnity claim. Subject to a very narrow exception, in South Carolina, the doctrine of “un- clean hands” means that if the general contractor is even 1% liable, then it cannot recover in indemnity. If counsel successfully secures testimony from the general contractor conceding its own responsibilities for its subcontractor’s work, then all of the general contrac- tor’s claims against the subcontractor may be eliminated through dispositive motion practice. This does not get the client out of the case; it merely ends the general contractor’s ability to collect against the subcontractor, but it would be myopic to misjudge the value of eliminating the general contractor claims. Even if the general contractor’s claims were not very strong or valuable in and of them- selves, a general contractor may try to block a subcontractor’s attempts to settle with the plaintiff, keeping a sub- contractor in the case longer to squeeze some settlement bloodwite and avoid being the last man standing at trial. Without a claim to hold the subcontrac- tor in the case, counsel may sidestep the general contractor, settle early, and avoid years of litigation. The Unfair Trade Practices Act The South Carolina Unfair Trade Practices Act is tricky. It is generally considered a very high bar to pre- vail, but the mere threat may greatly increase settlement costs in an effort to avoid the possibility of treble damages, punitive damages, and attorneys’ fees at trial. Fortunately, there is a narrow, but oft-overlooked, method for elimi- nating these claims. In the case of Reynolds v. Ryland Group, Inc., 340 S.C. 331, 531 S.E.2d 917 (2000) the Supreme Court of South Caro- lina accepted certification of the question: “Under South Carolina law, can plaintiffs in a residential construc- tion-defects case sue defendant builder, seller and developer under the South Carolina Unfair Trade Practices Act if plaintiffs did not purchase their residences from defendant but from the original homeowner more than three years after the initial sale?” The court answered the question as follows: “Although there is no specific provision within SCUTPA which limits a cause of action to an immediate purchaser, we answer the certified question in the negative.” (emphasis added) In sum, if the plaintiff is not the orig- inal owner, he has no right of recovery under the SCUTPA. This has not been tried yet in the context of a multi-family project or a multi-house pseudo-class action, but, hopefully someday soon de- fense counsel will be permitted to at least try to use this to attack the claim in a big-dollar, high exposure condominium or multi-house neighborhood case. Next issue, in part two of this column, we will look at predicting how much money may be collected against a client now that claims have been narrowed to only those that are an actual risk at trial. K Laura Paris Paton is a partner in the Charleston office of Copeland, Stair, Valz & Lovell, LLP. lpaton@csvl.law Most subcontractors in construction cases face the possibility of claims by both the plaintiff and the general contractor.18 | CONSTRUCTION CLAIMS TheCLM.org/Magazine CLM Says RISE OF THE MACHINES CLM Construction Professionals Weigh In on the Industry’s Approach to Generative AI By Phil Gusman Generative AI tools such as ChatGPT, which once seemed far off on the horizon, have arrived and are beginning to take shape. Industries, including construction and insurance, are contemplating whether, how, and to what extent they will incor- porate this technology. For those involved in construction claims and litigation, these tools offer potential solutions to challenges such as document management and analyzing loss events and trends. However, pro- fessionals need to weigh these benefits against potential risks. In a survey of CLM’s construction professionals, members and fellows sound off on how generative AI tools may impact construction claims, what some of the risks and benefits could be, and whether the industry will be an early adopter of these tools or take a wait- and-see approach. How Generative AI Can Benefit the Industry Some professionals ranged from optimistic to bullish about how generative AI tools might be used to help better evaluate and resolve construction claims. Nick Bilski, director of risk management, BE&K Build- ing Group—“I think it could be a life saver for insureds on claims. You simply put in information on a claims scenario, and it should spit out what coverage lines should respond, and also should spit out information on contractual indemnity as well. It should take the place of a claims role on behalf of a broker in the next 10 years.” Michael Rodriguez, casualty claims specialist, Tokio Marine HCC—“Handling construction claims, we are depen- dent on the analysis of defects, damages, and the repairs required SUMMER 2023 | 19 CLM Says to correct these. Collating information and observations is of high importance to understand and to offer a solution. AI can help identify and track trends sooner. Examples would be asphalt bleed, underperforming waterproofing prod- ucts, and CPVC failures. Understanding how materials and components fail, and under what conditions, can lead to better understanding of improper uses of such materials or installation standards that may ensure failure.” William A. Wheatley, CEO, Wheat- ley US Limited—“A task that is often done poorly on construction projects that experience claims is document management. Sorting, categorizing, and linking related documents in a database can be done using software; a well-educated AI could do that, and at the same time scan for hints of problems that are about to surface. That would give the project manager the opportunity to intervene and head off the problem. I offer that service as a professional, but it could be automated using an AI.” Caution Ahead Other CLM professionals expressed concerns about using generative AI tools, with one saying outright, “I op- pose ChatGPT and think it should be illegal.” While conversations have arisen about whether and how to regulate AI, a ban seems unlikely. But perhaps some caution is in order for a technology that, as one member puts it, appears to be a “good pretender.” Joseph Herbert, partner, Hall Booth Smith, PC—“I believe that it may help parties work more efficiently and may help expedite construction processes. However, as with all technology there is the possibility that it can be exploited for improper purposes.” Ryan Williams, partner/attorney, Wilson Elser Moskowitz Edelman & Dicker, LLP—“One concern I have is that construction professionals will rely on generative tools to create complex contracts without the assistance of counsel. Nuanced provisions, such as risk allocation and insurance require- ments, may not get the scrutiny from knowledgeable professionals that is required in a given situation. If litigation arises, construction professionals may find that an AI-generated ‘one size fits all’ approach to drafting fails to offer the necessary protection, leading to unnec- essary exposure.” Patrick Kenny, partner, Armstrong Teasdale LLP—“The role of AI tools like ChatGPT is still a long way off from playing any meaningful role with re- spect to construction claims. I had been considering attempting to use ChatGPT as a first line of initial research, espe- cially on items for which there seems to be no on-point law. I therefore tried out ChatGPT several times on what I consider 'softball' legal issues. “ChatGPT is a good 'pretender.' It does generate short analyses and argu- ments on law related topics. However, its accuracy is way off. You can demonstrate this to yourself by picking a few legal is- sues that might come up in a claims set- ting and asking ChatGPT to generate a summary of the primary arguments with citations for or against some aspect of that legal issue. It will do it, and the argu- ment will appear to be at least adequate, until you double check it. “ChatGPT seems to lack judgment, and considers all of the data that it pulls from who knows where as equal in strength and reliability. The end result is ChatGPT regularly miscites legal authori- ties and often seems to make things up. “If its errors were rare and minor, I might have continued to work with it, treating its ‘work product’ like that of a new associate right out of law school, but ChatGPT's reliability and work product does not come close to that of a brand new law school graduate. “This is a clear case of the hype vastly exceeding the product. Generative AI is nowhere near ready for prime time. I am confident the early adopters of this tech in the insurance arena will end up with their names in the captions of bad faith decisions addressing the role of the technology.” Early Adoption or Wait and See? Most survey respondents believe the in- dustry will take a wait-and-see approach to adopting generative AI tools such as ChatGPT. Some, like Williams, cite busi- ness reasons: “While current iterations of generative AI may offer tangential ben- efits—such as the ability to author basic analysis concerning the technical aspect of a claim’s subject matter—more mean- ingful claim-specific analysis is currently better handled by experienced counsel.” Others note the traditional inertia in claims departments for holding off on adoption. “Claims departments tend to think in archaic terms and think tradi- tionally,” Rodriguez says. Still, others anticipate rapid adop- tion and tangible benefits. Wheatley says, “Claims departments should be early adopters, if they understand the benefits. Someone needs to develop a well-trained, special purpose version of ChatGPT that could be installed on the project computers. Most claims depart- ments are not capable of implementing that. It needs to be made available as an off-the-shelf package for installation on project computer systems.” The future of generative AI tools shows promise for construction claims professionals. But, as with any emerging technology, risks abound. If the range of survey responses here is any indication, there may be multiple ways forward for the industry when it comes to adoption and uses. K "One concern I have is that construction professionals will rely on generative tools to create complex contracts without the assistance of counsel."Next >