Made with FlowPaper - Flipbook Maker
CONSTRUCTION CLAIMS BUILDING BETTER OUTCOMES WINTER 2025 ISSUE 4 • VOLUME 10 DEFINING THE STANDARD OF CARE IN DESIGN AND CONSTRUCTION FIRE, WATER, AND WOOD HOW SATURATION ADS ARE SHAPING JURY PERCEPTIONS, LITIGATION CULTURE, AND THE COST OF BUSINESS the Rising Tide Rising Tide of plaintiff Lawyer advertisingOne Company For All Your Consulting Needs GL & CD FORENSIC SERVICES Expert Disciplines A-W Architects Biomechanical Engineers Building Envelope Certified Industrial Hygienists (CIH) Civil Engineers Cost of Repair Consultants Delay Claims Consultants Dram Shop & Public Safety Electrical Engineers Environmental Consultants Fire and Explosion Investigators General Contractors Geotechnical Engineers Heavy Equipment Operations Materials Science Engineers Mechanical Engineers Metallurgists NY Labor Law Premises Liability Consultants Premises Security – Police Practices Property Loss Consultants Safety Consultants Safety – OSHA Structural Engineers Transportation/Traffic Engineers Trial Exhibit Animators UAV (Drone) Pilots Waterproofing Consultants CD & GL Forensic Consulting Property Loss Consulting Construction Consulting mcconsultants.com 800.729.0355 35WINTER 2025 | 3 THE BONES WINTER 2025 8 ON THE COVER THE RISING TIDE OF PLAINTIFF LAWYER ADVERTISING How Saturation Ads Are Shaping Jury Perceptions, Litigation Culture, and the Cost of Business 18 DEFINING THE STANDARD OF CARE IN DESIGN AND CONSTRUCTION What’s Good Enough and What’s The Right Thing to Do 28 FROM PASSIVE TO PROACTIVE Avoiding Costly Delays in High-Exposure Design and Construction Claims 24 FIRE, WATER, AND WOOD Leveraging Mass Timber Benefits While Mitigating the Risks 32 SHAPING THE OUTCOME The Crucial Role of General Contractors in Defect Allegations 12 Florida The Breach Is the Benchmark 14 Rocky Mountain Region Legislation, Lawsuits, and Markets 16 New York The Electrification Mandate 4 Inside Counsel Facing the Future Together 6 Ask the Expert Florida Residential Construction Requirements FEATURES STATE-BY-STATE DEPARTMENTS4 | CONSTRUCTION CLAIMS TheCLM.org/Magazine INSIDE COUNSEL As 2025 comes to a close, we look back on this past year and note that it has been marked by a measure of uncertainty. Larger economic factors play a part in this uncer- tainty, and there have been many reports, ar- ticles, and discussions on tariffs, for example, and how they impact the construction indus- try through the increased costs of materials. The uncertainty in 2025 follows similar economic concerns over the past few years, as inflation impacted materials costs. Meanwhile, larger industry and societal trends continue to influence the types of buildings that are constructed and how they are used. New materials and techniques, such as cross-lam- inated timber and 3D printing, are quickly transforming how the construction industry operates. The rise in remote work- places, spurred by the pandemic, has created vacant commercial buildings that are increasingly being repurposed in an effort to combat yet another trend—housing availability and afford- ability. And, as always, constantly evolving litigation trends in construction continue to play out in the courts. Through it all, CLM has facilitated discussions among construction claims and litigation management profession- als on these topics and many others. The CLM Construc- tion Conference is the obvious venue for these discussions. This past year, that conference featured sessions on topics such as commercial-to-home conversions, runaway ver- dicts, arbitration and trial strategies, construction-defect litigation trends, in-person vs. remote mediation, and, of course, artificial intelligence. But the Construction Conference is not the only option for CLM construction professionals to discuss emerging and press- ing issues. The CLM Construction Community meets regularly to talk about shared pain points and solutions. CLM webinars offer opportunities for those with knowledge of a particular trend or issue to share insights with other claims and litigation manage- ment professionals. And those of us on the CLM content team are always looking for articles from the community for this publica- tion and our magazine website. Think of Construction Claims as a print version of the CLM Construction Conference: An opportu- nity to present—in written form—on the biggest topics facing the construction claims community. As we head into 2026, consider taking part in the discussion here at CLM—in person at a conference, virtually on a webi- nar, or digitally or in print via an article. The more people who participate in these discussions, the bigger the benefit for all of CLM’s construction professionals. The pace of change does not appear to be slowing anytime soon; the best way to prepare is to face the emerging challenges together. K PHIL GUSMAN Editor Phil.Gusman@theCLM.org WINTER 2025 ISSUE 4 • VOLUME 10 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© 2025 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 Clark FACING THE FUTURE TOGETHEROnce a year, the many voices of the claims and litigation management world come together to share ideas, sharpen skills, and spark new possibilities. In 2026, we’re bringing that tradition to a place made for big thinking and even bigger imagination. Disney’s Coronado Springs Resort MARCH 25 - 27 It’s your moment to Innovate, Collaborate & #CLM2026 Register NOW Early Bird Discount Through January 236 | CONSTRUCTION CLAIMS TheCLM.org/Magazine ASK THE EXPERT QUESTION: What requirements does Florida Statute §553.837 place on newly constructed residential homes? What does this mean for builders and insurance professionals, and what should they keep in mind moving forward? A: Effective July 1, 2025, Florida Statute §553.837 imposes a mandatory one-year warranty on all newly constructed residential homes, including single-family dwellings, duplexes, triplexes, quadruplexes, and modular or factory-built units that have never previously been occupied. This statutory requirement establishes a baseline of guarantees for home- owners but also introduces new exposures for builders that typical commercial general liability (CGL) policies may not fully address. Scope and Obligations Under the Statute The statute mandates that builders warrant against construction defects that result in a ma- terial violation of the Florida Building Code. The coverage period spans one year from either the date of the original title conveyance to the first owner or the date of initial occu- pancy—whichever occurs first. Builders must remedy such defects and restore any work damaged during the remediation. Alterna- tively, builders may satisfy their obligations by securing an approved warranty from a home warranty association. Builders may exceed these statutory mini- mums by offering express written warranties that match or improve upon the baseline. To qualify, express warranties must automati- cally transfer within the initial year and, if they extend beyond one year, explicitly state their duration and transferability conditions. Exclusions from warranty coverage include: • Appliances or equipment already covered by manufacturer warranties. • Normal wear and tear or typical house settling. • Defects caused by work or materials provided by any purchaser, owner, or third party unrelated to the builder. • Loss or damage resulting from acts of God, third-party actions, or other uncontrol- lable factors. Enforcement is limited to a private cause of action by a purchaser and does not modify or extend the existing statute of repose. Insurance Implications Despite the new liability framework, standard CGL policies remain unchanged in scope. CGL coverage typically covers bodily injury or prop- erty damage arising from an “occurrence.” A key challenge is that many statutory warranty claims do not constitute “occurrences” under CGL poli- cies and, therefore, may not be covered. Strategic Considerations • Builders and risk managers should assess definitions of “occurrence,” “property dam- age,” and other contractual liability language to understand where coverage may fall short. • Consider designing custom policy endorsements that align with statutory obligations to help bridge gaps and prevent potential litigation. • Indemnity or express warranty provisions should be incorporated into subcontractor and supplier agreements to ensure liability flows downward appropriately. • Where possible, craft warranties that meet or exceed statutory requirements. • Partnering closely with legal and insurance advisors is critical for both compliance and optimal risk allocation. While most warranty-only claims will not trigger CGL coverage, builders can proactively manage risk through precise contractual draft- ing, supplemental insurance solutions, and consultation with legal counsel. K Chad N. Dunigan Managing Partner, Orlando and Jacksonville, Wood Smith Henning & Berman LLP Katherine L. Klapsa Partner, Wood Smith Henning & Berman LLP FLORIDA RESIDENTIAL CONSTRUCTION REQUIREMENTS2026 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. LITIGATION MANAGEMENT WEEK MARCH 24, 2026 CCO VIP Event (invite only) DISNEY WORLD | ORLANDO MARCH 25-27, 2026 Annual Conference DISNEY WORLD | ORLANDO MAY 20-21, 2026 Work Comp Conference NASHVILLE JUNE 17-18, 2026 Focus Conference NASHVILLE • Cyber • Property • Subrogation • Transportation • Claims & Litigation Management SEPTEMBER 9, 2026 CCO Summit (invite only) BALTIMORE SEPTEMBER 9-11, 2026 Claims College BALTIMORE SEPTEMBER 23-25, 2026 Construction Conference DALLAS OCTOBER 13-14, 2026 Litigation Management Symposium CHICAGO OCTOBER 14-17, 2026 Litigation Management Institute CHICAGO DECEMBER 2, 2026 Women’s Summit CHICAGO DECEMBER 3, 2026 Focus Conference & Holiday Party CHICAGO • Alternative Dispute Resolution • Extra-Contractual • Insurance Coverage • Insurance Fraud • Claims & Litigation Management REV.11212025WINTER 2025 | 9 S logans such as, “We fight for millions” or “Get the settlement you deserve” do more than attract potential clients—they recalibrate public perception of justice itself. Through sheer repetition, these ads teach jurors that multi-million-dollar awards are not only normal, but also expected. By the time a trial begins, many jurors walk in with inflated notions of value and entitlement, subtly shifting verdicts, settlements, and, ultimately, the cost of doing business. For businesses, this shift changes the stakes of every lawsuit. A claim that once might have been resolved for its actual economic value now risks be- ing judged against a backdrop of headline-grabbing verdicts promoted in advertising campaigns. The result is built-in pressure on defendants to settle for more than the claim is worth simply to avoid a runaway jury award. HOW SATURATION ADS ARE SHAPING JURY PERCEPTIONS, LITIGATION CULTURE, AND THE COST OF BUSINESS BY STEPHEN J. HENNING the Rising Tide of plaintiff Lawyer advertisingNext >