Made with FlowPaper - Flipbook Maker
CONSTRUCTION CLAIMS BUILDING BETTER OUTCOMES WINTER 2023 ISSUE 4 • VOLUME 8 JOINING TOGETHER FOR COMMON INTERESTS PLANNING FOR SUCCESS LEARNING FROM OTHER INDUSTRIES TO PREPARE FOR THE INEVITABLE Cyber Risks Come to ConstructionOne Company For All Your Consulting Needs GENERAL LIABILITY & CONSTRUCTION FORENSICS Architects Biomechanical Engineers Building Envelope Certified Industrial Hygienists (CIH) Civil Engineers Delay Claims Consultants Electrical Engineers Environmental Consultants Fire and Explosion Investigators General Contractors Geotechnical Engineers Materials Science Engineers Mechanical Engineers Metallurgists Premises Liability Consultants Property Loss Consultants Safety – OSHA Structural Engineers Transportation/Traffic Engineers Trial Exhibit Animators UAV (Drone) Pilots Waterproofing Consultants Construction Consulting CD & GL Forensic Consulting Property Loss Consulting mcconsultants.com 800.729.0355 34WINTER 2023 | 3 THE BONES WINTER 2023 10 ON THE COVER CYBER RISKS COME TO CONSTRUCTION Learning From Other Industries To Prepare for the Inevitable 20 4X6 At CLM’s Construction Conference, Six Top Claims Leaders Take on Four Key Industry Issues 24 PLANNING FOR SUCCESS Key Considerations for a Long-Term Case Strategy 28 JOINING TOGETHER FOR COMMON INTERESTS The Use of Joint Defense Agreements and Tolling Agreements Among Construction Case Defendants 14 California Constructing the Perfect Burrito 16 Illinois When Construction Leads to Subrogation 18 Tennessee Limiting the Reach 4 Inside Counsel A Can’t-Miss Conference 6 Ask the Expert Drones Take Flight 8 Survey This Closed for Repairs FEATURES STATE-BY-STATEDEPARTMENTS4 | CONSTRUCTION CLAIMS TheCLM.org/Magazine INSIDE COUNSEL A CAN’T-MISS CONFERENCE It was great seeing many of you at CLM’s 2023 Construction Conference in September. I have always found CLM’s construction claims and litigation professionals extraordinarily welcoming, knowledgeable, and passionate about what they do, and that was on full display in Austin from the kickoff First Timer Event to the closing sessions. If you haven’t attended a Construction Conference yet, I strongly recommend checking out 2024’s conference, which will be held in Huntington Beach, California. For a taste of what you’ve been missing, thumb through the pages of this issue, as three of our four features in this edition are based on presentations from September’s conference. Two of the features, “Cyber Risks Come to Construction” and “Planning for Success,” are authored by the session presenters. Our cover feature, “Cyber Risks Come to Construction,” discusses the many cyber vulnerabilities on the job site, the industry’s lack of preparedness, and case law that could come into play in the event of a construction-related cyber breach. Meanwhile, “Planning for Success” examines key considerations for a long-term construction-defect case strategy, including the dangers of giving in to early demands, the benefits of considering arbitration, and the importance of setting a standard for future matters. Our third conference-based feature, “4X6,” covers the conference’s Premier Session, “Insights From Claims Leaders: Sharing Perspectives on the Evolving Landscape of Claims Management in Construction Litigation.” The session featured a distinguished panel of six well- respected leaders in construction claims. These professionals dove into four key topics: communication between claims and underwriting departments, claims department expectations of defense counsel and vendors, litigation metrics, and hiring challenges. The feature hits some of the session highlights, but there is something to be said for seeing these leaders discuss the issues in a conversational format live at the conference. If you attended the conference and these sessions, our features in this issue will serve as a handy reminder of the takeaways. If you did not attend, hopefully these features whet your appetite for what’s sure to be another informative, can’t-miss Construction Conference next September in Huntington Beach. K PHIL GUSMAN Editor Phil.Gusman@theCLM.org WINTER 2023 ISSUE 4 • 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. 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. CHIEF EXECUTIVE OFFICER Ronna Ruppelt 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 ClarkWorld-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 EXPERT QUESTION: How are drones being used in the construction industry, and what are the risks and challenges associated with their use? A: In the past, construction companies have used open sources, such as Google Earth, to obtain aerial images. However, these images may be: • Out of date for their intended purpose. • Low resolution. • Covered by clouds. One alternative approach has been to purchase better quality aerial images; yet, the same issues often remain. Global positioning systems (GPS) and total station positioning equipment have been used to develop site topographies. This requires teams to physically walk the site and collect data points. While drone technology is not yet as accurate as physical topographic surveys, and as such not in a position to completely replace this activity, drones can currently sup- port and enhance them. Drones, otherwise known as unmanned aerial vehicles (UAVs), are increasingly being employed to develop photogrammetry (the process of taking overlapping photographs of an object, structure, or space and converting them into 2D or 3D digital models) and light detec- tion and ranging (LiDAR)-based models for construction sites. The models provide devel- opers, contractors, and design consultants with up-to-date and accurate aerial imagery and to- pographies. These tools can be ex- tremely useful on major construc- tion sites. They can communicate key matters —such as schedule, layout, design changes, and en- countered conditions—to internal and external stakeholders. Drone-based models and imagery can be used in claims preparation as they can provide highly compelling evidence about onsite matters. Construction companies are encouraged to consider several questions relat- ing to drone use. These may include: • Do you trust subcontractors to fly over your site and collect potentially sensi- tive data? It is important to note that any reputational damage caused by an inci- dent may impact the developer or main contractor on site. • Are your risk registers accounting for regular drone flights? A flying UAV could potentially distract operators and site teams, collide with overhead utilities and cranes, or impact personnel and property inside and outside of the worksite. • Are the UAV operators licensed and qualified to undertake the flights and surveys? Many countries have specific requirements for licensing and for obtaining permits to fly and collect aerial images. In urban areas, these requirements are often more stringent. • Are you correctly caveating any issued models or imagery? Models can measure volumes, inform design decisions, or be used in claims. How accurate are the mod- els and what are they being used for? Understanding the opportunities and risks around drone use is critical to effective risk management. To overcome the chal- lenges outlined above, risk mitigation is a good place to start. If drones are used on and around a construction site, risk transfer can give confidence to the project, the business, and the team. The construction industry is increasingly utilizing drone technology to optimize pro- ductivity and capture new insights. However, as the market expands and drone use becomes more prevalent, businesses could face com- plex and high value associated risk exposures. An insurance broker or risk adviser can help navigate these risks and, importantly, help construction operations understand more about when and how drone use could affect their existing policies. K DRONES TAKE FLIGHT Tom Critchfield Specialty Advisory Risk Partner MarshKEY SPONSORSHIP OPPORTUNITIES AVAILABLE NOW: Sponsorship@TheCLM.org ALL OTHER QUESTIONS: Help@TheCLM.org CONFERENCE CONSTRUCTION BUILD THIS INTO YOUR 2024 CALENDAR SEPTEMBER 18-20 WATERFRONT BEACH RESORT IN HUNTINGTON BEACH, CA CALL FOR SESSION PROPOSALS OPENS ON MARCH 20. DETAILS TO COME.8 | CONSTRUCTION CLAIMS TheCLM.org/Magazine SURVEY THIS CLOSED FOR REPAIRS The Millennium Bridge, a pedestrian bridge that crosses the River Thames in London, closed for three weeks in October and early November so that critical repairs could be made. Most importantly, the deteriorated separation layer beneath the bridge’s aluminum deck needed to be replaced after years of wear and tear. The bridge is known as the “Wobbly Bridge” due to swaying motions experienced by pedestrians when it first opened in 2000. It was subsequently closed for two years to reduce the swaying. PHOTO CREDIT: GETTY IMAGES, ALISHIA ABODUNDEWINTER 2023 | 9Next >