Breakfast

Premier Session 1 - Making the Most of Mediation - 90+percent of ALL Cases Settle!

• Speakers:

• Bruce Alexander, Ciklin Lubitz & O'Connell

• Keith Bremer, Bremer Whyte Brown & O'Meara, LLP

• Rachel Ehrlich, Judicate-West

• Steve Nelson, Markel Surety

• Stuart Nudelman , Self Employed

This session will cover how to further your interests at mediation by knowing and using tools such as effective pre-mediation positioning, effective use of the opening session, anchoring, bracketing, mediator’s proposals, statutory compromise offers, briefs, demands, and preparing in order to get the best settlement. The panel members will go into detail about the mediation brief Dos and Don’ts by discussing confidential vs. non-confidential briefs. They will then address why having a strategy at mediation is important and explain the pros and cons of joint sessions, bracketing, and statutory offers. The panel will also discuss liens and some of the challenges associated with construction mediations. The session will close by educating the audience about why maintaining professionalism in mediation is important and give their own personal tips that they believe make mediation more effective.

Takeaways: 
-How to further your interests by knowing and using effective tools such as actual XE from depositions, discovery, demonstrative evidence/visuals; mediation demands, mediation briefs, address opening session, anchoring- both sides, bracketing, mediators’ proposals, statutory compromise offers/effectiveness, in order to get the best settlement. 
-The panel members will go into detail about the mediation Dos and Don’ts by discussing confidential vs. non-confidential briefs etc. They will address why having a strategy at mediation, being prepared, discussing your theme is important and explain the pros and cons of joint sessions, bracketing and statutory offers. 
-Learn about liens and some of the challenges associated with construction mediation. The panel members will close out the session by educating the audience about why maintaining professionalism in mediation is important and give their own personal tips that they believe make mediation more effective.

Break

Session 1 - Midwest - Complex Catastrophic Injury And Construction Defect Matters In The Midwest: Practice Pointers From Claims, Coverage and Defense Perspectives

• Speakers:

• Patrica Davis, North American Risk Services NARS

• Craig Derrig, Wood Smith Henning & Berman LLP

• William McVisk, Tressler, LLP

• Cynthia Rouse, Old Republic Contractors Insurance Group

One of the hottest growth areas for construction claims is the Midwest. Yet, the case law in this part of the nation is less mature and battle tested. What this means is there are issues emerging in the trial courts which will be played out in written decisions which will guide the clients and carriers handling risks in this volatile part of the nation. This panel will cover issues ranging from independent counsel obligations, case management order pitfalls, targeted tenders and trials in judicial hellholes and “soft” jurisdictions. It will also include an overview of the specific issues which the Midwest confronts in both residential and commercial construction. The panel will include a vigorous discussion on the Anti-Indemnity statutes in the Midwest with respect to construction claims and public policy considerations when dealing with tenders defense and indemnity. Coverage issues specific to the Midwest will also be addressed including the relationship between indemnity agreements and additional insured endorsements in shifting the risk from contractors to subcontractors and coverage for liability under indemnity agreements, horizontal vs. vertical exhaustion in catastrophic cases. Finally, the presentation will delve into differences between states with joint and several liability (like Illinois) and those with several liability only (like Indiana) and the use of contribution actions in states with joint and several liability.

Takeaways:
-Identifying early risk transfer opportunities can significantly impact potential exposure with respect to a claim. Therefore, it is critical to for the claims handler and counsel to identify early tender of defense and indemnity opportunities and the validity of the tenders. 
-Many states allow defendants the opportunity to shift loss through contribution statutes and it is important to understand how each state laws with respect to joint and several liability and several liability can impact shifting the loss. 
-There are many situations in which the exposure on a claim will be impacted by various risk shifting devices, including contribution claims, indemnity agreements and additional insured endorsements. It is essential for an adjuster to account for these in determining how to defend and adjust a claim.
-Some of these risk shifting devices may create potential conflicts among insureds that could require the provision of independent counsel.

Session 1 - National - Cybersecurity and the Construction Industry: Relevance of Cybercrime to the Construction Industry; Why the Industry is Particularly Vulnerable and the Steps Organizations Can Take to Avoid Attacks

• Speakers:

• Sarah Couillard, Markel

• Penelope Deihl, Clark Hill LLC

• Conor Mulcahy, AXA XL

• Gary Strong, Gfeller Laurie LLP

The panel will discuss when the construction industry becomes more connected through internet-connected solutions and remotely accessible systems such as Building Information Modeling (BIM), telematics and project management software it creates more opportunities for hackers to launch a cyberattack. A discussion on how construction firms which have access to a wealth of information may be desirable to hackers. Intellectual property, proprietary assets, architectural drawings and specifications as well as corporate banking and financial accounts are all prime targets. Access to employee information such as full names, Social Security numbers, and bank account data used for payroll are frequently targeted in spear phishing scams.

Takeaways:
-Cybersecurity threats are tangible both internally and externally for small, medium, and large contractors.  
-The Internet of Things (“I of T”) is one way where electronics used in the construction industry can lead to exposure to a company as well as the public and private projects a company works upon.
-Cyber-insurance is one way the construction industry can prevent catastrophic losses arising out of cybercrimes. 
 

Session 1 - National - Artificial Intelligence and Design Professionals

• Speakers:

• Margaret Donnell, Self Employed

• George Ferguson, Marsh

• Rinat B. Klier Erlich, Zelms Erlich & Mack

• Daniel McFaul, L'Abbate, Balkan, Colavita & Contini, LLP

• Meghan Welch, AM Trust North America

The panel will discuss how changes in how we do business and market and use technology (in particular AI) is changing the means and methods of the work design professionals do; and, how it affects their insurability and the claims against them. The panel will explore how we expect that AI will continue to affect design professionals in the future.

Takeaways:
-The increased use of Artificial Intelligence (AI) is reshaping how all business is performed.  This is particularly true with design professionals and the construction industry.  What will the long term impact be as the industry utilizes AI to strive to make projects safer, more precise and more cost efficient?  Like all things, the risks must be weighed against the reward.
-While use of AI may ultimately prove to minimize risk within the construction community, insureds must still obtain appropriate policies of insurance to adequately protect themselves from potential claims. 
-While AI may speed efficiency and accuracy of project design and implementation, it also brings with it new challenges such as intellectual property rights, privacy rights and cybersecurity breaches which must be considered as new avenues of potential claims not typically seen in connection with more traditional construction claims.   



 

Session 1 - National - Building Collapse Issues: Intersection of Construction Defect and Catastrophic Injury

• Speakers:

• Larry Beemer, Suite 200 Solutions

• Stephen Henning, Wood Smith Henning & Berman LLP

• Alicia Kennon, Wood Smith Henning & Berman LLP

• Brett Reuter, Arch Insurance Group Inc.

When buildings, balconies, bridges and structures collapse, the potential for catastrophic injury is huge. Added into the equation is the fallout from national media exposure which places these incidents into another level of management from a standpoint of public relations, jury management and exposure analysis. There are complex issues in terms of statute of repose, additional parties outside the traditional construction defect context, different policies and considerations for this "bet the company" type litigation. 

Session 1 - National - Closing The Gap With The Inexperienced And Unqualified Workforce

• Speakers:

• Terence Kadlec, MC Consultants, Inc.

• Daniel Levin, Cole, Scott & Kissane, P.A.

• Peter Pogue, QBE Insurance

• Rodrick Reed, Arch Insurance Group Inc.

• Kate Strauss, Galvanize Law

The construction industry is at a crossroads. Nearly 75% of contracting firms want to increase their rosters, though 50% have difficulty finding craft and salaried workers. The labor shortage comes despite construction spending reaching an all-time high over $1.2 trillion in 2017. With spending anticipated to continue, the gap between construction projects and warm bodies may result in a labor shortage approaching 1.5 million workers by 2020.  With the current labor shortage and anticipated growing gap in qualified workers, contractors continue to hire inexperienced and unqualified workers, in turn, increasing risk of defect(s) with their work. The work product ultimately suffers leaving the upward trajectory of the construction and real estate markets in flux. Furthermore, owners, design professionals, and insurance industry leaders recognize this topic as an emerging issue that effects all parties as allegations of defects collect everyone in the end. This course will discuss this emerging issue and solutions associated with the inexperienced and unqualified workforce in the booming construction market.

Takeaways:
-Sufficient documentation from in-house claims professionals (i.e. adjusters, examiners, managers) can provide valuable insight to a contractor’s past performance and claims history.  The more information provided can aide in insurance carrier’s underwriting procedures.
-Proper questioning from the initial receipt of a claim can be used to value the claim properly; interviewing and document requests are most important from day one. 
-The construction and insurance industries must work together to solve this emerging problem to reduce impairing the upward trajectory of the construction industry. 
-Educating the construction industry (the insureds) through the claims/litigation process is a tool to aide in future claims/litigation; instill the value of proper selection of qualified project managers, the importance of site safety and management, documentation throughout the life of a project, and utilizing experienced workforce.

Session 1 - National - Collaboration Over Competition: How Design Build Construction Is A Game Changer For Insurers, Brokers, Underwriters, Claims Professionals, and Attorneys

• Speakers:

• Howard Franco Jr, Collins + Collins LLP

• Guy Hollingsworth, The Hanover Insurance Group

• Melissa Roberts, USI Insurance Services

• Thomas Slocum, Chubb

• DeShaune Williams, Rimkus

A best-selling book entitled "All I Really Needed to Know I Learned in Kindergarten," emphasized simple lessons for lifetime results. Much in the same way learning how to share, take turns and listen make Kindergarten work (especially for teachers!), this presentation focuses on how collaborative, alternative delivery methods for construction revolutionize the landscape for insurers, brokers, underwriters, claims professionals and attorneys. While not all design build projects have sufficient value to warrant purchase of project specific policies, they all do present significant risk and claim paradigms which are far different in than the owner-bid-build model. More owners and contractors are turning to alternative delivery methods for both public and private projects every day. Given the focus on collaboration, owner buy in, phased design and construction, targeted financial incentives for scheduling deadlines and budgetary goals, the insurance, how it is written, by whom, in what areas of risk create new and exciting challenges for all stakeholders. As building codes and tax credit opportunities require greater energy efficiency, incentive for use of natural materials for LEED certification and sequenced building department review, don't miss tomorrow's key issues presented today in an interactive format by a premiere panel.

Takeaways:
-Design build projects focus on collaboration to reach project goals by sharing risk and reward to resolvie design and construction issues in real time.
-Design build teams become partners and share common goals without the formality of the traditional owner-bid-build model which creates new legal relationships. 
-Successful design build teams are no stronger than their weakest link requiring detailed collaboration of owners, designers, builders, specialty contractors, legal and insurance professionals. 
-Insurance professionals from brokers to underwriters and claims to auditors, need to adjust to this new environment as the number, type and scale of design build projects continues to grow.

Session 1 - National - Contractual Risk Transfer - Identifying Differences Between Comparative Negligence And Contributory Negligence Jurisdictions

• Speakers:

• Timothy Donnelly, Sompo International Insurance

• Gary Kull, Kennedys

• Bret McCabe, Self Employed

• Craig Meredith, Craig S. Meredith, Attorney + Mediator

• Vadim Veksler, Selective Insurance

Risk transfer is huge in the context of any construction matter, whether you are dealing with bodily injury or defect issues. At the same time, risk transfer provisions may mean different things to different triers of fact depending where the claim is brought. This is an area of the law fraught with nuance and legal interpretation which every general counsel, attorney and claim professional needs to know to minimize exposure. This session will discuss the basis for risk transfer starting with the fundamental issue of ascertaining the differences between comparative and contributory negligence jurisdictions – what it means to your claim, how it plays out in during the life of a claim and ultimately resolution. Mediation is often the first time these differences are discussed and advocated, knowing how to be present these arguments is pivotal. Participants in this session will leave with a better understanding of risk transfer and be armed with powerful arguments to dissect all forms of contractual risk transfer language appropriate to each jurisdiction – albeit comparative negligence or contributory negligence. 

Takeaways:
-It is imperative to recognize the type of Jurisdiction that a particular Project is based in, and whether such jurisdiction treats negligence claims on a Contributory Negligence Basis or a Comparative Negligence Basis. 
-The review and negotiation of Project Agreements is of paramount importance when attempting to limit the extent of an indemnity provision. 
-Certain States will treat the provisions of an indemnity section different from others and there are nuances between each State’s treatment of a particular indemnity clause.   
-Proper Contractual Risk Transfer will be dependent on a variety of factors and the recognition of how a specific State handles such provisions will determine how a down-stream party may limit its liability for any particular Project. 

Session 1 - SE Mid/Atlantic - Extrapolation: You’re Asking Me to Assume What?

• Speakers:

• Denise Anderson, Butler Weihmuller Katz Craig LLP

• Thomas Brown, National Claim Services LLC

• Carolyn Crawford, Nationwide Insurance Company

• Chad Dunigan, Wood Smith Henning & Berman LLP

• Robert Zaralban, SEA, Ltd.

In evaluating construction claims, good faith efforts aimed at finding resolution are often frustrated by the apparent loose nexus between limited observations of defects and resulting damage, and a claimant’s unwavering demand for systemic repairs. This dilemma often prevents the early resolution of claims, leading to protracted litigation at a soaring legal and forensic expense. Claimants are challenged to provide proof of defects of consequence, which may require expensive forensic inspections and invasive testing; while on the other hand, the implicated contractors and design professionals are asked to take a proverbial “leap of faith” and conclude the limited observations are sufficient to establish with reasonable scientific reliability that project-wide repairs are necessary.  This experienced panel of claim representatives and counsel will discuss the legal implications of extrapolation “science” and recent legal decisions. The panel will also venture into practical advice for the handling of large, multi- building- multi phase projects in pre- and post-litigation situations.   The panelists will also provide insight on how Daubert and industry standards can potentially affect an otherwise qualified expert’s ability to testify. 

Takeaways:
-Extrapolation can be acceptable, if everyone is aware that it can be subject to sample size and selection bias, and they know how to identify that bias.
-Challenging extrapolation evidence requires the assistance of a statistical expert who is qualified to opine as to that field. 
-The admission of statistical expert testimony largely depends on the jurisdiction you are in and the applicable evidentiary standards.

Session 1 - West - Energy Efficiency, Green Buildings and Sustainable Construction: Emerging Litigation Trends for Design Professionals

• Speakers:

• Bruce Bergman, AIA, LEED AP, Xpera Group

• Jeffrey Chen, EMC Insurance Companies

• John Marino, Manning & Kass, Ellrod, Ramirez, Trester LLP

• Eric Miersma, Balestreri, Potocki & Holmes

The industry’s desire to increase the amount of sustainably designed and green buildings has also increased the potential liability of design professionals.  Rapidly evolving energy efficiency driven green building codes and the evolution of high-performance building envelopes expose design professionals to new risks.

This panel, consisting of a practicing architect, primary and excess insurance carrier adjusters, and defense counsel, will explore the evolution of sustainable design and green building acceptance in the marketplace, the increasing complexity of projects, and how this impacts the future wave of claims. The discussion will include newer design standards and how they define the standard of care, particularly in jurisdictions with Green Building Code Standards and Green Incentive Programs.  

Takeaways:
-New risks to design professionals created by rapidly evolving energy efficiency driven green building codes and the evolution of high-performance building envelopes.
-Understanding and managing client expectations at outset essential for compliance with new design standards of care and for risk evaluation. 
-Types of insurance policies and contract provisions to manage risk for new trends in construction, law, and insurance products.

Lunch

Session 2 - Leveraging Cutting-Edge Tech To Mitigate and Manage Risk in Your Organization

• Speakers:

• Casey Banks, Travelers

• Peter Schermerhorn, Triax Technologies

• Rebecca Severson, Gilbane Building Company

• Bruno Wolfenzon, Wolfenzon Rolle

This presentation will delve into the latest trends, solutions, and strategies for mitigating and managing risk and safety, combining the expertise of a contractor, insurance carrier, and technology provider. Hear the challenges, including site control, injury response time, and evacuation preparedness, that industry peers are tackling through tech, and how previously unavailable data can modify risky behaviors. With real-time data, contractors are reducing evacuation drill time by up to 72% and improving injury response time by up to 91%. Gain the insights you need to adopt tech and leverage data to mitigate operating losses, boost safety, and unlock profitability at your organization. 

Takeaways:
-The construction industry is changing rapidly, and every contractor has a desire to be better, smarter and safer.  When it comes to finding the right safety technology, contractors are faced with many considerations before deciding how to invest in technology to integrate into their organization’s operational and risk management toolbox. Key factors construction companies must consider include whether the solution provides multiple use cases for value across departments; if its compatible with the rest of your business architect; and how the tech provider will support integration and data analytics initiatives.
-The goal of technology is to reduce injuries and resulting losses to ultimately improve bottom line margins. Contractors and their insurance partners today are using wearable technology to detect and notify to fall events; networked devices to evacuate jobsites; and mobile technology to identify vibration damage potential. 
-Successful technology implementation must avoid information overload to harness and utilize knowledge gained for the “now” (real-time) and “later” (predictive capabilities). System and data integration with legacy systems is vital for managing technology adoption.

Session 2 - Midwest - Construction Robots: The Way of the Future is Already Here!

• Speakers:

• Roseann Coughlin, Golden State Claims Adjusters

• Jesse Lipcius, Ulmer & Berne LLP

• Andrew Smith, Self Employed

• Tracy Smith, Acuity, A Mutual Insurance Company

This presentation will discuss how robots are impacting and improving the construction industry.  From “SAM,” a brick-laying helper, to robot tractors, to 3D-printed homes, robotics technology is here to stay.  We will assess the various ways robots are being used to assist insurers with claims investigations and underwriting.  We will then assess the multitude of liability concerns associated with robotics.  Who are the new potential defendants?  What federal, state, and local laws and regulations are in place to regulate construction robots?  How will robots change the average cost of construction accident?  Will the robot age doom the insurance industry?  These are just a few questions we will answer.  This session will be very interactive with an array of examples, case studies, and hypothetical scenarios. The future is here. Don’t get left in the dust!

Takeaways:
-Learn all about the capabilities and uses of robots in the construction world and claim investigation industry.
-Understand potential lawsuit claims and defenses associated with the use of construction robots, as well as potential plaintiffs and defendants with this new technology.
-Learn about the status of legislation and regulation of construction robots.

Session 2 - National - Design Builders Beware: Hot Topics and Emerging Claims

• Speakers:

• Donna Hunt, Ironshore Insurance Company

• Donna MacConnell, IMA Financial Group

• Wendy Testa, Wilson Elser

• Taso Tselekas, Aon

In a design-build situation a single entity takes full responsibility for design, construction, and materials. This eliminates the sometimes adversarial relationship and finger-pointing between designer and builder. It also eliminates the incentive for one of these parties to warn the owner of perceived design or build issues arising from their counterpart.  However, its is not always rosey and design build delivery comes with its own unique thorns.  This session will (1) delve into the significant differences between design build and other more traditional delivery methods; (2) examine the impact of the design build delivery method on owners, contractors and design professionals - good and bad; and (3) address emerging claims arising from insurance coverage gaps, expanded scope of duties; and a lack of appreciation of potential liability and risk transfer issues by parties entering into design-build contracts.  Through a series of well known examples of design build failures and successes,  the panel will address key risk management considerations when navigating design build projects. 

Session 2 - National - Falls are a Leading Source of Construction Site Fatalities: What Can Be Done to Prevent Them

• Speakers:

• Ken Bloom, Gartner + Bloom PC

• Angela DiDomenico, ARCCA, Inc.

• Michael Hinojosa, National Claim Services LLC

• Geoffrey Lutz, Resnick & Louis, P.C.

• Raymond Weisse, Ascot Group

According to the Bureau of Labor Statistics (BLS) of the U.S. Department of Labor, in calendar year 2014, 20.5% of worker fatalities in the private sector were in Construction. The leading causes of construction worker deaths were falls (39.9%), followed by electrocution (8.5%), being struck by object (8.4%), and being caught in-between (1.4%). These four causes were responsible for more than half (58.1%) of construction worker fatalities in 2014.
This discussion will cover:
• The various types of construction worker falls, including falls from elevation, scaffolding, ladders, etc. and why they occur.
• Applicable OSHA codes and safety standards
• The role worker behavior plays in construction accidents – i.e., lack of proper training, misuse of equipment, not wearing safety harnesses or protective gear, distracted walking, etc.
• How bio-mechanical experts determine the causation of the injuries that can result from all of the above.  

Takeaways: 
--Falls from elevations and on the same level are common causes of fatal and nonfatal injuries on a construction site. 
--To fully understand incidents involving a fall, consider the human factors, environment, and biomechanical aspects. 
--Injury mechanisms are evaluated to determine if there is a causal relationship between a construction site incident and a claimed injury.

Session 2 - National - Fighting Nice: Carrier vs. Carrier Disputes

• Speakers:

• Barbara Laskaris-Lorigan, Golden State Claims Adjusters

• Maria Quintero, Hinshaw & Culbertson LLP

• Jay Sever, Phelps Dunbar

• Ralph Woodard, Navigators, A Brand of The Hartford

Disputes between carriers often arise when it comes to who pays what and why.  Many times these disputes are resolved amicably but sometimes carriers are compelled to take their concerns to court. This panel will discuss the effectiveness of carrier versus carrier declaratory judgment actions and offer potential effective and productive resolution strategies. 

Takeaways:
-IDENTIFY the conflict. 
-COMMUNICATE early and often
-Know what you want and what you can live with and try to RESOLVE 
-Think before you FILE!

Session 2 - National - High-End Single Family Home Litigation: Where Emotions Outweigh Business Judgment

• Speakers:

• Robert H. de Flesco, Cole, Scott & Kissane, P.A.

• Sandra Heiden, Arch Insurance Group Inc.

• Michael Hollingsworth, Old Republic Contractors Insurance Group

• Will Lemkul, Morris, Sullivan & Lemkul LLP

High-end single family home litigation does not get better with age. Emotions rule the day when dealing with alleged construction defects in a wealthy plaintiff’s personal residence.
 
Wealthy Plaintiffs are accustomed to a high standard of living and to being treated deferentially from the Board Room to the Living Room. Few are familiar with adversarial litigation with entities over whom they have little or no influence.

They tend to be represented by full-service, white glove law firms with more business tort experience than construction defect experience, little coverage experience, and an interest in protecting the client relationship. 

On the other side are developers and contractors who travel in similar, wealthy circles.   With their reputations often besmirched by fraudulent allegations, the tone of litigation can be personal and rancorous. To add fuel to the fire, liability carriers for defendants appoint panel counsel and rarely agree to these insureds’ choice of counsel.  

Add to this toxic mix the fact that the wealthy homeowner lives with the defects, it’s not surprising that he continues to find “new” damages as a way to leverage settlement. How can this be stopped?

Takeaways:
-Understand the current legal landscape and business risks associated with high-end single-family home litigation.
-Understand the unique challenges to defending against a wealthy plaintiff who lies with the defects.
-Understand legal defenses strategies.
-Understand insurance evaluations for reserves and estimating exposure.

Session 2 - National - It’s the End of the World as We Know It

• Speakers:

• Stacy L. La Scala, JAMS - La Scala

• David Stern, West Coast Casualty Service, Inc.

• Lee Wright, Tokio Marine HCC

• Richard Zelonka, Wood Smith Henning & Berman LLP

The interaction of construction defect claims and failed repairs/reconstruction following CD actions have been around for ages. However, recent catastrophic events of wind, rain, flood, hail, fire and mudslides damage in Florida, Texas and California, have amplified the claims by multiples. Further complicating the matters, first party, third party, subrogation, design and lien claims bring even more parties looking for risk transfer opportunities. To make matters even worse, poorly executed emergency response and restoration activities create another level of claim and disrupt proof of causation and damages.

The panel will discuss the myriad of claims and coverage issues implicated where a traditional construction defect action is then impacted by a catastrophic even. How first party coverage comes into play and the issues that arise where claimed preexisting deficiencies and a failure to properly design are alleged to have contributed to significant additional property damage. Finally, the panel will discuss resolution strategies to get the claimant, original contractor, designers, repair contractor, first and third- party carriers to come together and globally resolve the matter.

Takeaways:
-Catastrophic events can significantly impact evidence of causation and allocation among the parties and carriers. Establishing the state of the property preceding and subsequent to an event is an important factor in causation analysis in both construction defect and first-party insurance cases. 
-First party insurers may be on the hook for construction defects if they are unable to distinguish the damages caused by alleged construction defects from a covered catastrophic event.
-In an ongoing construction defect claim where the property is impacted by a catastrophic event, the contractor should ensure that the owner's insurer is put on notice so that any potential damages caused by the event are covered and paid by the first-party insurer.
-When mediating a construction defect action where a catastrophic event has impacted the property involved, either before or after suit was filed, it is important for the parties and mediator to identify and include non-party stakeholders (i.e. first-party, third-party and subrogated carriers) in the resolution process to limit secondary claims arising from the same matter. 

Session 2 - SE/Mid-Atlantic - The Usual Suspects: A Survey of The South's Trickiest Plaintiff's Attorneys

• Speakers:

• Laura Paton, Gordon Rees Scully Mansukhani

• Michael Rodriguez, Tokio Marine HCC

• Trey Watkins, Wall Templeton & Haldrup, P.A.

• Tracy Yaun, AXA XL

This panel presentation will cover the top 2-3 construction defects plaintiff's attorneys in each state in the South. We will discuss their major verdicts, how they achieved those verdicts, and the tricks that they usually employ during litigation, mediation, and trial. We will also discuss successful strategies we have employed to combat those tricks so that claims professionals and attorneys are prepared the next time they come up against one of these "Usual Suspects". 

Takeaways:
-Current trends used in South Carolina that are impacting damage analyses in construction defects cases.
-Changes in Florida law regarding the statute of limitations that are helpful to defendants in construction defects litigation. 
-Why plaintiff’s counsel in North Carolina and Georgia have a different view of construction defect litigation that Florida and South Carolina.
 

Session 2 - South - Emerging Issues in High Rise and Mixed Use Housing

• Speakers:

• Kevin Brown, Berkley Select

• Nick Clancy, HDI Global Insurance

• Tracey Dodd, Sedgwick

• Mark Franke, Old Republic Contractors Insurance Group

• Richard E. King, Melchiode Marks King LLC

This session will focus on the disturbing issues that arise pertaining to older high-rise buildings, which may lack many of the current codes requirements for buildings such as lack of sprinkler systems, asbestos and other problems with environmental issues.

Also, we will discuss the conflicts between Owners and Homeowner Associations that had to be resolved during re-construction, if any; and, the increased costs to handle issues of lead and asbestos because the Owners and Homeowners Associations share common areas including insurance policies and building issues as well as the increased cost of compliance due to federal grant triggers to support these projects.

Takeaways:
-There are many tools available to the adjuster, expert, attorney, etc. when evaluating environmental issues pertaining to High Rise and Mixed-Use Housing. We trust that a review of those potential tools will assist the listener in evaluating, adjusting or advising on same.
-Beware of the many hidden risks involved with renovating and/or remediating older buildings. 
-Utilize the additional or new knowledge from the course in determining the scope of loss and/or valuation in order to avoid litigation. 
-If litigation is necessary, the adjuster, expert, attorney, etc. has a better understanding of the many hidden pitfalls in litigation involving High Rise and Mixed-Use Housing via real case studies.

Break

Session 3 - National - Look Out: Trends in Defense of Construction Accident Claims, Right to Repair Laws: Fix It or Skip It

• Speakers:

• Sheila Fix, Wood Smith Henning & Berman LLP

• Paul Mason, AXA XL

• Linda Pretzel Roberts, RiverStone Resources LLC

• Ross Roloff, Self Employed

• John Tolman, Bert L. Howe & Associates, Inc.

This session will focus on nationwide trends in defense of claims originating from site plagued by a construction accident with a focus on the factors underlying in the recent rise in construction accidents, the impact on the defense of the construction accident and construction defect claim, strategies for risk avoidance and transfer, emerging trends in damages, and thorny issues arising from the troubled job site.  The presenters will discuss challenges, opportunities, and practice pointers that every attendee may incorporate into his or her practice in this arena.

Takeaways:
-This session will provide the attorney, claim professional and risk manager with current information regarding the state of the workforce being utilized today, including discussion of the changing demographic, skill set and capabilities as well as the utilization of artificial intelligence and modular construction to address the shortage of qualified labors
-With relationship to the emerging claims which are arising today, this panel will explore at a granular level the impact of the labor challenges on construction safety, construction accidents and construction defects.  The panel will address the relevant labor statistics and the geographical areas where increases are being seen.  This session will be of critical import to those handling claims throughout the United States, as the common denominator is the same throughout the nation in terms of this alarming trend.
-Verdict values and analysis of construction site accidents both in and outside of hellhole jurisdictions will be discussed.  In connection with this discussion, the diversity in state laws and regulations governing the construction field and its impact on jobsite safety and quality of construction will be explored as a component of risk evaluation.
-Strategies for defending the construction accident and construction defect claim arising out of the unskilled laborer will be discussed from a claim, and legal standpoint.
 

Session 3 - National - Modular and Prefabricated Construction

• Speakers:

• Amanda Anderson, Boyle Leonard & Anderson, PA

• Anastasia Fleckser, Chubb

• Bob Haskell, AXA XL

• Steve Lokus, Sompo International Insurance

• Christine Philips, Brown & Brown Risk Solutions

Permanent modular construction has increased dramatically in the past 3-4 years and appears to be a critical part of residential and commercial construction and re-construction in storm-ravaged areas as well as for large infrastructure projects. Significant investments are being made in regional and countrywide manufacturing facilities, and general contractors are beginning to more closely align themselves with this growing enterprise. What are the advantages of modular techniques and what are the trade-offs? Is speed and economy supplanting safety? Can modular construction help alleviate the paucity of qualified on-site workers in many parts of the country?

Session 3 - National - Prioritizing Diversity and Inclusion in the Construction Community: Shaping the Future of Our Industry

• Speakers:

• Matt Adler, AXA XL

• Elaine Fresch, Hawkins Parnell & Young, LLP

• Lisa Reyes, Vela Insurance Services LLC

• Wakako Uritani, Lorber, Greenfield & Olsen, LLP

Despite growing diversity in the overall US workforce, the construction industry continues to be overwhelmingly dominated by white men. Although progress has been made, there is clearly a need for greater industry inclusion. This panel will explore diversity in the construction community -- What is it? Why is it needed? How do we promote it? Diversity initiatives, whether targeting racial, economic, gender, or cultural diversity, are needed to ensure our industry continues to evolve. We will address why everyone, whether insurer, construction worker or lawyer, needs to prioritize to ensure we are eliminating bias and continue to make progress to achieve diversity and inclusion in hiring and in the workplace, whether at an individual’s company, at mediation or in court. The panel will examine some of the challenges in accomplishing inclusion in construction, especially at the leadership level. Through an open dialogue, panel and attendees will leave this event with a better understanding of what they can do to boost inclusion and diversity in their area of the construction industry.

Takeaways:
-Incorporate diversity and inclusion into the company’s infrastructure (The Rooney Rule, transparent path to promotion, medical equity, flexibility without punishment)
-Identify your unconscious/implicit basis and overcome it – biases impact our actions.Make conscious effort.
-CURIOSITY - be curious and learn each person’s identity
 

Session 3 - National - Resilience and Resistance: Designing, Building, and Insuring In Today’s Climate Changing World

• Speakers:

• Christopher Baidenmann, MC Consultants, Inc.

• Rose Hall, AXA XL

• Julia Manganaro, Navigators, A Brand of The Hartford

• Jillisa L. O'Brien, Law Office of Jillisa L. O'Brien, P.C.

As awareness grows of the risks posed by extreme weather events and climate change, building professionals are becoming perceptible targets for a host of new liability stemming from failure to meet an evolving standard of care relating to design and construction of buildings that are resilient to climate change effects including more intense hurricanes, rising sea levels, increased erosion, and drastic temperature fluctuations. 

Design professionals and contractors are responding by developing and adopting climate resilient designs as well as construction means and methods that will withstand the impeding environmental conditions of the next generation and beyond. Insurance is evolving to proactively accommodate these new designs and conditions, and mitigate loss from the underwriting stage through the claims handling process. Properly handled, insurers can encourage their insureds to adopt climate resilient designs and construction processes much the way that LEED programs fostered a move toward more sustainable development.

This panel will examine the impact of climate change issues on the construction and  insurance industries to better understand the potential exposure associated with these emerging and evolving pressures. Learn about some of the initiatives adopted by design professionals, builders and insurers to help elevate designs and building methods resilient to climate change. 
 

Session 3 - New York - Scenes from the Courtroom: Emerging Issues in New York Labor Law Litigation Coverage Issues, Risk Management Protocols and Strategies for Minimizing Risk in this High Stakes Claim

• Speakers:

• Rose Charles, Sompo International Insurance

• Michael Coffey, Coffey Modica LLP

• Stelios (Tully) Evangelis, Shepherd

• Eva Pasalides, CNA Insurance

• Tracy Alan Saxe, Saxe Doernberger & Vita, P.C.

Construction site accidents are on the rise over the past three years; spikes in fatalities from construction make headlines regularly in both the labor and industry publications.  What results are an increasingly complex set of issues being presented to judges and juries throughout New York State. This panel will dissect the emerging trends from trials of Labor Law claims and outcomes; discuss practice pointers and strategies for minimizing exposure and complex coverage issues which will arise in most cases and best practices for the contractor, general counsel, risk manager, and claim professional.

Session 3 - Northeast - Carriers Beware! Must-Knows about Employer Liability, the “Exclusivity Rule,” Precluding Third-Party Litigation, and Indemnification

• Speakers:

• Devon Daemer, Chubb

• Mary DePaolo Haddad, Fox Rothschild LLP

• Christopher Grosso, Conner Strong & Buckelew

• Taranae Hashemi, Cozen O’Connor

Too often employers and their insurers accept liability for catastrophic losses due to an unfamiliarity with statutory and common law defenses available to preclude litigation at its onset. In this seminar we will remove the woolen veil, providing a concise and carefully crafted synopsis of the mechanisms by which employers and insurers may avoid litigation altogether. Specifically, we will address the bar to recovery from employers, recognized exceptions to bar on employer liability, steps to take in avoiding third party litigation, necessary considerations to make in crafting indemnification agreements, and how to avoid independent contractor mis-classification. Moreover, we will highlight ways in which carriers can work with the insured to maintain protection from liability rather than entering into an agreement by which those protections are inadvertently waived. While conducting this analysis, we will highlight modern trends in impugning liability of employers and provide examples by which attendees are able to fully grasp the minutia of the liability bar.

Session 3 - Southeast/Mid-Atlantic - Altman’s Aftermath: Reaction to the Recent Interpretation of Florida’s Right to Repair Law

• Speakers:

• Kathleen Conroy, AmTrust Group

• William Eskdale, Bankers Insurance

• Laura Jo Lieffers, Self Employed

• Kenna Plangemann, Suffolk Construction Company, Inc.

The 2017 Florida Supreme Court in Altman Contractors, Inc. v. Crum & Forster Specialty Ins. Co. provoked more questions about Florida Statute Chapter 558 than it answered. Panelists from both the construction and insurance industries discuss the interplay between the Chapter 558’s notice/opportunity to repair process and the duty to provide a defense to “suits” as defined in standard CGL policies. Panelists will seek input from audience related to this decision’s resulting unanswered questions.

Takeaways:
-The Florida Chapter 558 notice and repair process is not a civil proceeding; but, does constitute an alternative dispute resolution process by which a claimant may seek damages.
-Whether the Chapter 558 notice and repair process constitutes a suit under a Commercial General Liability policy is largely dependent on the language of the policy and how suit is defined in the policy. 
-Insureds performing work in Florida will need to have a clear understanding of these policy definitions and work with insurer and insurance counsel when a Florida Chapter 558 Notice of Claim is received to become fully informed regarding policy notice and consent requirements.
 

Session 3 - West - High Rise Cases Just Keep Getting Higher: What Can Be Done to Contain the Plaintiff and Manage the Risk

• Speakers:

• Thomas Balestreri, Balestreri, Potocki & Holmes

• Frank McLaughlin, The Toa Reinsurance Company of America

• Karen Rice, Proactive

• Karl Sorenson, Lusardi Construction Co.

• Jason Specht, Collinsworth, Specht, Calkins & Giampaoli LLP

The higher the tower, the higher the risk: couple that fact with zealous plaintiff attorneys that are willing to invest in investigation and the ease of proving up a claim under the performance standards in right to repair laws, and you have a recipe for disaster. The job of the defense team is to slow the wagon train down, circle the wagons and prepare the case for resolution. That entails many strategic maneuvers along the way, including reviewing the HOA governing documents for the authority of the Board to file suit in the absence of HOA membership voter approval, examining the authority of the Board under applicable statutes to recover for relocation expenses, gathering the necessary evidence to restrict extrapolation, managing precious Wrap resources, investigating how commercial uses on the property might be adversely affecting the residential common areas and analyzing the records of third party inspectors for possible pitfalls and defenses.  

Takeaways:
-Increasing OCIP limits have been met by increasing claim amounts and each of the OCIP participants holds a unique risk profile which may make them more or less prepared to tolerate a verdict or settlement of the OCIP limits
-A directed and focused defense strategy which addresses the factors unique to high rise construction must be developed at the outset of the litigation to assure there are sufficient limits to pay a settlement or verdict.
-Defense of an OCIP high rise case necessarily involves non-OCIP parties who may provide key funding for settlement and/or verdict

Break

Session 4 - Midwest - When Wrap Limits Exceed Exposure: An Actual Case Study Exploring Ethics and Resolution Obstacles

• Speakers:

• Issy Bustamante, Self Employed

• Dawn Hove, Nicolaides Fink Thorpe Michaelides Sullivan

• Dawn Krigstin, Envoy Specialty LLC

• Mary Frances Nolan, Great American Insurance Group

• George Vogrin, Vogrin & Frimet, LLP

Why is Insurance So Expensive and Whose Risk is it Anyway? The presentation will answer those question as well as the most pressing questions on OCIP and CCIP policies. The presenters will outline the trends for many large national and regional construction companies who are moving to wrap up policies, after years of risk transfer for those at the top to those at the bottom of the food chain.  With the move away from risk transfer, to risk capture the players on the stage change, and limit the total number of actors. However, these policies create ethical issues for counsel on which coverage should be triggered, for carriers with potentially overlapping coverage without their knowledge, and clients who are overpaying for insurance that they don't need.  In this session, we will cover common ethical issues for all actors, provide solutions to these ethical issues, and layout the legal landscape for these types of policies moving forward. Attendees will leave with a road map to avoid ethical pitfalls, and a strategy to resolve these conflicts with their client/customers.

Takeaways:
-Policy limits demands require extra scrutiny in terms of ethical obligations owed by a carrier to an insured in order to avoid bad faith exposure.
-Early evaluation of all risk exposure (express indemnity claims against Insureds) needs to be performed to determine what exposure potentially exists to the wrap insureds if a policy limits demand is accepted.
-Based on the potential risks of further exposure after exhaustion of the policy if a policy limits demand will be accepted, specific settlement terms should be negotiated with plaintiff to protect the insurer and insureds future liability.

Session 4 - National - Beyond the Reptile: Emerging Strategies of the Plaintiff Bar in Catastrophic Injury Claims

• Speakers:

• Thomas Cronin, Gordon Rees Scully Mansukhani

• Russell Johnson, Skanska

• Gwendolyn Larkin, American Family Insurance

• Won Jai Lee, ESIS

As construction continues to thrive across the country, so do claims involving catastrophic injuries. While the Defense Bar has grown more accustomed to defending against the Reptile Theory, recent developments and trends have given rise to new techniques and strategies employed by Plaintiffs in prosecuting their construction injury claims. Due to the recent—and sharp—rise in construction injury verdicts, defendants and insurers are now being forced into full stakes litigation from the moment a claim is filed and, in some cases, even sooner. Insurers are dealing with policy limit demands earlier and more frequently, and Plaintiff attorneys are pushing more cases to trial as juries continue to be more receptive—and, perhaps, numb—to larger verdicts. Whether evolving their strategy to deal with the increase in Owner-Controlled Insurance Program projects to strategically omitting claims for certain damages, catastrophic construction injury Plaintiffs have revealed a new approach. Utilizing the experiences of two claims examiners, the vice president of insurance and surety for one of the world’s largest contractors, and a construction litigation attorney, this panel will engage attendees in a discussion of how companies, insurers, and attorneys alike can better prepare to defend against these emerging tactics. 

Takeaways:
-An understanding of the Reptile Theory employed by plaintiff attorneys and new methods and techniques they are using to help bolster their claims
-Knowledge and identification of new techniques by the plaintiff’s bar in catastrophic injury claims will help reduce exposure and minimize the potential value that a plaintiff attorney puts on her case.
-Knowledge of defense tactics to help counter these new plaintiff approaches can help keep the overall exposure of a claim down.
 

Session 4 - National - Construction Coverage Questions: Thorny Problems, Recent Developments, and Practical Solutions

• Speakers:

• Laura Forrest, Hedrick Gardner Kincheloe & Garofalo, LLP

• Joseph Junfola, Junfola Claim Consulting

• Peter Russell, CapSpecialty

• Carrie Von Hoff, Zurich North America

The panel will raise new issues that have complicated the decisions the Claim Professionals must make regarding coverage for construction defect claims, including: (1) the overlap between CGL and E&O coverage for design-build projects; (2) problems and solutions for AI tenders; and (3) trigger and allocation rulings in key states. These are the topics that still trouble experienced Claims Professionals and continue to evolve with changing ISO forms and very recent case law in Florida, California, New York, and elsewhere.  

Takeaways:
-A vigorous investigation and thorough analysis of policy language is crucial to making appropriate coverage determinations in complex multi-party construction litigation.
-Knowledge of a particular state’s law related to trigger, allocation, and theory of causation (i.e. “but for” versus proximate) is critical to multiple coverage determinations in construction defect claims, including risk transfer mechanisms.
-Understanding of the various types of coverage that may apply to the individual players in a design-build project (contractors, architects, consultants, etc.) is essential to ensuring that the liability of each entity is allocated to the proper policy.

Session 4 - National - Design Professional Liability and Coverage Issues - The Expanding Role of Design Professionals in Construction Claims

• Speakers:

• Melanie Brown, Munich Re Specialty Insurance

• Sheryl Leichenger, Selman Leichenger Edson Hsu Newman and Moore LLP

• Matthew Rabin, Arch Insurance Group Inc.

• Brenda Radmacher, Akerman LLP

With the continued developments in technology and project delivery of construction projects, the expansion of potential liability for design professionals has continued to morph and expand. Even though the design-build project delivery method dates back at least to the ‘master builders’ of ancient Greece, it has gained great popularity in recent years as owners seek greater simplicity in directing and executing their new projects. Architectural and engineering firms of all sizes have found themselves involved in design-build projects, occasionally serving as the design-builder, but usually acting as a subconsultant. In addition, design firms are often at the cutting edge of the use of new technology, which has increased their capabilities but may also result in increased risk. The legal ramifications on design professionals from the exponential growth in technology (including BIM, drones, and virtual reality) have started to percolate up. Some design firms achieve great results and rewards while others are saddled with unexpected consequences. This panel will discuss not only the changes in the construction processes but also the legal and coverage issues and risks that have arisen for design professionals and their insurers, from the changes in delivery processes and technology changes, and discuss strategies for risk management.

Takeaways:
-Construction claims continue to impact the industry.  More players are being brought into claims as the number of players has narrowed and the insurance coverage has changed.
-Changes in the delivery methods for construction projects and technology changes will impact and cause changes to the potential liability exposure for design professionals and expand the types and numbers of claims against them.  
-Coverage analysis before engaging in the design of a project is essential.  Equally important is careful consideration of the coverages required and potential for coverage as claims are made against design professionals.

Session 4 - National - Looking for Other Pockets: Identifying and Pursuing Other Entities to Offset Liability Including Additional Insureds

• Speakers:

• Jason Judovin, Munich Re Specialty Insurance

• Mary Beth McClellan, Munich Re Specialty Insurance

• Cathleen Rebar, Rebar Kelly

• Daniel Santaniello, Luks, Santaniello, Petrillo & Cohen

The session will focus on strategy and methods for transferring indemnification and/or liability to other parties in construction litigation matters.  Specifically focusing on additional insured coverage and contractual and/or common law indemnification.  Additionally, the speakers will discuss strategies for overcoming the worker's compensation immunity and the effect of choice of law.  Often high value cases have multiple avenues for offsetting damages; the session speakers will discuss collateral sources and challenging liens to reduce the damages award. 

Session 4 - National - Taming the Beast in Monster Defect Cases: A Discussion of Emerging Issues in Document and Information Management in Construction Claims

• Speakers:

• Scott Rembold, Rembold Hirschman

• Jannea Rogers, Adams and Reese, LLP

• Mary Rowe, Markel

• Barry Schwartz, HaystackID

• Kyle Summer, Amerisure Mutual Insurance Company

Construction Defect cases often involve sifting through terabytes of electronically stored information (“ESI”) from a multitude of sources including email, mobile devices, computers, servers, external/removable media, cloud-based repositories, social media, proprietary Construction Management tools/databases, and paper documents. Identifying sources can be a project unto itself –as well as preserving, collecting, analyzing, reviewing and production. 
How do we tame the beast?  How do we as claims professionals and counsel gain control over the ever-increasing volume of paper – or bits and bytes – that are a necessary part of the matters we handle?
Information is power, controlling documentation in construction claims can mean the difference between winning and losing, or between resolving efficiently and economically and allowing the claim to spiral for years on end.
Claims professionals require a blend of the right people, process and technology. Implementing simple, yet well-defined ESI/document management and review protocols early on will ensure an efficient, streamlined, cost-effective methods. This in turn provides a litigator with a competitive edge in resolving the matter; whether through mediation or litigation, or trial.

In this discussion, the following will be covered:

Identification and Preservation of ESI
Best practices
Preventing Wasted costs
Advantages of different methods in construction defect matters

Takeaways:
-Monster Defect cases require a comprehensive overview and plan for early recognition of the best way to control the documentation.
-Use of various types of technology and resources, and getting buy-in from all parties can assist in limiting duplication and providing ease of access to documents during a case.
-Both claims professionals and counsel must assess and analyze document and information management as part of the assessment of claims.

Session 4 - National - Trial and Arbitration Strategies to Win Your Construction Case

• Speakers:

• Mark Hopkins, Guardian Group

• Jason Jurado, BITCO Construction Group

• Lisa Larratt, OC Jones & Sons Inc.

• James Sell, Tyson & Mendes LLP

Do plaintiffs really have the upper hand on justice?  Not on our watch.  The defense possesses several powerful tools proven to help reach reasonable settlement and avoid runaway jury verdicts.  This session equips participants with concrete strategies on how to effectively position cases to win over the jury or arbitrator.  This diverse panel with expertise in construction claims, mediation, defense valuations, and complex trials will guide an interactive session exploring novel trial and arbitration tactics.  The topics discussed will include: defense strategies for lawsuits arising out of construction accidents; experts the defense needs; how to develop defense themes at the claims stage, through mediation, and prior to trial to minimize chances of a runaway jury verdict; and how to use effective strategies such as giving a number and taking responsibility.  The session will be interactive, challenging, and informative for senior level claims and risk professionals, litigation managers, and attorneys.

Takeaways:
-Construction litigation poses a unique set of challenges for insurance claims handlers. 
-Powerful strategies such as defense themes and arguing pain and suffering can effectively win over a jury or arbitrator.
 -In a jury trial, juror anger is the defense’s biggest threat.  Accepting responsibility for something is the most effective way to defuse juror anger without necessarily stipulating to liability.
 

Session 4 - National - Which End of Your Building is Sinking: Examining Front End vs. Back End Risk

• Speakers:

• Emily Dotson, Resnick & Louis, P.C.

• Stephen Kleps, Rimkus

• William Noonan, Alliant Insurance Services, Inc.

• Caryn Siebert, Gallagher Bassett

The panel will present recent examples of construction claims arising from work on adjacent properties. The multi disciplinary panel (expert, attorney, adjuster) will discuss claims from their various perspectives and actively engage the audience or “collective experience” of audience members. Topics will include claims related to various construction activities as including under pining, shoring, dewatering, and other geotechnical and construction related mitigation activities. What can be done to mitigate construction risks on the front end and how to determine causation, mitigation, and risk management during the claims process when something goes wrong. 

Takeaways:
-Understanding the duties and obligations by those involved with the project and who may have documents necessary to understand liability.   
-Underlying investigating of insuring that your insured has appropriate insurance and document the project, what you need for your claims file in relation to sink holes. 
-How to best use construction consultants to evaluate valuation of losses and third-party repair plans

Session 4 - Southeast/Mid-Atlantic - The Top 10 Amendments to the AIA A-201 General Conditions

• Speakers:

• Floyd Cottrell, Rawle & Henderson, LLP

• Shawn Goodman, AXA XL

• Koji Hirota, Rimkus

• John Nunnally, Ragsdale Liggett PLLC

A discussion of the 10 most important changes to the 2017 AIA A-201 General Conditions from the 2007 edition. Owners, contractors, and architects will need to understand these changes and how their roles are impacted in order to properly perform their contractual obligations under the 2017 version.

Takeaways:
-Learn how the AIA A-201 changes improve efficiency and promote collaboration. Understand the responsibilities of Owner, Contractor and Architect under the amendments.
-Know why the Insurance Section is beneficial as a separate exhibit.
-See how parties gain the flexibility to tailor insurance requirements.
-Know what communications and formats are permitted between Owner, Contractor and Architect.

Cocktail Reception