Day 1 - Tuesday, February 24, 2015

7:30
Conference Registration and Continental Breakfast
8:00
Chairs’ Welcoming Remarks
8:05
Corporate Counsel and Claims, Risk Management and Design Professional Panels: Managing Construction Disputes and Defect Claims, Coverage Issues, Containing Costs and Formulating Litigation Strategies, Settlement Negotiations, and More
10:40
Morning Break
10:50
Integrated Project Deliveries and Teaming Agreements: The Intricacies of Working With Multiple Parties and Difficult Issues/Risks with Termination
11:40
Defining What Constitutes an Occurrence to Trigger a Policy, Determining Whether Endorsements or Exclusions Apply, Resolving Construction Defect Claims, and the Interplay with Performance Bonds
12:50
Networking Lunch for Speakers and Delegates
1:50
ISO’s Additional Insured Endorsement, the Effect of Recent Anti-Indemnity Statutes in Different Jurisdictions, Impact of Indemnification Agreements, and the Latest Wave of Claims on Indemnification
2:50
Resolving and Avoiding Schedule and Delay Issues: Examining the Enforceability of Site Disclaimer Clauses, Retaining Schedule Experts, Assessing Issues With Disruptions, Delays, and Damages Associated With the Construction Project Timeline
4:00
Afternoon Break
4:10
Duty of Good Faith and Fair Dealing in Administering a Contract, Interpreting the Court’s Ruling in Metcalf, Level of Proof and Breach of Contract Issues
5:05
Nuances of the Economic Loss Rule in Different Jurisdictions, How Owners Can Recover Damages From Subcontractors With/Without a Contract, and Insurance Coverage Issues for Contractual Liability Exclusions
6:10
Conference Adjourns to Day Two

Day 2 - Wednesday, February 25, 2015

7:30
Continental Breakfast
8:00
View From the Bench: Federal and State
11:00
Emerging Trends in Progressive Design/Build Projects, Shaping the Scope of Work, and Setting a Guaranteed Maximum Price
11:45
The Trend and Proliferation of Green Construction, Choice of Different Certifications for Green Buildings/ Projects, and Resolving Litigation Disputes When Promises for Level of Green Certification Fail to Materialize
12:45
Networking Lunch for Speakers and Delegates
1:45
Risks and Benefits of WRAP Up, OCIP (Owner Controlled), CCIP (Contractor Controlled) Policies, Subcontractor Default Insurance (Subguard), and Payment Bond/Surety: Litigating Third-Party Claims, Dealing with Excess Carriers, and
2:55
Afternoon Break
3:00
A Focus on Public/Private Partnership Projects and Foreign Construction Projects
3:50
Alternative Dispute Resolution Methods: Arbitration Unique to Construction Litigation, Ultimate Dispute Resolution, and Handling Mediation When Insurance Questions are Unresolved
5:00
Conference Ends

Day 1 - Tuesday, February 24, 2015

7:30
Conference Registration and Continental Breakfast
8:00
Chairs’ Welcoming Remarks

Denise M. Anderson
Partner
Butler Pappas Weihmuller Katz Craig LLP

Jannea S. Rogers
Partner
Adams & Reese LLP

Harold J. Gabriel
General Counsel
Andron Construction Corporation

8:05
Corporate Counsel and Claims, Risk Management and Design Professional Panels: Managing Construction Disputes and Defect Claims, Coverage Issues, Containing Costs and Formulating Litigation Strategies, Settlement Negotiations, and More

Panel 1: 8:05–9:20

Jayne Czik
General Counsel and Chief Compliance Officer
Citnalta Construction Corp.

Leonard L. Burridge
General Counsel
Weis Builders, Inc.

Kevin J. Kelly
Corporate Counsel
Environmental Chemical Corporation

Mark F. Brancato
Counsel
FLSmidth Inc.

David Harris
Legal Counsel
Petersen-Dean, Inc.

Logan Hollobaugh
Sr. Counsel, Claims Management & Corporate Litigation
CB&I

William L. Wood Esq.
Operations Facilitator
Baker Concrete Construction, Inc.

Panel 2: 9:20–10:40

Phyllis A. Modlin
Executive Claims Examiner
Markel – Claims

Derrick Harris
Construction Defect Claims Supervisor
Fireman’s Fund Insurance Company

La Tonya Darby
National Construction Defect Supervisor
Tristar Risk Management

Roy Leeds
Director, US Claims Operations
Xchanging

Gregory A. LaMarche
President
LaMarche Associates, Inc., Independent Insurance Adjusters

John H. Jordan AIA
Senior Vice President
HHCP | Helman Hurley Charvat Peacock/Architects, Inc.

Harvey M. Goodman SPPA
President and CEO
Goodman-Gable-Gould/Adjusters International

Russell Fuller
Senior Surety Claims Counsel
ICW Group/On Point Risk Solutions

Panel 1 & 2 Moderator:

Denise M. Anderson
Partner
Butler Pappas Weihmuller Katz Craig LLP

  • The latest on mixed used buildings and mega construction projects (stadiums, hospitals, manufacturing plants, etc.)
  • Construction defect claims and whether it’s covered under the policy
  • Use of experts to evaluate schedule and delay issues
  • Using BIM and assessing it’s impact on information management
  • ADR, mediation and arbitration
  • Controlling costs in e-discovery
  • Dealing with multiple policies/carriers over various years
  • Settlement negotiations
  • Disputes that arise when drafting a contract
  • Addressing the issue of parties frequently trying to limit liability and putting risk to owners
    • nuances with architects and enegineers

10:40
Morning Break
10:50
Integrated Project Deliveries and Teaming Agreements: The Intricacies of Working With Multiple Parties and Difficult Issues/Risks with Termination

George Meyer
Shareholder
Carlton Fields Jorden Burt

Carrie L. Ciliberto Esq.
AGC Senior Director and Counsel
ConsensusDocs Deputy Executive Director and Counsel

  • Integrating project delivery or collaborative agreements – owner signing an agreement with a contractor
    • Finding the same deficiencies
    • Recognizing the savings from the overall project
    • Incentive clauses and sharing savings
  • Joint ventures in teaming agreements

11:40
Defining What Constitutes an Occurrence to Trigger a Policy, Determining Whether Endorsements or Exclusions Apply, Resolving Construction Defect Claims, and the Interplay with Performance Bonds

Irene Yesowitch
Managing Partner
Meckler Bulger Tilson Marick & Pearson LLP

Jay Russell Sever
Partner, Insurance and Reinsurance Group
Phelps Dunbar LLP

Steven Cvitanovic
Partner
Haight Brown and Bonesteel LLP

Chuck Numbers
Partner
Meredith, Weinstein & Numbers, LLP

  • What constitutes an occurrence to trigger an insurance policy?
    • How are the courts defining an occurrence?
    • Single v. multiple occurrences
  • Continuing loss issue
    • Having a loss continue over several years through several different policy periods
    • From insurance standpoint, how do you handle the policies? Are all policies triggered or is only one policy triggered?
    • How some states allow you to trigger all of the policies or one policy
  • Reviewing trends on property damage
    • How are the courts handling property damage and what is covered/not covered?
    • What are the distinctions between defective/non defective work in different jurisdictions?
    • How are states treating property damage for the purposes of general liability?
    • Coverage implications on property damage v. negligence/faulty work
  • Rip and tear doctrine
    • Determining whether CGL policies provide coverage for rip and tear doctrine
    • Disputes on whether ripping out good work to get to defective work is covered within CGL policies
    • Determining whether the rip and tear damage should be considered property damage and covered under an insurance policy; what are the jurisdictional differences?
  • Eleventh Circuit’s decision regarding definition of property damage and the manner it was construed
    • Reviewing the exclusion to determining whether coverage is provided for type of property damage
    • Property damage consistent with exclusion
  • Beacon v. Skidmore, Merrill & Owings
    • Architect owed a duty of care to prospective homeowners separate from the Right to Repair Act
    • SB800 California’s Right to Repair Act – suing the architect for defects
    • Liberty Mutual – California Appellate Court cases dealing with SB800 Right to Repair Act and whether it’s the sole remedy in construction defect litigation
  • Litigation surrounding defective building products
    • Products not performing as expected
    • Allegations around builders of residential homes
    • Dealing with foreign manufacturers
  • D.R. Sherry – construction defect could be an occurrence; addressing exclusions such as business risk exclusions

12:50
Networking Lunch for Speakers and Delegates
1:50
ISO’s Additional Insured Endorsement, the Effect of Recent Anti-Indemnity Statutes in Different Jurisdictions, Impact of Indemnification Agreements, and the Latest Wave of Claims on Indemnification

Wendy D. Testa
Partner
Wilson Elser Moskowitz Edelman & Dicker LLP

Wendy Wilcox
Partner
Skane Wilcox LLP

Brent Cooper
Shareholder
Cooper & Scully, P.C.

  • Addressing the changes with the additional insured form
  • Narrowing the insurance coverage available to a general contractor in most cases under subcontractor’s insurance policy
  • Responsibilities of an additional insured
  • Resolving the disconnect between contract promises and insurance afforded to protect those promises
  • Construction contracts that force liability downwards from the owner to the general contractor to the subcontractor
    • Reducing the risk of liability: subcontractors agreement to indemnify the general contractor and owner even if the fault does not lie with the subcontractors
  • Insurer’s duty to defend
    • Other options for the insurer: litigate and file declaratory judgment or defend under reservation of right
  • Insurers interpretation of anti-indemnity statutes
  • Impact of the language of the indemnification agreement on risk management
    • Avoiding mistakes on drafting
    • Legislation which prohibits certain language in the indemnification agreement

2:50
Resolving and Avoiding Schedule and Delay Issues: Examining the Enforceability of Site Disclaimer Clauses, Retaining Schedule Experts, Assessing Issues With Disruptions, Delays, and Damages Associated With the Construction Project Timeline

Harold J. Gabriel
General Counsel
Andron Construction Corporation

Mark Boe P.E., PSP
Vice President
Capital Project Management, Inc.

Mark I. Anderson
Executive Vice President and Chief Operating Officer
Warner Construction Consultants, Inc.

Jonathan Hoyle PMP
Sr. Project Manager
WCD Group

John Nunnally
Partner
Ragsdale Liggett PLLC

  • Zachary v. Port of Houston: Addressing the enforceability of no damage for delay cause
    • How the owner’s capricious and arbitrary actions causes the delay and limits their recovery for damages
  • Retaining schedule and delay experts to assess the issues in a construction project timeline
    • How to handle schedule and delay experts
    • Forensically recreating the project timeline on a day by day basis based on documents, testimonies, and emails
  • Best practices for maintaining a workable schedule to keep a construction project on time
  • Dealing with liquidated damages clause
  • Determining what caused the delay
  • Out of sequence issues
  • Factoring in lack of insurance coverage for damages caused by delays
  • Dealing with poor contract drafting often written by contractors
  • Surety bonds that cover delay issues
  • Inserting clauses for no damages/limited damages

4:00
Afternoon Break
4:10
Duty of Good Faith and Fair Dealing in Administering a Contract, Interpreting the Court’s Ruling in Metcalf, Level of Proof and Breach of Contract Issues

Robert M. Moore
Partner
Moore & Lee, LLP

Mark P. Scheer
Founding Partner
Scheer & Zehnder, LLP

Eric A. Frechtel
Partner
Bradley Arant Boult Cummings LLP

  • What is the duty of good faith and fair dealing in administering a contract by federal government? state government? private entity?
  • What is the level of proof? Do you have to show any party acted in bad faith? Do you show specific part of the contract that was in breach?
  • Breach of implied good faith and fair dealing from owner to contract on design/build project
    • Undisclosed site conditions and what the contractor relied upon
    • Undercutting the duty of good faith and fair dealing between contracting parties
  • Impact of Metcalf and the covenant of good faith and fair dealing between contracting parties

5:05
Nuances of the Economic Loss Rule in Different Jurisdictions, How Owners Can Recover Damages From Subcontractors With/Without a Contract, and Insurance Coverage Issues for Contractual Liability Exclusions

Melissa Lin
Partner
Righi Law Group

Michael K. Wilson
Partner
Broad and Cassel, Attorneys at Law

David V. Wilson
Shareholder
LeClairRyan

Claude Bosworth
Shareholder
Rizzo Mattingly Bosworth PC

  • Interpreting recent court decisions addressing the types of damages you can recover if you have/don’t have a contract
  • Economic loss rule adopted in different jurisdiction; what are the variations if any?
  • How can an owner recover from a subcontractor without a contract?
    • Owner alleges negligence, breach of implied warranty against the subcontract
    • Owner recovering on a tort theory
  • What limitations exist in recovering based on the economic loss rule?
    • Limitations on recovering attorney’s fees
  • Measuring scope of damages
  • Policies that do not apply to liability assumed in contract
    • Subcontractors who get sued for breach of contract and whether this is covered by an exclusion
    • Owners suing for breach of contract because scope of damages are broader and includes recovery of attorney’s fees

6:10
Conference Adjourns to Day Two

Day 2 - Wednesday, February 25, 2015

7:30
Continental Breakfast
8:00
View From the Bench: Federal and State

Judges’ Panel 18:00 – 9:30

Hon. Ruben Castillo

U.S. Dist. Ct., N.D. Ill.

Hon. James L. Robart
Senior District Judge
U.S. Dist. Ct.‚ W.D. Wash.

Hon. Richard S. Schmidt

U.S. Bankr. Ct., S.D. Tex.

Hon. James P. O’Hara

U.S. Dist. Ct., D. Kan.

Hon. David J. Waxse
Magistrate Judge
U.S. Dist. Ct., D. Kan.

Judges’ Panel 2 9:35-11:00

Hon. Jose M. Rodriguez

11th Judicial Circuit Court of Florida

Hon. Susan H. Johnson

Eighth Judicial Dist. Ct., Nev.

The Honorable Judith H. Matarazzo
Judge
Multnomah Co. Cir. Ct., Ore.

Hon. C. Scott Crabtree

17th Judicial Dist., Colorado

Hon. Richard Kramer (ret.)

CA Super. Ct., San Fran.

Moderator of Judicial Panels:

Jannea S. Rogers
Partner
Adams & Reese LLP

(Break 9:30 – 9:35)

11:00
Emerging Trends in Progressive Design/Build Projects, Shaping the Scope of Work, and Setting a Guaranteed Maximum Price

Robynne T. Parkinson
Partner
Thaxton Parkinson PLLC

Steven G. Shapiro Hon. AIA

Clark Construction Group, LLC

  • Progressive design/build projects
  • How the design/build entity helps to shape the scope of work
  • Setting a guaranteed maximum price for the project
  • Trends in design/build in utility, waste water work, vertical construction, and public projects
  • Interpreting recent case law on limiting contractors ability to recover when design build risk is with contractor in federal design/build contract
  • Liability that rests with the owner in a design/build project
    • Potential exposure for the particular design

11:45
The Trend and Proliferation of Green Construction, Choice of Different Certifications for Green Buildings/ Projects, and Resolving Litigation Disputes When Promises for Level of Green Certification Fail to Materialize

David N. Crump Jr. Esq.
Director of Legal Research
Office of the General Counsel National Association of Home Builders

Joe Duncan
Partner
Huie, Fernambucq & Stewart LLP

Roger Bradley
Member
Melvin & Melvin PLLC

  • Certification for green construction
    • LEED and other certifications
    • Lack of uniform standard of certifications
  • Liability imposed for green products that fail to deliver its intended results
  • Litigation in green construction
    • Promise of Gold level certification but only getting a Silver level under the National Green Building Standard
    • Insurance coverage issues related to litigation to green certification

12:45
Networking Lunch for Speakers and Delegates
1:45
Risks and Benefits of WRAP Up, OCIP (Owner Controlled), CCIP (Contractor Controlled) Policies, Subcontractor Default Insurance (Subguard), and Payment Bond/Surety: Litigating Third-Party Claims, Dealing with Excess Carriers, and

Scott D. Nader
Vice President Chief Counsel, Americas
Crawford & Company

Leeann Irvin Esq.
Senior Claims Analyst U.S. Casualty Claims
Allied World Insurance Company

Kimberly Hansen Petrina
Partner
Traub Lieberman Straus & Shrewsberry, LLP

Brendan Winslow-Nason
Member
Cozen O’Connor

WRAP Up

  • Inherent risks/benefits of a contractor putting one policy into play and making everyone including subcontractor into that one policy
  • Benefits of a wrap up policy: more limits, more coverage and unified coverage

OSIP

  • Litigating third-party claim when there is only one insurance policy
  • Factoring in primary and excess carriers
  • Dealing with burning limits policies (limits that erode for defense cost; number of occurrences)
    • Resolving conflicts with attorney representation
  • Insurers that issue reservation of rights

CSIP

  • Risks and benefits with contractor controlled policy

Subcontractor default insurance (Subguard) v. payment bond/surety

  • What is the effect of using a contractor default insurance product v. payment bond/surety?

Reservation of Rights Issues

2:55
Afternoon Break
3:00
A Focus on Public/Private Partnership Projects and Foreign Construction Projects

A Focus on Public/Private Partnership Projects and Foreign Construction Projects

Danielle Swann
Counsel
Jackson Kelly PLLC

William J. Wray
Member
Meier Fine & Wray

Addressing Public/Private Partnership Projects, Legislation in Different Jurisdictions, and Resolving the Question of Whether the Private Entity Given Too Much Equity is Against Public Policy

  • Public entities lacking the funds to finance a project and look to private partnerships with commercial aspect
  • States with aggressive public/private partnership laws
    • Addressing controversies with public/private partnerships
    • Should Public/Private Partnerships be regulated?
    • Some states that have broad authority for public agencies to enter into contract with private developer without going through public procurement process
    • Some states that do not allow public/private partnerships
    • States with limited abilities to enter public/private partnerships
  • Unsolicited proposals made to government entities from private developers
  • Impact on performance/payment bonds on public/private partnerships
  • Determining whether private entity given too much equity is against public policy
  • Contracts that are not spelled out in terms of long term issues

Foreign Construction Projects: Opportunities for Overseas Projects for Construction Professionals, Utilizing Contract Forms, and Managing a Project Timeline in the International Context

  • Infrastructure projects in Arab world and Southeast Asia and beyond
  • How do construction professionals get involved in international projects?
  • Dispute resolution in the international construction context
  • Standard form contracts in Europe

3:50
Alternative Dispute Resolution Methods: Arbitration Unique to Construction Litigation, Ultimate Dispute Resolution, and Handling Mediation When Insurance Questions are Unresolved

Jose M. Pienknagura
Executive Vice President, General Counsel, and Risk Manager
Hunt Construction Group

Thomas L. Rosenberg
Partner
Roetzel & Andress LPA

Dr. Patricia D. Galloway
President and CEO
Pegasus Global Holdings, Inc.

Michael A. Marra
Vice President
American Arbitration Association

  • How the proliferation of ADR, mediation, and arbitration impacted litigation, trial, and appellate decisions
  • Unique challenges associated with arbitration in the construction litigation context
    • What level of background/expertise is required for arbitrators in the construction litigation context?
  • Handling mediation when insurance questions are unresolved
  • Forum selection clauses in arbitration agreements
    • Interpreting the decision in Atlantic Marine Construction Co. v. United States District Court for the Western District of Texas
    • Forum selection clauses are valid in the absence of public policy determining otherwise
  • Ultimate dispute resolution
    • Resolving claims are the early in the process and bringing independent parties to review disputes
    • Three independent parties reviewing the claim well in advance of the legal process

5:00
Conference Ends