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Best Practices in Construction Claims and Disputes Management

Presented by: Frederic J. Giordano, Partner, K&L Gates LLP

Donald W. Kiel, Partner, K&L Gates LLPReza Nikain, Managing Director, Marsh Risk Consulting

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Overview

Types of Policies Property Business Interruption

Rebuild and Restoration Claims Preparation and Submission Disputes Prevention and Resolution Conclusion and Questions

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General Aspects of Property Policies

First party. Insures the policyholder’s losses rather than the losses of others.

Some do contain duty to defend for claims arising out of losses.

Insures property. Buildings, fixtures, equipment, inventory. Whether “land” is insured property is a litigated issue.

Insures against perils causing loss of or damage to property.

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Types of Property Policies

All Risks or Difference-in-Condition. Covers all of the policyholder’s property, unless specifically excluded (may be called

“blanket” coverage). Covers all risks of loss (perils), unless specifically excluded.

Named perils: Fire insurance policy. Theft/Fidelity. Schedule of insured property or locations. Other specialty policies.

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Property – Insured Property

“Real and personal property” owned, used, or intended for the policyholder’s use. Improvements and betterments to buildings. Equipment and machinery. Contents/inventory/stock.

Interest of the policyholder in the property of others in the policyholder’s care, custody, and control (leasehold).

Personal property of employees on premises. Property in transit that policyholder insures.

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Extent of Coverage

The extent of coverage is determined by policy language as interpreted by applicable case law.

Policy language: Coverage grant. Exclusions. Conditions.

Applicable case law: Under common choice-of-law principles, law of the location of the damaged or destroyed property or the location of the policyholder’s insurance department/headquarters may govern.

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Coverage Grants

The scope of the insurer’s coverage grant and obligation is usually found in the insuring agreement.

Coverage grants can be broad (e.g., all risks/blanket) or narrow (e.g., named perils/scheduled).

Need to review entire policy to have a full picture of coverage grant.

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Broad Coverage Grants

All risk property example: “This policy covers all risks of physical loss of or damage to property described

herein including general average, salvage, and all other charges on shipments covered hereunder, except as hereinafter excluded.”

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Narrower Coverage Grants

Named perils/scheduled locations: “The insurer will pay for direct physical loss of or damage to Covered Property

at the premises described in the Declarations caused by or resulting from any Covered Cause of Loss.”

“Covered Property” is defined to include only certain categories of property. Premises – list of locations. “Covered Cause of Loss” is defined to include only certain perils.

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Exclusions – Property

Commonly excluded property in current policies: Money. Land. Property insured under other policies (e.g., aircraft, watercraft, automobile, and marine

insurance). Animals. Business interruption without direct physical damage to property. Contraband. Infrastructure: retaining walls, roads and bridges, pipes.

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Exclusions – Perils

Carve outs from coverage grant. Commonly excluded perils (cause of loss) in general policies:

Ordinary wear and tear. Perils covered by other policies. Vacant buildings – may not cover against certain perils (e.g., theft, vandalism, sprinkler

damage) and may reduce amount of payment from other causes of loss. Contamination (currently). Asbestos. Correction of faulty workmanship, construction, design. Nuclear materials. War-like actions.

Fortuity issue.

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General Property Policy Coverages

Examples of specific additional/supplemental coverages: May be separate provisions from insuring agreement providing for payment of

policyholder’s costs associated with a loss. Sue and Labor – Under certain conditions, insurer will contribute to cost of

safeguarding property from loss or mitigating loss. Rental equipment (e.g., vehicles) for temporary replacement of damaged or

destroyed property. Property Damage/Physical Loss or Damage.

Debris removal of insured property. Business interruption.

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Business Interruption Insurance

Business Interruption (BI) coverage is typically included as part of first party commercial property insurance covering assets of the insured entity.

Limits of commercial property insurance – provides coverage for loss or damage to real and personal property of business or “hard” costs associated with repairing or replacing property.

Catastrophic events, however, often result in consequential economic losses that extend far beyond the “hard” costs.

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The Relationship Between BI Coverage and Property Damage

BI insurance covers necessary business interruptions caused by damage to covered property.

After establishing that a covered peril has caused property damage, the insured may need to establish that the property damage caused the interruption.

Some policies may expressly exclude coverage for losses attributed to worsened business or market conditions.

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Period of Restoration

A defined term in policies. Sometimes understood to be the theoretical (or hypothetical) reasonable

amount of time that it should take the insured to repair the damage or otherwise resume operations.

Permanent Replacement Issue/Failure to Rebuild. If failure to rebuild, then theoretical debate ensues. Carriers will downplay severity and estimate time of repair under ideal circumstances. Policyholders will argue for estimates based on conditions as they exist and account for

events such as insurers’ refusal to advance funds in a timely manner.

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Interruption or Suspension of Operations

Complete Cessation vs. Partial Shutdown. Partial loss of business income.

Slow down does not count unless specified.

Suspension means: The slowdown or cessation of your business activities, or That a part of all of the described premises is rendered untenantable if coverage for

business income including rental value applies.

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Scope of Coverage – Overview

Basic form of BI coverage. Additional BI coverage provisions:

Extended. Contingent. Civil/Military Authority. Ingress/Egress. Extra Expenses. Claims Preparation Costs. Delay in Opening/Soft Costs.

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Necessary Interruption

Most policies today require that the suspension of operations be deemed “necessary.” “Necessary” is generally not defined in most policies.

General standard: Unreasonable for insured to continue business operations.

Insured need not take extraordinary efforts to avoid Necessary Interruption.

Discretionary business decisions may not qualify as necessary.

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Typical Exclusions

Utility Service Interruption. Finished Stock. Wear and Tear Exclusion. Loss Due to Unfavorable

Business Conditions.

Excluded Perils. Idle Periods. Interference. Loss of Contracts. Consequential Losses.

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Proving Lost Income

Burden of proof on plaintiff. Must show that except for the suspension of operation, the business would

have earned income. Insured must prove how much would have been earned.

TIP: Insured should retain assistance of forensic accountant/expert. Policies will typically provide standard for loss determination for business

income and extra expenses. Insured may have option to negotiate in advance with insurer on a Business

Income Agreed Value.

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Duty to Mitigate

Most policies require an insured to reduce the loss by complete or partial resumption of the business or by making use of the merchandise or other property at the location.

An insured must take steps to shorten indemnity period where possible, but it is not necessary to take any and all measures.

Reasonable actions with intention to reduce the recovery.

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Range of Possibilities

ScopeVariations

RebuildSchedule

Cost

Pace of restoration and reconstruction

As-w

as v

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High

Low

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lexity Scale

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Rebuild and Restoration

Prudency and transparency of decisions. Minimize rework – do it right the first time! Must be able to segregate costs. Cash-flow – early and continuous. Documentation – anticipate a form of negotiation/ADR/litigation.

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Claims Preparation and Submission

Condition Assessment. Interactions and Interface. Track Costs from Day 1. Monitoring/Control. Material Inventory/Management. Effective Project Controls.

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Condition Assessment

Perform the assessment as soon as possible to facilitate defining the scope.

Maintain detailed records of all assessments performed. Utilize competent and knowledgeable technical people.

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Interactions and Interface

Facilitate access to recovery work to adjusters and insurers as needed. Be transparent with all claimed work. Dedicate point person to interface.

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Track Costs From Day 1

Equipment, material, and labor. Inventory and material management. Dedicated on-site project teams.

Technical support/engineering/project controls. Operations, procurement (material management, store room/inventory), etc. Financial, contractor oversight, etc.

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Monitoring/Control

Maintain strict controls, oversight, and daily reporting of labor resources dedicated to the recovery work. Do not intermingle operational/maintenance work and recovery work. Separate

performance records and billing. Continue stressing safety; do not relax safety standards in any manner.

Accelerated and potentially crowded site conditions require an even greater emphasis and reminders on safety.

Consider engaging additional resources dedicated to site safety, if needed. Immediately determine and implement procedures to maintain site-wide

support; dedicate a contractor or resources to site support and general conditions. Control fueling of all site equipment. Manage scaffolding. Facilitate power and compressed air to all contractors.

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Material/Inventory Management

Place strict controls on the ordering, receiving, storage, and distribution of all materials and equipment intended for recovery. Return unused materials. Separate recovery materials in storeroom area from regular storeroom items. Maintain damaged materials removed from service or replaced in separate area if

needed for inspection by adjusters or insurers.

Maintain strict site security and access and inspect loads, as needed.

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Effective Project Controls

Implement and facilitate project controls. Maintain and update a realistic schedule forecast, including accurate as-built

data. Maintain and update cost forecasts. As new scope emerges, include in all forecasts.

Expect unforeseen scope. Monitor and maintain allowances and contingencies.

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Claim Submission Conditions

Notice. Look to Notice Provision for recipient (e.g., insurer, broker, law firm). If notice is provided orally, follow up in writing. Timely notice – standards vary based on policy language, facts, and law. Policy may require certain information – read the notice provisions.

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Claim Submission Conditions

Sworn proof of loss. Place, time, and cause of loss. Property lost or damaged. Value of property. Amount of loss. Oftentimes there is a time limit. If not submitted, insurer may have to show prejudice to deny coverage. Coverage litigation may supersede.

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Claim Submission Conditions

Examination under oath. Usually after proof of loss filed. Deposition of policyholder. Produce documents. Exhibit damaged property to insurer. Coverage litigation may supersede.

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Claim Submission Conditions

Suit limitation provision. May limit the time in which an action can be brought to a time period after the loss or

discovery of the occurrence giving rise to the claim. In context of progressive losses (e.g., asbestos-related property damage), there may be

disputes as to when a loss happened or occurred. Some versions of provision provide “unless a longer period is provided by applicable

statute.”

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Claim Submission Conditions

Suit limitation provision (continued). Should not rely on insurer’s ongoing investigation of claim to toll running of suit limitation

period (varies by state). Consider tolling agreement if claim resolution may be ongoing for a considerable time. Small minority of jurisdictions requires insurer to show prejudice from policyholder’s

failure to comply with provision.

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Sources of Disputes

Disputes arise from unresolved problems that stem from: Contracts and agreements. People and their perspective. Unknowns.

Ensure all decisions are aligned with the overall rebuild objectives. Early identification and alignment of objectives is the key to preventing

disputes. Proof of claims, especially ability to allocate costs to the appropriate

policy, is key in streamlining resolution of any conflicts.

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How to Select a Dispute Resolution Method

How fast do you need the issues resolved? How sensitive are you to the cost of pursuing a decision? Do you want it to be a flexible or formal setting? Nature of the issues: are they legal, questions of applicable law or equity,

and fairness driven? Level of control over the outcome – is it self-manageable or being left to

a third-party decision maker? Importance of longer-term relationship with the opposing side. Enforceability of outcome – do you want it to be binding? Privacy of the process: public domain or private and confidential?

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Conclusion

Property policies can cover losses to policyholder’s property arising from a wide variety of perils – obtain all potentially applicable policies.

If involved in a claim, be aware of policy conditions. Applicable state laws may make a difference to interpretation of policy in

a coverage dispute. Valuation is often the key issue to address. Maintain accurate and complete records of all damages and rebuild

costs.

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Contact Information Frederic J. Giordano

K&L Gates LLPPartner+ 1 973 848 4035frederic.giordano@klgates.com

Donald W. Kiel

K&L Gates LLPPartner+ 1 973 848 4064donald.kiel@klgates.com

Reza Nikain, CFCC Marsh Risk Consulting Managing Director+ 1 609 497 2266reza.nikain@marsh.com

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