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WORKSHOP W4

Wednesday, November 118:30 a.m.–9:30 a.m.

10:00 A.M.–11:00 a.m.

LITIGATION MANAGEMENT FOLLOWINGA CONSTRUCTION SITE ACCIDENT

Presented by

John AlicandriChief Operating Officer

Hunter Roberts Construction Group

David R. PeriniPartner

Terrier Claims Services

Christopher RuggieroPartner

London Fischer LLP

Have you ever felt like you were one step behind when defending a construction sitepersonal injury lawsuit? No photos of the accident scene were taken, the allegedlydefective ladder disappeared, and the plaintiff pleads a completely different version ofthe accident than what your client/insured reported. Experience shows that a detailed,immediate postaccident investigation on a construction project has a dramatic impacton the resolution of the lawsuits/claims that will likely follow. Examine cutting-edgetechniques employed in investigating accidents to prepare for litigation to minimizethe loss while maintaining the integrity of the construction manager’s safety culture.Learn about securing critical evidence, preserving witness accounts, protectingprivileges, employing cost control methods, transferring risk effectively, and usingthird-party vendors. Participants in this workshop will be provided with a road map forhow to best prepare for future lawsuits and streamline costs by using the relationshipsbetween the construction manager, the insurers’ claims and counsel, outside experts,and service providers during a construction site accident response.To print on both sides of the page, set your printer for duplex printing.

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opyright © 2015 International Risk Management stitute, Inc.

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52679C

*The Las Vegas Arena, owned by AEG and MGM Resorts International is being constructed by Hunt-PENTA, a joint venture. The Hartford® is The Hartford Financial Services Group, Inc. and its subsidiaries, including issuing companies, Hartford Fire Insurance Company, Hartford Life Insurance Company and Hartford Life and Accident Insurance Company. Its headquarters is in Hartford, CT.© 2015 The Hartford Financial Services Group, Inc. All Rights Reserved.

In the midst of constructing the new MGM arena* in Las Vegas, Hunt Construction Group trusts The Hartford to keep them up to date with the industry’s best job safety practices. With a single day-to-day point of contact and our very own Industrial Hygeine lab, we can give them the attention and information they need to make their project better and their people safer.

See the whole story at THEHARTFORD.COM/CONSTRUCTION.

Prepare. Protect. Prevail.®

STATE-OF-THE-ART STRUCTURES NEED INSURANCE COVERAGE TO MATCH.

JOB# / P52679-C7 CLIENT / The Hartford TITLE / State-of-the-Art Structures MEDIA / Magazine/4C –Page Bleed SIZE / 9" × 11.5" trim

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John AlicandriChief Operating Officer

Hunter Roberts Construction Group

In addition to serving as chief operating officer of Hunter Roberts, Mr. Alicandri also serves on theboard of directors. His responsibilities include leadership, management, and oversight of the com-pany’s purchasing, estimating, preconstruction, information technology, legal, risk management,and project cost management functions. Mr. Alicandri leads the preconstruction and estimatingefforts required to bring a conceptual design from preparation of construction documents throughfinal budget or GMP. His risk management responsibilities include providing insurance and con-tractual risk oversight, as well as leading Hunter Roberts’s contractor controlled insurance pro-gram and subcontractor default insurance program. Mr. Alicandri has affiliations with the Building Trade Employers’ Association, the New York Build-ing Congress, New York Landmarks Conservancy, and the AIG Construction Advisory Board. Heholds a bachelor of engineering—civil engineering (BECE) degree from Stevens Institute of Tech-nology.David R. Perini

Partner Terrier Claims Services

Terrier Claims Services (TCS), where Mr. Perini is a partner, is a full-service investigation andadjusting company operating throughout the Northeast and Florida. Mr. Perini started his careerwith TCS in 1999 after working as an investigator with the state of New Jersey attorney general’soffice, assigned to consumer protection and the insurance fraud prosecutor. Mr. Perini highlightshis depth as an investigator and his ability to integrate that knowledge to organize and supervisean elite investigative team that understands the needs of the construction industry. Mr. Perini is a New York state casualty adjuster and a licensed private investigator. He earned abachelor’s degree in criminal justice from Pace University.

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Christopher RuggieroPartner

London Fischer LLP

As a partner at London Fischer LLP and a member of the firm’s litigation practice as well as its con-struction and labor law practice groups, Mr. Ruggiero’s practice consists of litigation and commer-cial litigation, including construction, premises liability, labor law, mass torts, toxic/environmen-tal torts, property damage, employment, discrimination, insurance coverage, and the litigation ofvarious commercial matters. He represents building owners, construction companies, and corpo-rations and develops and manages case strategy in both state and federal courts. Mr. Ruggiero holds a BA degree in political science and mathematics, summa cum laude, fromManhattanville College. He received his JD degree from Brooklyn Law School, with a concentrationin complex civil litigation. He is admitted to practice in New York; Washington, D.C.; and the UnitedStates District Court for the Southern and Eastern Districts of New York.

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#IRMI2015

LITIGATION MANAGEMENT FOLLOWING A CONSTRUCTION SITE ACCIDENT

LONDON FISCHER LLPHUNTER ROBERTS CONSTRUCTION GROUP, L.L.C.TERRIER CLAIMS SERVICES INC.11/11/15 – 8:30AM AND 10AM 10/20/2015

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#IRMI2015

KEYS TO SUCCESSFUL INVESTIGATION INITIAL TRIAGE/SCOPE OF INVESTIGATION ENSURE PERSONAL/PROPERTY SAFETY PRESERVE AND MAINTAIN EVIDENCE USE THE RIGHT EXPERT COLLECT KEY DOCUMENTS/STATEMENTS PREPARE FOCUSED REPORTING CLOSE INVESTIGATION

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JURY VERDICTS INCOMPLETE INVESTIGATION PERFORMED ON

SITE; INFORMATION MISSING FROM ACCIDENT REPORT - $22 MILLION

PROPER FALL PROTECTION NOT PROVIDED TO WORKER INJURED IN FALL - $18 MILLION

ARCH FLASH SUIT NOT PROVIDED TO ELECTRICIAN - $11 MILLION

RESPIRATOR NOT PROVIDED TO WORKER IN CONFINED SPACE - $17 MILLION 10/20/2015

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WHY IS THIS IMPORTANT TO CM/GC?

COMMUNICATING INFORMATION ABOUT INCIDENTS PREVENTS FUTURE LOSSES

ALLOWS FOR EARLY AND SUCCESSFUL RISK TRANSFER OPPORTUNITIES

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IMPACT TO BOTTOM LINE POOR INVESTIGATION CAN LEAD TO MULTI-

MILLION DOLLAR VERDICTS OR ADVERSE SETTLEMENTS

BIG VERDICTS AND SETTLEMENTS ERODE PROFITABILITY

IMPACT TO LOSS HISTORY AFFECTS FUTURE RATES/RETENTIONS

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INCIDENT REPORTING VS. ACCIDENT INVESTIGATION

COMMUNICATION OF INCIDENTS IS CRITICAL TO MAINTAINING SAFETY CULTURE

DISCUSSING INCIDENTS, THEIR CAUSE, AND REMEDIAL MEASURES PREVENTS INCIDENTS FROM OCCURRING IN THE FUTURE

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CONFLICT WITH NEEDS OF DEFENSE COUNSEL COMMUNICATION MAY MAKE IT DIFFICULT TO

MAINTAIN PRIVILEGE OF INFORMATIONGATHERED

ROOT CAUSE INFORMATION GATHERED IN INCIDENT REPORTS MAY REVEAL CM’S LIABILITY

HOW DO YOU MAINTAIN CULTURE OF COMMUNICATION AND PROTECT FUTURE LIABILITY IF LITIGATION DOES OCCUR?? 10/20/2015

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2-STEP INCIDENT REPORTING PROCESS BRIEF INCIDENT REPORT IS RECEIVED FROM

FIELD TEAM– CONTAINS INFORMATION (AND PHOTOGRAPHS)

FOR GOOD DISCUSSION OF INCIDENT FOR COMMUNICATION AND PREVENTION

– AVOID “EDITORIALIZING”; JUST THE FACTS….. INCIDENT REPORT BECOMES BASIS OF TRIAGE

BY CM’S CLAIMS TEAM 10/20/2015

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INVESTIGATION OPTIONS IF ADDITIONAL INVESTIGATION IS REQUIRED,

OPTIONS EXIST:

– 1. INTERNAL FIELD INVESTIGATION– 2. THIRD-PARTY INVESTIGATION ORDERED BY – CARRIER/TPA – 3. ATTORNEY-LED, THIRD-PARTY INVESTIGATION

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IS ADDITIONAL INVESTIGATION REQUIRED?

SIGNIFICANT PROPERTY DAMAGE

SEVERE / MAJOR INJURY PEDESTRIAN INJURY OFF-SITE MEDICAL CARE LOST TIME GRAVITY/STRUCK-BY

DEBRIS/LIGHTING RELATED

LATE REPORTING WHAT ELSE???

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PROS AND CONS OF INVESTIGATION METHODS

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Pros ConsField Investigation • Low First Cost

• Immediate response time• Workers may be more comfortable with CM staff

• May not be privileged• Less than expert data collection and interviews• Bias due to connection with work or fear of reprisal• Most inconsistent quality

3rd Party Investigation • Detailed data collection and interviews• Independent, lack of bias• Comfortable with difficult questions• Experienced witness• Consistent quality• Improves likelihood of being privileged

• Some delay in response time• Higher first cost

Attorney-led, 3rd Party Investigation

• All the “pros” of 3rd party investigation, plus…• Data collection and interviews will be most focused on

creating affirmative defense• Additional cost is negligible if investigation leads to

advantaged settlement or trial win• Most likely to be privileged

• Highest first cost• More potential for delay in response time

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ENSURE PERSONAL/PROPERTY SAFETY

APPROPRIATE TREATMENT FOR INJURED OBTAIN CLEARANCE SAFETY/EMERGENCY EMERGENCY IS ABATED VACATE AND PROTECT ACCIDENT SCENE

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WHAT ARE THE NEXT STEPS? DETERMINE LOCATION/WORK PERFORMED IDENTIFY INVOLVED PARTIES/EQUIPMENT COLLECT STATEMENTS OF EYEWITNESSES

(FOREMAN, SUPERVISOR, CO-WORKERS) WHAT INSTRUCTION PROVIDED TO WORKER? GET EXPERT

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WHEN IS EXPERT NEEDED NECESSARY FOR PROPER INVESTIGATION SERIOUS FALLS/INJURIES INCIDENTS WHERE EXPERT NEEDED AT TRIAL CHANGES IN CODES/REGS SAVES MONEY – DOCUMENTS NEEDED/NOT NEEDED DEVELOP THEMES EARLY

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PROTECTING THE EVIDENCE

TAG AND PRESERVE EVIDENCE PHOTOGRAPH AND MAKE WRITTEN RECORD GET SIGNED/AUDIO STATEMENT FROM INJURED

WORKER OBTAIN KEY DOCUMENTS

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RETAIN EVIDENCE WRITTEN INSTRUCTIONS TO WORKER ALL SAFETY EQUIPMENT/RECEIPTS/PRIOR USE

INFORMATION ALL DOCUMENTATION THAT EQUIPMENT

WAS FREE OF DEFECTS/STORAGE INFORMATION

PHOTOGRAPHS, E.G., SAFETY DEVICE IN EXACT MANNER USED

OTHER EQUIPMENT AVAILABLE/PHOTOS 10/20/2015

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WHAT TO INCLUDE IN ACCIDENT REPORT DESCRIPTION BASED ON INVESTIGATION LOCATION/EQUIPMENT INVOLVED/AVAILABLE WITNESSES DO NOT DIAGNOSE INJURY AVOID “TBD,” “INVESTIGATION TO FOLLOW”

AND IDENTITY OF INVESTIGATOR/COUNSEL WORKER/UNENROLLED SUBCONTRACTOR

FAULT 10/20/2015

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#IRMI2015

RISK TRANSFER OPTIONS NECESSARY COMPONENT OF ALL INCIDENTS EMPLOYER ENROLLED IN CCIP/OCIP OTHER TRADES IN AREA DETERMINE CAUSE OF DEBRIS/ICE/WATER/SLIPPERY

SUBSTANCE LIGHTING/DEMO/PROFESSIONAL ACTIVITIES IMMEDIATE/EARLY INVESTIGATION LEADS TO QUICK

RISK TRANSFER OPPORTUNITIES 10/20/2015

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CASE STUDIES

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#IRMI2015

ELECTRICIAN ACCIDENT WORKER SUSTAINED 3RD DEGREE ARC BURNS CONNECTING WELDING PIGTAIL IN PANEL BOX ACCIDENT SCENE PRESERVED INVESTIGATION CONDUCTED DEFEATED PRE-ACTION DISCLOSURE MOTION FULL PASS THROUGH FROM UNENROLLED SUB INDEPENDENT EVIDENCE COLLECTION

COMPANY REMOVED AND STORED PANEL BOX 10/20/2015

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LADDER FALL CASE

CARPENTER FALLS WHILE USING A-FRAME LADDER

INVESTIGATION/ACCIDENT RECONSTRUCTION REVEALS LADDER NOT FULLY EXTENDED

SPREADERS NOT LOCKED INSTRUCTED TO USE BAKER SCAFFOLD SCAFFOLD PRESENT LESS THAN 6 FT AWAY

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IRONWORKER FALL ACCIDENT WORKER CUTTING SHEETS OF DECKING SLIPPED

ON FIREPROOFING FELL 12 FEET WORKER WEARING HARNESS BUT NOT TIED-OFF INVESTIGATION LOCATES EMPLOYER SAFETY

MEETING – DIRECTING TIE-OFF WORKER STOOD ON DECK HE WAS REMOVING

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DEFECTIVE LADDER RUNG CASE WORKER FALLS ONE LEVEL FROM 32 FOOT

EXTENSION LADDER INSPECTION REVEALS LADDER RUNG DEFORMED

AND IN VIOLATION OF CODE PROVISION/EXPERT INVESTIGATION SECURES STATEMENT FROM

INCIDENT WORKER WORKER’S STATEMENT AND MARKED PHOTO

CONFIRM WORKER FELL FROM NON-DEFECTIVE RUNG

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ABATEMENT HANDLER ACCIDENT REMOVING PRECAST PANEL ATTACHED TO CHAIN

FALL IN CONTAINMENT WORKER WAS STRUCK BY PRECAST PANEL PROPER INVESTIGATION REVEALED OTHER

PREVIOUSLY REMOVED PANEL STORED ON DOLLY

LABOR LAW 240 LIABILITY HINGES ON WHICH PANEL HIT PLAINITFF 10/20/2015

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SUMMARY DON’T UNDERESTIMATE THE IMPORTANCE OF A

PROPER POST-ACCIDENT INVESTIGATION-PARTICULARLY WHAT SEEM LIKE SMALL CASES

FOLLOW PROPER INCIDENT INVESTIGATION TECHNIQUES - COMPLETE THE JOB

DEFEATING FUTURE CLAIMS REQUIRES THOROUGH INVESTIGATION

USE THE IMMEDIATE POST ACCIDENT INVESTIGATION TO GET PICK-UPS 10/20/2015

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Notes

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W4. Litigation Management Following a Construction Site Accident

Rating scale for all questions:

4 = Excellent 3 = Very Good 2 = Average 1 = Somewhat Disappointing 0 = Very Disappointing

Overall rating for this workshop? 4 3 2 1 0

John Alicandri Preparation and quality of information 4 3 2 1 0

Energy and enthusiasm of delivery 4 3 2 1 0

Educational focus (not a sales pitch) 4 3 2 1 0

David R. Perini Preparation and quality of information 4 3 2 1 0

Energy and enthusiasm of delivery 4 3 2 1 0

Educational focus (not a sales pitch) 4 3 2 1 0

Christopher Ruggiero Preparation and quality of information 4 3 2 1 0

Energy and enthusiasm of delivery 4 3 2 1 0

Educational focus (not a sales pitch) 4 3 2 1 0

Comments (use reverse side if extra space is needed): __________________________________________________________________________________________

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