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Construction Risk Management Table of Contents
Construction Risk Management
Construction Risk Management Tips
Release Notes
I: Introduction to Risk Management
o Introduction to Construction Risk Management
Risk Management Process
Risk Identification
Risk Analysis
Designing the Risk Management Strategy
Implementation
Review
Summary
o Tips for Controlling Insurance Costs
Auto
Liability
Workers Comp
Experience Rating
Property
Claims
Miscellaneous
o The Construction Industry
Industry Dynamics
Contractual Relationships
Job Acquisition
Construction Contracts
Construction Risk Management
o Construction Industry Training Survey
Survey Highlights
Challenges for the Field
Challenges for Management
Training
Budgets
Return on Investment
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Technology
Conclusion
II: Administration
o Selecting an Insurance Representative
Distribution Systems
Compensation
Service
Marketing Insurance
Risk Management Review
Loss Control
Policy Review
Service after Separation
Miscellaneous
Service Agreements
o The Competitive Proposal Process
The Decision Process
Suggested Frequency
Issuing a Request for Proposals
Common Renewal Date
Preparing the Specifications
Number of Invitations
Prequalifying Producers
Maintaining Competition
Market Allocation
Proposals
Awarding the Account
o Managing Insurance and Risk Management Information
Uses of Risk Management Information
Improved Risk Financing Decisions
Improved Bargaining Position
Loss Control Costs
Record of Coverage
Detection of Errors
Risk Allocation
Due Diligence
Processing Risk Management Data
Items Requiring Immediate Attention
Items To Be Maintained Long-Term
Summary
o Documenting Coverage History
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Discovering Hidden Assets
Making Details Count
Getting the Most from Internal Sources
Using External Sources
Analyzing Your Findings
Finding Needles in a Haystack
o Insurer Solvency
Costs of Insolvency
Personnel Time
Duplicate Premiums
Unplanned Retention
Disruptions in Cash Flow
Premium Increases
E&O Claims
Identifying Financially Troubled Insurers
Contributing Factors
Sources of Information
Rating Services
Risk-Based Capital Requirements
Ratio Analysis
Minimizing the Impact
Preinsolvency
Post-Insolvency
Summary
o Developing a Risk Management Manual
Minimum Features
Guidelines for Manual Writing
Procedures, Checklists, Forms
Systems and Synergy
The Manual Index
o Job Costing Construction Insurance Costs
Direct versus Indirect Costs
Variability in Insurance Costs
Commencing the Ins. Job Cost Process
The Insurance Bid Model
Workers Compensation
Experience Modification Factors
Premium Discount
General Liability
Premium Discount
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Fixed Insurance Expenses
Umbrella Coverage
Flat Umbrella
Auditable Umbrella
Retained Losses
Midterm Loading Adjustments
Retrospectively Rated Ins. Programs
Contract Review (Identifying Additional Ins. Needs)
Broker/Agent Role in Job Costing
Summary
o Using Risk Management Consultants
Services Offered
Costs
How To Select a Consultant
Agents, Brokers, and Service Providers as Consultants
Some Advice for Agents and Brokers
o How To File Claims: Start to Finish
Common Reporting Conditions
Insured's Investigative Duties
Standards of Reporting Promptness
Maximizing Recovery--Working with Adjusters
Liability Claim Reporting Considerations
Coverage Problems--Property Losses
Coverage Issues--Liability Losses
Post-Reporting Follow-Up
Keep Tabs on the Claim
Check Reserves
Check Insurer Supervision
Hold a Meeting
Summary
o Claim Auditing
The Need for Claim Auditing
Quantitative Auditing
Qualitative Auditing
Three-Dimensional Claim Auditing Methodology
Walk-Through
Summary
o Alternative Dispute Resolution
When Is ADR Appropriate?
When Is ADR Not Appropriate?
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Advantages of ADR
Speedy Resolution
Offers Options
Less Costly
Provides Confidentiality
Types of ADR Proceedings
Arbitration
Court Annexed Proceedings
Voluntary Settlement Conference
Mediation
Mini-Trial
Summary
o Cost Allocation
Setting Objectives
Accountability versus Stability
Credibility
Experience Period
Allocation Cap
Maximum Annual Change
Timing of Allocations
Allocating Risk Management Costs
Retained Losses
Insurance Premiums
Loss Adjustment Expenses
Loss Control Expenses
Risk Management Overhead
Allocation Examples
Pure Exposure Allocation
Pure Experience Allocation
Blended Allocation
Multiyear Experience Period
Allocation Cap
Funding
Special Considerations
Acquisition of a New Division
Change in Management
End-of-Year Balances
Road Map to Change
o Employee Leasing
The Leasing Decision
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Benefits of Leasing
Choosing a Leasing Company
Regulation of the Employee Leasing Industry
Licensing Requirements
Workers Compensation and Employers Liability Insurance
Issues for Commercial General Liability (CGL) Insurance
III: Loss Exposures and Underwriting Considerations
o Loss Exposure and Underwriting Review
General Overview
Workers Compensation
General Liability
Automobile Liab. and Physical Damage
Professional Liability
Physical Damage to the Work
Damage to Contractor's Equipment
Physical Damage to Owned, Rented, or Leased Property
Additional Underwriting Considerations
Loss Exposures and Underwriting Considerations
Highway/Heavy Contractors
Building Contractor--General
Building Trade Contractors
Utility Contractors
o Unmanned Aircraft Exposures
What Is a Drone?
Potential Uses for Drones
Primary Risk Exposures
Regulation of Drones
Request for Exemption--Commercial Operations
FAA Draft Regulations
State Laws
Drone Safety and Best Practices
Best Practices for Drone Operations
Follow a Strict Maintenance Schedule
Prepare and Stick to a Mission Plan
Conduct a Preflight Inspection
Check Weather Conditions
Use a Visual Observer
Hold a Debriefing
Keep a Flight Log
Insuring Drone Risks
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o Workers Comp Law Summary
Type of Law
Exclusive Remedy
Insurance Requirements
Monopolistic State Funds
Competitive State Funds
Penalties for Failure To Secure Benefits
Covered Employments
Employees Not Covered
Independent Contractors
Employee Leasing
Sole Proprietors, Partners, Executive Officers, & LLCs
Elective Coverage
Suits Against Third Parties
Waiver of Subrogation
Injuries Not Covered
Occupational Disease
Extraterritorial Application
State Workers Compensation Resources
o Post-Completion Problems and Completed Operations Risks
Contract Claim or Tort Claim?
The "Economic Loss" Rule--Tort Actions
Contract Claims--Warranties
Statutes of Limitations and Statutes of Repose
Statutes of Limitations
Statutes of Repose
Tolling the Statutes
Mergers, Acquisitions, and Successor Liability
Asset Sale and Stock Sale
Completed Operations Insurance
Is Construction Defect an "Occurrence" under CGL Policies?
o Limitations of Actions--Contract and Tort Claims
Statutory Time Restrictions
Background
Application
Tolling the Statutes
Statutes of Repose for Contract Actions, Tort Actions, or Both
Conflicting Statutes
Construction Industry Statutes of Repose Limitations
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o Independent Contractor Liability
Control of the Details
Selection of the Contractor
Dangerous Activity
Minimizing Independent Contractor Liability
Indemnification and Insurance Requirements
o Legal Implications of Construction Joint Ventures
Advantages of a Joint Venture
Joint Venture Agreement
Duties and Liabilities Among Joint Venturers
Liability of Joint Venturers to Third Persons
Termination of a Joint Venture
Conclusion
o The Third-Party Beneficiary Principle
Incidental Beneficiaries
Third-Party Beneficiary Status of Project Owner Affirmed
Failure To Post Statutory Payment Bonds
Exclusion of Third-Party Beneficiaries
Employees of Contractors
Conclusion
o Punitive Damages
Historical Perspective
Constitutionality of Punitive Damages
Caselaw
States' Positions on Punitive Damages
Burden of Proof for Recovering Punitive Damages
Insurability of Punitive Damages
o Consequential Damages
Contemplation of the Contracting Parties
Contractual Limitation of Liability
o U.S. Longshore and Harbor Workers' Compensation Act
Eligibility
Covered Injuries and Diseases
Benefits
Disability
Death
Medical
Insuring LHWCA Exposures
Rates
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Self Insurance Requirements
Penalties for Failure To Provide Coverage
o Authority and Responsibility of the Design Professional
Claims Against Design Professionals
Preparation of Drawings and Specifications
Approval of Materials
Approval of Submittals
Administration of Work and Processing Applications for Payment
Initial Decision Maker
Design-Build Liability
Conclusion
o Environmental Risks in Contracting
Theories of Liability
Negligence
Misrepresentation
Breach of Contract
Superfund Liability
The Government Contractor Defense
Conclusions
o Design-Build on Environmental Remediation Projects
Overview of Design-Build on Remediation Projects
Owner's Risks and Benefits
Design Builder's Risks and Benefits
Key Contract Terms
Scope of Work and Related Terms
Pricing and Payment Issues
Changes
Differing Site Conditions
Time-Related Issues
Limitations of Liability and Indemnification
Performance Guarantees and Bonds
Techniques To Avoid Liability
o Americans With Disabilities Act
The Americans with Disabilities Act Amendments Act of 2008
Definitions
Major Requirements
Title I - Employment
Title II - Public Entities
Title III - Public Accommodation
Title IV - Telecommunications
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Title V - Miscellaneous Provisions
The Risk Manager's Role
o Mergers and Acquisitions
Risk Management Concerns
Pollution Liability
Successor Liability
Liability for Failure To Warn
Risk Financing Arrangements
Captives
Self-Insurance Programs and Deductibles
Open Retros
Experience Rating
Directors & Officers Liability
Insuring D&O Liability
Other Problems
Mergers & Acquisitions Risk Mgmt. Checklist
o Employment Practices Liability Exposures
Discrimination
Disparate Treatment Discrimination Claims
Disparate Impact Discrimination
Wrongful Termination
Violation of Public Policy
Breach of Express or Implied Contract
Breach of an Implied Covenant of Good Faith
Sexual Harassment
Quid Pro Quo Sexual Harassment
Hostile Environment Sexual Harassment
Sexual Harassment and Office Romances
Retaliation
Elements of a Retaliation Claim
Sarbanes-Oxley Act of 2002
Inappropriate Workplace Conduct
Assault and Battery
Breach of an Employment Contract
Bullying
Coercion
Defamation
Fraud/Misrepresentation
Inappropriate Use of Electronics
Inappropriate Use of Social Media
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Intentional Infliction of Emotional Distress
Invasion of Privacy
Workplace Negligence
Negligent Evaluation
Wrongful Deprivation of a Career Opportunity
Wrongful Discipline
Wrongful Failure To Employ
Wrongful Failure To Grant Partnership/Tenure
Wrongful Failure To Promote
Other Statutory EPL Exposures
The Fair Labor Standards Act (FLSA) of 1938
The Worker Adjustment and Retraining Notification (WARN) Act of 1988
The Family and Medical Leave Act (FMLA) of 1993
The Uniformed Services Employment and Reemployment Rights Act
IV: Loss Control
o Loss Control
Leadership in Loss Control
Safety Inspector's Checklist for Job-Site Safety Program
o Substance Abuse Programs
Policy Development
Assess Needs
Set Goals
Define Scope
Establish Detection Procedures
Testing and Searches
Establish Penalties for Violations
Establish Procedures for Appeals
Supervisor Training
Employee Education
Treatment
Employee Assistance Programs
Putting It All in Writing
Substance Abuse Policy Checklist
o IMUA Loss Control Guides: Builders Risk and Contractors Equipment
Builders Risk Guide to Loss Prevention
Contractors Equipment Guide to Loss Prevention
Disclaimer of Liability
Contractor's Equipment Guide Summary Checklist
o Asbestos Management and Loss Control
Health Effects of Asbestos
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Asbestos Regulations
Occupational Safety and Health Administration Standards
Environmental Protection Agency Standards
Asbestos Management Options
Inspection of Properties
Relocate or Stay
Ongoing Air Monitoring
Asbestos Removal
Operations and Maintenance Program (O&M)
Asbestos Substitutes
Survey and Risk Assessment
Sampling and Analytical Methods
Clearance Criteria
Asbestos Abatement
Encapsulation
Enclosure
Removal
Procedures To Control Asbestos During Maintenance
General Procedures
Working with Asbestos/Cement Products
Cutting and Drilling
Cleanup And Waste Disposal
Equipment
Waste Disposal
Personal Protective Equipment
Insurance
Selecting an Asbestos Consultant
o Human Factors Loss Control in the Construction Industry
The Cost of Occupational Stress
Stress and Accidents
Breaking the Distress Cycle
A New Approach to Risk Management
Human Factors Loss Control Programs
Preemployment Screening for Theft, Violence, and Drug Abuse
Employee Assistance Programs
Injured Employee Management
Use of Rehabilitation Specialists
Program Evaluation
Behavior Checklist for Identifying Distressed Workers
o Hazard Communication
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Evolution of the Hazard Communication Standard
Scope of HCS 2012
Employer Responsibilities for Hazard Communication
Prepare a Hazardous Materials List
Safety Data Sheets
Labeling of Hazardous Materials
Education and Training
Written Hazard Communication Program
o Construction Fleet Management
Problems Unique to the Construction Fleet
Components of a Fleet Management Program
Administration and Supervision
Fleet Management Policy Statement
The Role of the Fleet Manager
The Fleet Review Committee
Driver Selection
Formal Program Regulations and Procedures
Accident Reporting
Investigation and Corrective Action
Vehicle Maintenance
Recordkeeping and Statistics
Employee Motivation
Summary
o Disaster Planning
Planning Steps
o Media Management in Emergency Situations
Selecting a Spokesperson
Communicating with Reporters
Summary
o General Guidelines for Construction
Clothing and Personal Protective Equipment
Housekeeping
Ladders
Welding and Burning
Maintenance, Use, and Storage of Tools
Scaffolds
Storing and Handling of Material
Temporary Wiring, Lighting, and Heating
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o Employment Practices Liability Loss Control
General Recommendations
Hire Carefully
Test for Skills
Test for Character
Use Protective Legal Documents
Require Mandatory Arbitration Agreements
Train Managers and Employees in Human Relations
Be Proactive in Identifying Problems
Acknowledge Problems Immediately
Implement a Procedure for Providing References
Maintain Employee Privacy
Obtain Help When Needed
Use Established Agencies When Hiring Leased or Temporary Employees
Preventing Discrimination Claims
Preventing Sexual Harassment Claims
Developing a Sexual Harassment Policy
Communicating the Policy
Training Supervisors and Employees
Developing a Confidential Complaint Procedure
Investigating Complaints
Use Caution in Documenting Investigations
Take Appropriate Actions Following Investigations
Continuously Review the Policy
Preventing Wrongful Termination Claims
Interviewing and Background Checking
Avoiding Assurances of Permanent Employment
Use Legal Counsel To Review Employer-Produced Material
Include a "Management Rights" Provision
Periodic Performance Evaluations
Record Warnings in Personnel Files
Avoid Knee-Jerk Terminations
Consider Alternatives to Termination
Be Consistent in Making Termination Decisions
Educate Managers on Termination Procedures
When and Where To Fire
Have the Appropriate Paperwork Ready
Using Counseling, Employee Assistance, and Outplacement Programs
Preventing Claims Associated with Special Employment Situations
Claims Associated with Stock Options
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Preventing Retaliation Claims
Preventing Claims from Corporate Downsizing
Preventing Claims from Electronic Exposures
V: Risk Financing
o Overview of Risk Financing
o Workers Compensation Experience Rating
The Purpose of Experience Rating
Experience Rating Period and Eligibility
Ownership
Combination of Entities
Ownership Changes
Past Experience Excluded
Joint Ventures
Additional Considerations with Ownership Changes
Use of Professional Employment Organizations (PEOs)
Corrections to an Experience Modification Factor
Application of Experience Modification
Changes in Experience Modifications
Reading the Experience Modification Work Sheet
Primary Loss "Split Point"
Experience Modification Factors and Safety
Controlling Experience Modifiers
o Guaranteed Cost Insurance
Premium Discounts
Schedule Rating
Experience Rating
Deductibles
Liability Deductibles
Workers Compensation Deductibles
o Loss Sensitive Insurance Plans
Considerations for Electing a Loss Sensitive Program
Retrospective Rating Plans
Retrospective Rating Methodology
Retrospective Period
Analyzing Retrospective Plans
Retrospective Rating Cost Control Considerations
Canceling a Retro
Dividend and Retention Plans
Sliding Scale Dividend Plans
Retention Plans
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Dividend Payment Schedules
Potential Conflict of Interests in Loss Sensitive Plans
o Cash Flow Plans
Expected Loss Retrospective Rating
Paid Loss Retrospective Rating
Paid Loss Retro Calculation Example
Loss of Use Charge
Cash Flow Implications of Paid Loss Retros
Compensating Balance Plans
Cash Flow Implications
o Large Deductible Plans
Program Structure
Payment Options
Collateralization
Defense Costs
Taxes, Assessments, and Service Charges
Deductible Plan Buy Outs
State Regulations
Insurer Filing Requirements
Advantages of Large Deductible Plans
State Approval Not Required
Claims Handling Services
Low Start-Up Costs
Incentive for Loss Control
Effect of Large Deductibles on Experience Rating
Disadvantages of Large Deductible Plans
Risk of High Losses
Risk of High Service Charges and Assessments
Defense Costs
Issues with Cancellation or Nonrenewal
Medicare Secondary Payer Law Requirements
o The Alternative Market
Growth in Alternative Markets
Risk Retention Groups
Regulation of RRGs
Membership Criteria
Advantages and Disadvantages of RRGs
Evaluation Criteria
Group Self-Insurance for Workers Compensation
Regulation of Workers Compensation Self Insurance Groups
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Eligibility Requirements
Advantages and Disadvantages
Excess Insurance
AGC Self-Insured Workers Compensation Funds
Captive Insurance Companies
When Do Captives Make Sense?
Types of Captives
Fronting Arrangements
Choice of Domicile
Advantages and Disadvantages of Captives
o Self-Insurance
Program Structure
Lines Included
Funding for Self Insurance
Services and Administration
Keys to an Effective Self-Insurance Program
Regulatory Constraints on Self-Insurance
Advantages and Disadvantages of Self-Insurance
o Tax Implications of Risk Financing Options
Is There a "Risk Transfer"
Commonly Accepted Notions of Insurance
"Insurance Risk"
Risk Shifting and Risk Distribution
Guaranteed Cost Insurance
Retrospectively Rated Insurance
Large Deductible Plans
Self-Insurance
Captives
o Choosing Among Competing Retros
Forecasting Losses: The Initial Step
Evaluation Criteria
The "Holding Power" Formula
The Retrospective Accounting Formula
Retrospective Rating Plan Evaluation: A Case Study
Conclusion
o The Plan Comparison Matrix
Explanation of Comparison Points
Risk Financing Plan Considerations
Using the Matrix
o Arranging a Cash Flow Plan
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Conceptualization
Design
Implementation
Operation
o Financial Analysis of Cash Flow Programs
VI: Insurance
o Introduction to Insurance
Standard, Nonstandard, and Manuscript Forms
Standard Forms
Nonstandard Forms
Manuscript Forms
Policy Format
Declarations
Insuring Agreement
Covered Perils
Exclusions
Definitions
Conditions
Endorsements
Insurance Policy Review
Construction Insurance Programs
Casualty Insurance
First-Party Property Insurance
Matching the Insurance with the Exposures
Direct Damage Loss Exposures
Indirect Property Loss Exposures
Liability Loss Exposures
Personnel Loss Exposures
Liability Coverage Triggers
"Occurrence" Coverage Trigger
Claims-Made Coverage Trigger
Summary
o Auto Insurance
Coverages and Covered Autos
Coverage Symbols
Liability Coverage
Insuring Agreement
Exclusions
Limit of Insurance
Physical Damage Coverage
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Exclusions
Limits of Insurance
Deductibles
Additional Coverage
Medical Payments
Uninsured and Underinsured Motorists
No-Fault Auto Insurance
Policy Conditions
Duties in the Event of a Loss
Other Insurance
Subrogation
Cancellation
Coverage Territory
Endorsements and Modifications
Standard Endorsements
Manuscript Endorsements
Car Rental Concerns
Classification
Business Auto Coverage Checklist
o General Liability Insurance
Bodily Injury and Property Damage (Coverage A)
Coverage A Insuring Agreement
Coverage A Exclusions
Coverage A Exclusions (continued)
Fire Legal Liability Coverage
Personal and Advertising Injury (Coverage B)
Insuring Agreement
Exclusions
Medical Payments (Coverage C)
Medical Payments Exclusions
Supplementary Payments (Coverages A and B)
Defense of an Indemnitee
Who Is an Insured
Changes To Consider
Additional Insured Endorsements
Limits of Insurance
Products-Completed Operations Hazard
Designated General Aggregate Limit Endorsement
Designated Project or Premises Endorsement
Order of Payment--Other Insurance
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Primary and Noncontributory Endorsement
Other Common CGL Endorsements--Construction
Unintentional Failure To Disclose Hazards
Notice Requirements
Wrap-Up Exclusion Endorsement
Mold Exclusion
EIFS Exclusion
Terrorism Exclusions
Explosion, Collapse, Underground Property Damage Exclusion
Construction Management Errors and Omissions Exclusion
Professional Liability Exclusions
Employment-Related Practices Exclusion
Unmanned Aircraft (UA) Endorsements
Discontinued Operations
General Liability Coverage Checklist
o Insuring Joint Venture Liability
Background on Joint Venture Coverage
Insuring Joint Ventures
Current Joint Ventures
Past Joint Ventures (Completed Operations)
Blanket Coverage--All Losses
Rating Considerations
o Construction Defects Coverage
Common Types of Claims
Basis for Liability
Coverage Issues
Elements of a Covered Loss
Summary of Coverage under Basic CGL Policy Form
Insurance Industry Response
EIFS Exclusions
Mold Exclusions
Residential Construction Exclusions
Subcontractor Exclusion Endorsements
Contractor Limitations Endorsements
"Right To Repair" Statutes
o Directors & Officers Liability Insurance
D&O Exposures
Duty of Loyalty
Duty of Care
Derivative Suits
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Securities Law Violations
Other Statutory Claims
D&O Coverage for Privately Held Companies
Potential Claimants
D&O Insurance
Directors and Officers Liability Coverage ("Side A")
Definition of Wrongful Acts
Corporate Reimbursement Coverage ("Side B")
Entity Coverage ("Side C")
Exclusions
Dishonesty Exclusions
Wage and Hour Claims Exclusion
Insured versus Insured Exclusion
Personal Profit Exclusion
"Short Swing Profits" Exclusion
Return of Remuneration Exclusion
ERISA Act Liability Exclusion
Loss Insured under Another Policy
Employment Practices Liability Exclusion
Pollution Exclusion
Security Holder Exclusion
Bodily Injury, Property Damage, and Personal Injury Exclusion
Prior/Pending Litigation Exclusion
Failure To Insure Exclusion
Nonimputation Provisions in Policy Exclusions
Insurer's Defense Obligations
Duty To Defend
Defense within Limits
Severability of Interests
Policy Limits, Deductibles, and Retentions
Retentions
Coinsurance
Cancellation and Nonrenewal
Subrogation
Other Insurance
Arbitration Provisions
Presumptive Indemnification Provision
Side A-Only D&O Policies
Distinctive Aspects of Private Company D&O Forms
Packaged Approach
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Flexibility in Limits and Retentions
Broad Entity Coverage
Duty To Defend
Cancellation and Nonrenewal Provisions
Extended Reporting Provisions
o Workers Comp & Employers Liability Insurance
General Section
Who Is an Insured
Covered Workplaces
Definitions Regarding Applicable Law
Part One--Workers Compensation Insurance
Insured's Payments
Subrogation
Subcontractors
Part Two--Employers Liability Insurance
Coverage Criteria
Exclusions
Limits of Liability
Part Three--Other States Insurance
Endorsements
Workers Comp Coverage Checklist
o Terrorism Insurance
Terrorism Risks and the Insurance Market
TRIA Provisions
Payment of Losses
Cost
Terrorism Endorsements
Commercial Property Endorsements
General Liability Endorsements
"Conditional" and "Post-TRIA" Endorsements
Workers Compensation Endorsements
Other Coverage Lines
Stand-Alone Terrorism Coverage
Managing Terrorism Risk
Threat Identification and Initial Site Assessment
Risk Assessment
Risk Management
Insurance Purchasing Decision
Summary
o Umbrella Liability Insurance
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The Need for Umbrella Insurance
Basic Umbrella Terminology
Umbrella versus Excess Coverage
Follow Form versus Stand-Alone Coverage
Umbrella/Excess "Capacity"
Schedule of Underlying Insurance
Functions of an Umbrella Policy
The Insuring Agreement
Amount Payable
Attachment Point
Who Is an Insured
Covered Damages
"Occurrence" versus "Offense"
Coverage Territory
Duty To Defend
Method of Providing Coverage
Exclusions
Aircraft/Watercraft Liability
Autos Not Covered by Underlying Insurance
Contractual Liability
Cross Liability (Insured versus Insured) Claims
Nonspecified Classifications Exclusion
"Damage to Property" Exclusions
Care, Custody, or Control (CCC)
Damage to Property Being Worked Upon
Damage to "Your Work"
Damage to "Your Product"
Explosion, Collapse, or Underground Property Damage (XCU)
Designated Operations
Employers Liability
Environmental Hazards
Pollution
Professional Services
Project Insured by a Wrap-Up
Residential Construction Operations
Subsidence
Joint Ventures
Rented or Leased Equipment
Contractors Limitations Endorsements
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Limits of Insurance
Per Occurrence Limits
Aggregate Limits
Defense Costs
Selecting Umbrella/Excess Limits
Policy Conditions
Notice of Occurrence and Notice of Claim
Subrogation
Separation of Insureds
Maintenance of Underlying Insurance
Other Insurance
Subcontractor Warranties
Umbrella Liability Coverage Checklist
o Commercial Property Insurance
Standard, Insurer, or Manuscript Forms
Policy Structure
Insuring Agreement
Covered Property
Covered Locations
Covered Causes of Loss
Other Important Provisions
Time Element Coverages
Time Element Exposures
Insuring the Time Element Exposure
Extra Expense Coverage
Rental Value Coverage
Contingent Extra Expense Coverage
Separate Coverages To Consider
Valuable Papers and Records
Accounts Receivable
Package Policies
Commercial Property Insurance Checklist
o Contractors Equipment
Covered Property
Definition of Contractor's Equipment
Property of Others
Newly Acquired Equipment
Excluded Property
Property Loaned or Rented to Others
Vehicles
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Waterborne Property
Covered Locations
Debris Removal and Pollutant Cleanup
Additional Coverages
Leased Equipment
Borrowed Equipment
Rental Reimbursement
Employees Tools and Work Clothing
Covered Perils
Named Perils Coverage
All Risks Coverage
Crane or Derrick Booms
Weight of Load
Terrorism Coverage
Limits
Deductibles
Valuation
Coinsurance
Contractors Equipment Coverage Checklist
o Crime Insurance
Standard Commercial Crime Insurance Programs
Contractors' Crime Loss Exposures
Employee Dishonesty Insurance
Covered Property
Covered Causes of Loss
Covered Employees
Prior Dishonesty Provisions
Employee Benefit Plans
Coverage Period: Loss Sustained versus Discovery Coverage
Limits and Deductibles
Exclusions
Kidnap, Ransom, and Extortion Coverage
Insuring Agreements
Exclusions
Coverage Territory
Coverage Period
Limits and Deductibles
Confidentiality Agreement
Notice Requirements
Commercial Crime Endorsements
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Commercial Crime Coverage Checklist
o Contractors Pollution Liability Insurance
Pollution Coverage under the CGL
Contractors Pollution Liability Markets
Coverage Triggers
Occurrence Triggers
Claims-Made Coverage Issues
Covered Pollution Incidents
Covered Damages
Coverage Territory
Covered Sites
Covered Operations
Covered Persons/Entities
Employees
Clients of the Named Insured
Joint Ventures
Newly Acquired Entities
Defense of Claims
Consent To Settle Provisions
Deductibles and Self-Insured Retentions
Mediation Credit
Limits
Notice of Claims
Notice of Cancellation
Waivers of Subrogation
Other Insurance
Separation of Insureds
Exclusions
Expected or Intended Acts
Known Conditions
Completed Operations
Naturally Occurring Substances
Transportation Exposures
Off-Site Storage or Disposal of Wastes
Damage to Property
Contractual Liability
Insured versus Insured Exclusions
Employers Liability
Contractors Pollution Liability Coverage Checklist
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o Contractors Pollution Liability Policy Analyses
ACE Insurance Company
American International Surplus Lines Insurance Company
American Safety Indemnity Company
Arch Specialty Insurance Company
Chubb Insurance Company
CNA Insurance Company
Evanston Insurance Company
Everest Reinsurance Company
Freberg Environmental, Inc.
Liberty Mutual Insurance Company
St. Paul Travelers Insurance Company
XL Insurance Company
Zurich Insurance Company
o Subcontractor Default Insurance
Insuring Agreement
Covered Persons/Entities
Coverage Trigger
Covered Contracts
What Constitutes a "Default"?
Policy Period
Covered Territory
Defining a Covered "Loss"
Direct Costs and Indirect Costs
Exclusions
Contracts Covered by a Bond
Prior Notice of Default
Acquired Contracts
Material Breach of Warranty or Covenant
Professional Negligence
Claims Process
Time Limits for Filing Claims
Interim Payments
Cost
Deductibles and Co-Pays
Limits
Multiple Defaults by a Subcontractor
Terms, Conditions, and Responsibilities
Qualification Procedures
Notice of Default
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Notice of Change in Ownership
Other Insurance
Cancellation
Underwriting Criteria
o Businessowners Policy
Contractor Eligibility
BOP Property Coverage
Covered and Excluded Property
Additional Coverages
Optional Coverages
Valuation and Coinsurance
Covered Causes of Loss
Limits
Deductibles
BOP General Liability Coverage
Covered Damages
Who Is an Insured
Coverage Territory
Exclusions
Limits
Limit Structure
Policy Conditions
Notice of Cancellation
Other Insurance
Premiums and Audits
BOP Endorsements
Additional Insured Endorsements
Amendment of "Insured Contract" Definition
Waiver of Subrogation Endorsement
Contractors' Installation, Tools and Equipment Coverage (BP 07 01)
Limits of Insurance Endorsements
Exclusionary Endorsements: BOP Liability Coverage
Businessowners Coverage Checklist
o Construction Insurance Checklists
VII: Builders Risk Insurance
o Introduction to Builders Risk and Installation Floater Coverage
Construction Contract Requirements
Responsibility for Purchasing Builders Risk Insurance
Coverage under Permanent Property Policies
Builders Risk Coverage Forms
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o Physical Damage to Covered Property
Covered Parties
Issues with Multiple Insureds
Covered Property
Temporary Structures
Property in Transit or in Off-Site Storage
Property of Others
Property Included in Values Reported to Insurer
Office Trailers
Other Property
Excluded Property
Existing Property
Contractors' Tools and Equipment
Land, Water, Trees, Plants, and Similar Types of Property
Signs
Airborne and/or Waterborne Property
Other Excluded Property
Covered Locations
Additional Coverages
Covered and Excluded Causes of Loss
Dishonest Acts
Wear and Tear, Etc.
Fungus, Wet or Dry Rot, and Bacteria
Asbestos Materials
Ordinance or Law
Flood, Earthquake, and Named Storm
Settling, Cracking, Expansion, or Contraction
Equipment Breakdown
Testing Exclusions
Faulty Workmanship or Materials
Design Error
Architects and Engineers Professional Services
Collapse
Loss Covered under Guarantee, Warranty, or Obligation
Terrorism
Termination of Coverage
Occupancy
Subrogation
Avoiding Subrogation Attempts
Architects, Engineers, Manufacturers, and Suppliers
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Protective Safeguards
Completed Value Form versus Reporting Form
Completed Value Form
Reporting Form
Valuation
Coverage for Overhead and Profit
Limits
Deductibles
Difference-in-Conditions Coverage
Other Construction-Related Coverages
Efficacy or Systems Performance Coverage
Force Majeure Coverage
Stipulated Loss Coverage
Builders Risk Coverage Checklist
o Delayed Completion/Soft Costs Coverage
Understanding the Terminology
What Is Covered
Denial of Access (Civil Authority)
Coverage for Expenses To Reduce Loss
Valuation Basis: Actual Loss Sustained
Coinsurance and Monthly Limitations
Exclusions
Limits and Deductibles
Indemnity Period
Arranging Delayed Completion Coverage
o The American London Sturge's Forms
History of the ALS Forms
ALS Forms and Coverage Comparisons
ALS/1967 Contractor's Installation or Builder's Risk Form
1972 ALS Contractors "All Risks" Form
Comparison of the ALS 72 Form to the ALS 67 Form
"Form" Comparison of ALS 67 and ALS 72
o Foreign Builders Risk
Markets
Contractors All Risk and Erection All Risk
Contractors All Risk
Erection All Risk
o Sue and Labor Claims
Language of Sue and Labor Provisions
Types of Covered Expenses
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Benefit to the Insurer
Reasonableness of Sue and Labor Efforts
Prudence in Sue and Labor Efforts
Conclusion
o Weather Damage to the Project Interior
Method of Construction
The Policy Language
Sufficient Enclosure
Mode of Access to Interior Property
Specified Elements
Proximate Cause of Loss
Conclusion
o Specified Peril Deductibles and Sublimits--Implications
Background
Common Issues in Coverage Disputes
Application of the Deductible/Sublimit
Amount of the Deductible
The Purpose of the Specific Clause
Conclusion
o Sequential and Concurrent Causes of Loss
Distinguishing Sequential and Concurrent Causes of Loss
Analyzing Sequential Causes of Loss
The Efficient Proximate Cause Standard
Analyzing Concurrent Causes of Loss
The Pro-Policyholder Standard
The Efficient Proximate Cause Standard
The Doctrine of Concurrent Causes Standard
Anti-Concurrent/Anti-Sequential Loss Provisions
Public Policy Implications
Other Implications
Conclusion
o Nonphysical Loss to Unbuilt Property
The Unbuilt Exposure
Builders Risk Coverage Analysis
Are Higher Costs of the Unbuilt Project Segment a "Loss"?
Does the Loss Involve "Covered Property"?
Is There a Covered Cause of Loss?
Examining Caselaw
Conclusion
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o Builders Risk Insurance and Waivers of Subrogation
Subrogation Against Insureds
Parties Protected by Waiver
Protection for Performance Bond Surety
Liability Insurance as "Other Property Insurance"
Time Period of Waiver
Property Subject to Waiver
Caselaw Broadly Applying Waiver
No Conflict between Waiver and Indemnity Obligation
Strategies for Avoiding Subrogation
o Issues in Builders Risk
Market for Builders Risk Insurance
Deciding on the Appropriate Forms
The Importance of a Good Foundation
Building versus Structure
Temporary Structure versus Contractors Equipment
Other Covered Property
External Loss--Meaning and Impact
VIII: Professional Liability
o Contractors Professional Liability Overview
o Contractors Design-Build Professional Liability
Traditional Design-Bid-Build Method
Design-Build Construction
Methods of Selection
Unique Characteristics of Design-Build
Disadvantages of Design Build
When Is Design Build Appropriate
Insurance Issues
Surety Issues
Design-Build Risk Management
o Coverage for Design Liability in Traditional Policies
Builders Risk Coverage
General Liability Coverage
Professional Liability Exclusion Endorsements
Umbrella Coverage
Professional Liability Insurance
Coordinating Coverages
o Contractors Professional Liability Insurance
Coverage Trigger
Retroactive Date
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Notice of Circumstance Provisions
Extended Reporting Period (ERP)
Covered Organizations
Newly Acquired Entities
Covered Persons
Covered Services
Covered Acts
Who Performed the Services?
When Were the Services Performed?
Where Were the Services Performed?
Covered Damages
Covered Territory
Policy Term
Exclusions
Express Warranties or Guarantees
Faulty Workmanship
Damage to Owned Property Exclusion
Contractual Liability
Pollution
Mold
Means and Methods of Construction
Delay or Cost Overruns
Defense and Settlement of Claims
Consent To Settle Provisions
Deductibles and Self-Insured Retentions (SIRs)
Multiple Related Claims
Mediation Credit
Limits
Policy Conditions
Notice of a Claim
Subrogation
Other Insurance
Cancellation
Protective E&O Insurance
Underlying Limits
Rectification Coverage
Rating
Project-Specific Professional Liability Insurance
o Contractors Professional Liability Checklist
o Contractors Professional Liability Policy Analysis
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o Employment Practices Liability Ins.
Coverage in Traditional Policies
General Liability Policies
Workers Compensation Policy
D&O Liability Policy
Analysis of EPLI Forms
Covered Persons and Organizations
Covered "Employees"
Covered Acts
Covered Damages
Covered Defense Costs and Claims Settlement Provisions
Defense Cost Provisions
Covered Territory
Policy Limits, Deductibles, and Coinsurance
Policy Limits
Deductibles
Coinsurance Provisions
Conditions
Arbitration Provisions
Definition of "Claim"
Other Insurance Provisions
Severability Provision
Exclusions
Criminal Fraudulent or Intentional Injury
Americans With Disabilities Act
Strikes and Lockouts
Wage and Hour Claims
Bodily Injury
Liability under Workers Compensation and Similar Laws
Contractual Liability
Prior Knowledge of Potential Claim Incidents
Claims Reported to Prior Insurers
Insurance Plan Benefits
WARN Act Liability
Nonpecuniary Relief
Breach of Express Employment Contracts
Coverage Triggers
Value-Added Provisions
Underwriting Considerations
o Employment Practices Liability Coverage Checklist
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IX: Wrap-Up/OCIP
o Introduction to Wrap-Ups
Background
Sponsorship
Benefits of a CIP
Reduced Litigation
Compliance with Regulatory Standards
Control of Insurance Coverage
Solving Insurance Availability Problems
Improved Productivity
Cost Control
Enhanced Ability To Use Small Contractors
What Constraints Apply to CIP Use?
Project Size
Control
Legal Jurisdiction
Costs
Ability and Inclination To Administer a Wrap Up
Runoff
Wrap-Up Do's and Don'ts
o Feasibility Study and Plan of Action
Who Should Perform the Study
General Guidelines
Jurisdictional Qualifications
Adequate Size
Multiple Contractors
Limited Number of Sites
Project Duration
Control of Contractors
Design for Safety
Site Security
Support for Risk Control
Plan of Action
Time Schedule
Required Services
Exposure Data and Risk Identification
Qualification and Selection of Service Providers
CIP Manager or Administrator
Insurance Broker
Insurer
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Risk Control Services
Medical Services
Claims Management Services
Contractors
o Insurance Program Design
CGL and Umbrella Liability Insurance
Limits of Insurance
Scope of Coverage
Insureds
Contractual Liability Coverage
Property Damage Liability
Completed Operations
XCU Coverage
Liability Deductibles
Other Considerations
Other Liability Coverages
Railroad Protective Liability
Professional Liability
Pollution Liability
Products Liability
Workers Compensation Insurance
Possible Coverage Extensions
Policy Issuance
Coverage Commencement and Termination
Builders Risk
Rating and Risk Finance Structures
Guaranteed Cost Insurance
Loss Sensitive Plans
Wrap-Up Captive
Cash Flow
Tax Implications
Term of Adjustment
Comments on Non-CIP Insurance
Standard Lines
Aircraft Liability
Design Errors and Omissions
Wrap-Up DIC Coverage
Contractors' Tools and Equipment
CIP Insurance Manual
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o Mitigating Contractor Concerns
Inequity in the Risk Allocation
Conflicts of Interest
Insurance Program Disruption
Complication of Bid Preparation
Inability To Receive Timely Loss Information
Audit and Claims Management Problems
Administrative Tasks
Coordination of Coverage
Risk Control Program Changes
o Contractor's Guide to Owner Controlled Insurance Programs
The Problem
The Solution
The Process
How To Use this Guide
Are any Firms, Operations, or Locations Omitted or Excluded?
Specific Firms or Operations
"Furnish and Install" Contractors
Staging Areas and Fabrication Facilities
Incidental Travel
Are any Periods of Time Omitted or Excluded?
Warranty Work and Callbacks
Extended Completed Operations
Are There any Other Omissions or Exclusions To Consider?
Automobile Liability
Design-Build Elements of the Project
Damage to the Work
Hazardous Materials and Other Pollutants
Aircraft or Watercraft
Contractor's Consequential Damages
Indemnification
Are There Adequate Limits on the Coverage?
Shared Limits of OCIP Coverage
Separation of Insureds
How Does the OCIP Relate to the Contractor's Insurance Program?
Primary and Excess Coverage
Difference in Conditions (DIC)
OCIP Exclusion from the Contractor's Regular Insurance Program
How Does a Contractor Calculate Its Premium Deductions?
Basis for Each Deduction
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Deductibles and Penalties
Insurance Credit Worksheet
Premium Overruns and Underruns
How Does the Owner Intend To Administer the OCIP?
OCIP Documents
Contractor's Responsibilities
Subcontractor Deductions
Safety Services
Certificates of Insurance
Premium Audits
Loss Runs and Loss Data
Experience Modifier Filings
Claims Management
Alternative Dispute Resolution
Broker/Carrier Service Agreements
What Other Issues Need To Be Addressed?
Mutual Waiver of Subrogation
Safety Incentives
Substance Abuse Programs
Return-to-Work Programs
Subcontracts and Letters of Intent
Changes in Program Policies
Appendix A - Checklist of "Things To Ask For"
Appendix B - Action List
o Wrap-Up Premium Auditing
Setting an Accurate Standard Premium
Premium Audits
Common Errors
Contractor Errors
Insurer Errors
Be on Guard
Conclusion
X: Contractual Risk Transfer
o Overview of Risk Transfer in Construction
Basics of Construction Contracting
Standard Construction Contracts
Goal of Risk Allocation
Contract Review and Negotiation
Risk Transfer Provisions
Indemnity (Hold Harmless) Provisions
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Limitation of Liability
Waiver of Recovery Rights
o Contractual Liability Coverage
Standard CGL Policy
The Insuring Agreement
The Contractual Liability Exclusion
Definition of "Insured Contract"
Other Policy Exclusions
Contractually Assumed Defense Costs
Contractual Liability Endorsements
Business Auto Policy
o Additional Insured Coverage
Purpose of Requiring Additional Insured Status
Problems with Hold Harmless Enforcement
Right to a Defense of Claims
Obtaining Broader Coverage
Commercial General Liability (CGL) Insurance
Named Insured versus Additional Insured
Standard Additional Insured Endorsements
Owners, Lessees, and Contractors
Engineers, Architects or Surveyors
Equipment Lessors (CG 20 28 and CG 20 34)
Designated Persons or Organizations
Order of Payment--Other Insurance
Nonstandard Endorsements
Limits of Insurance
Tips for Requesting Additional Insured Status
Additional Insured or Additional Named Insured?
Cross-Liability Coverage
Specify Required Scope of Coverage
Designated Limit
Mutual Additional Insureds
o Hold Harmless Agreements in the Construction Industry
Indemnification Agreements in General
Treatment of Indemnification Agreements in the Courts
"Public Policy" Rationale
Majority "Clear and Unequivocal" Approach
Minority "Express Negligence" Approach
Other Rules of Construction
Standard Form Indemnification Agreements
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AIA Document A201
Other A201 Indemnity Clauses
ConsensusDOCS Indemnity Provisions
ConsensusDOCS 200 Indemnity Clause
ConsensusDOCS Hazardous Materials Provisions
Standard Form Subcontract Indemnity Clauses
Incorporation by Reference
Duty To Defend Clarified
o Statutory Treatment of Indemnification Agreements
Insurance Provisions and Anti-Indemnity Statutes
Obligation To Defend
State Summaries
o The Third-Party-Over Action
The Problem
Contribution and Implied Indemnity
Express or Contractual Indemnity
Causes of Action Against Third Parties
Apportionment of Fault
Express Indemnity Agreements
Effect of Anti-Indemnity Statutes
Mechanics of the Third-Party-Over Action
Third-Party-Over Actions in the Construction Industry
Third-Party-Over Actions--No Additional Insured
Third-Party-Over Actions--No Indemnity Agreement
Summary
o Vicarious Liability & Additional Insured Coverage
What Is Vicarious Liability?
Scope of Coverage for Additional Insureds
The Case for Covering Another's Active Negligence
o Waivers of Subrogation
Waiver of Subrogation Defined
Related Property Ins. Policy Provisions
Typical Uses of Waivers of Subrogation in Construction
Equipment Floaters
Builders Risk
Insurance on Adjacent Property of the Owner
Insurance on the Completed Project
General Liability Auto and Workers Compensation
Waivers of Subrogation in Other Types of Contracts
Conclusion
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o Contract Insurance Requirements
Builders Risk Insurance
Who Purchases Coverage?
Who Is Covered?
Required Limit of Coverage
Scope of Coverage
Duration of Coverage
Deductibles
Order of Payment
Waiver of Subrogation
Other Required Property Coverages
Liability Insurance
Minimum Limits of Coverage
Who Is Covered?
Minimum Scope of Coverage
Duration of Coverage
Order of Payment
Deductibles
Waiver of Subrogation
Protective Liability Coverage Requirements
Workers Compensation and Employers Liability Insurance
Who Is Covered?
Minimum Limits of Coverage
Minimum Scope of Coverage
Duration of Coverage
Order of Payment
Deductibles
Waiver of Subrogation
Acceptable Insurance Companies
Certificates of Insurance
Notice of Cancellation
o Certificates of Insurance
Benefits of Certificates
Limitations of Certificates
Standard Certificates
Modified Standard Certificates
Manuscript Certificates
Disputes over Certificates
Resolving Conflicts
Notice of Cancellation
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Defending Failure To Provide a Compliant Certificate
Inability To Obtain a Compliant Certificate
Waiver of Contract Requirements
State Certificate Regulations
Other Pertinent Statutes
Conflicts with Other Statutes
Alternatives to Certificates
Memorandum of Insurance
OCP Policy
Manuscript Endorsement
Certificate Management
Verifying Compliance
Monitoring Ongoing Compliance
Maintaining Records
Protection under Surety Bonds
Summary
o Certificate Tracking Systems
Types of Systems
System Capabilities
Viewing and Sorting Data
Compliance Verification
Report Generation
Letter Generation
Customization
Hardware/Software Requirements
Nontechnical Considerations
Experience
Customer Service
Cost
Professional Responsibility
System Evaluation and Comparison
CertainCert
Certifitrac+
EBIX BPO
Insurance Tracking Services
Conclusion
o Railroad Protective Liab. Ins.
Bodily Injury & Property Damage Liab.
Covered Location and Operations
Covered Acts or Omissions
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Exclusions
Physical Damage to Property
Policy Conditions
Cancellation
Other Insurance
Premium and Premium Audit
Transfer of Recovery Rights
Limits of Insurance
Rating
o Contract Provisions & Environmental Liability
Scope of Work
No Environmental Responsibility
Changes
Differing Site Conditions
Standard of Care
Ordinary Negligence Standard
Higher Standards of Care
Warranty
Cost Estimates
Responsibilities of Parties
Compliance with Laws
Requirements Applicable to Subcontractors
Permits and Licenses
Health and Safety
Training
Disposal of Materials
Indemnification
Client Indemnifies Consultant
Consultant Indemnifies Client
Environmental Liability
Mutual Indemnification
Limitation of Liability
Confidentiality
Dispute Resolution
Recovery of Dispute Resolution Costs
Time Limit for Legal Action
Third-Party Rights
Warnings Regarding Use of Consultant's Report
Severability
Survival
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o Risk Allocation in the AIA General Conditions (A201)
Indemnity Provisions
Insurance Requirements
General Liability Insurance
Additional Insured Status
Builders Risk Insurance
Waivers of Subrogation
Waivers of Consequential Damages
Design Responsibilities
Differing Site Conditions
Site Safety
Hazardous Materials
Mediation and Arbitration
Mediation
Arbitration
Conclusion
o Owners and Contractors Protective Liability Insurance
The OCP Liability Coverage Form
Insuring Agreement
Exclusions
Supplementary Payments
Who Is an Insured
Limits of Insurance
Conditions
Definitions
Endorsements
OCP Policy versus Additional Insured Status
o Contractual Risk Transfer Tips
Strategies for Transferring Risk to Others
Observe Statutory and Common Law Limitations
Back Up Indemnity Provisions with Insurance Requirements
Verify Compliance with Insurance Requirements
Expect To Pay for Risk Transfers
Strategies for Accepting Risk from Others
Read the Entire Contract
Negotiate for Better Terms
Try To Cap Liability and Indemnity
Match Additional Insured Coverage to Indemnification Obligation
Resist Manuscript Forms
Educate Indemnitees on Coverage Issues
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Consider Using Blanket AI Endorsements
Additional Insureds and Workers Compensation Insurance
Additional Insureds and Completed Operations
Consider Contractual Obligations in Selecting Limits
o Construction Contract Review Checklist
XI: Contract Claims Litigation
o Construction Contract Claims
o Change Orders
Types of Changes
Formal Change Orders
Construction Change Directives
Constructive Changes
Minor Change
Cardinal Change
Problems Involving Change Orders
Authority To Order Changes
Notice
Duty To Perform Changes
Subcontractor Changes
Performance Delays
Conclusion
o Project Specification Claims
The Spearin Doctrine
The Spearin Doctrine and Design-Build Contracts
Duty To Inform
Rules of Contract Interpretation
Ambiguities
Whole Contract Rule
Specific Provision Rule
Custom and Usage Rule
Practical Construction Rule
Parol Evidence Rule
Insertions Rule
Estoppel
Impossibility
Conclusion
o Differing Site Conditions
Differing Site Conditions Claims
Categories of Differing Site Conditions
Site Conditions Clauses
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Conclusion
o Conditional Payment Clauses
Pay-If-Paid versus Pay-When-Paid
Impediments to Enforceability
Conflicting Statutes
Against Public Policy
Conflicting Contract Provisions
General Contractor Interference
Conditional Payment Clauses and Sureties
States' Position on Enforcement
o States' Positions on Conditional Payment Clauses
o Project Scheduling Claims
Scheduling-Related Claims
Abandonment of Project Schedule
Concurrent Delay
Acceleration
Disruption
Suspension of Work
Right To Finish Early
Owners' Scheduling Responsibilities
Conflicting Opinion
Contractors' Scheduling Responsibilities
Subcontractors' Scheduling Rights
Schedulers' Implied Duties
Duty To Schedule and Coordinate Work
Duty Not To Delay, Hinder, or Interfere with Work
Duty To Cooperate
Duty To Grant Reasonable Time Extensions
o Delay Damages
Types of Delays
Excusable Delay
Compensable Delay
Unexcused Delay
Calculating Delay Damages
Extended General Conditions
Price Escalation
Idle Equipment
Extended Home Office Overhead
Notice of Delay
"No Damages for Delay" Clauses
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Exceptions
Liquidated Damages
Delay Claim Scheduling Analysis
Summary
o Litigation Risk Assessment Techniques for Construction Disputes
Benefits of an LRA
Facilitates Settlement
Better Settlements
Improved Litigation Strategies
Required Skills
Stages of an LRA
Types of LRAs
Timing of the Assessment
Hypothetical Illustration
Background Information
Preparing the LRA Models
Influence Diagrams
Decision Trees
The Decision To Fight or Settle
Using LRAs in Trial Strategies and Preparation
XII: Surety
o Contract Bonds: An Overview
Types of Construction Bonds
Bid Bond
Performance Bond
Payment Bond
Bond Forms
Unique Aspects of Surety
Bond Conditions
Bond Costs
Surety Industry Organizations
o Contract Bond Underwriting
Qualification Process
Financial Condition
Business Plan
Work Schedule
Company Management
Improving the Quality of Your Submission
o Financial Statement Review Checklist
o A Surety's Review of the Financial Statements
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Ratio Analysis
Gross Profit Analysis
Analysis of Estimating Skills
o Cash Budgeting
Job Cash Flow Budget
Job Operating Budget
Job Cash Flow Budget
Company Cash Flow Budget
Projected (Pro Forma) Balance Sheets and Statement of Earnings
Projected Financial Statements and Cash Planning
o Tax Planning
o The Miller Act
Notice Requirements
Requirements for Filing Suit
Waiver of Right To Make a Bond Claim
State Statutes ("Little Miller Acts")
Eligible Claimants
Notice Requirements
Filing Requirements
o State "Little Miller Acts"
o How To Select a Professional Surety Agent
Responsibilities
Professional Qualifications
o Legal Remedies When Sureties Become Insolvent
Potential Sources of Recovery
State Guaranty Associations
Security Deposits
Liability of Public Entities (Public Projects Only)
Liability of Negligent Architect
o Survey of Sureties' Obligations in Payment Bond Claims
Bad Faith Claims
Statutory Claims
o State-by-State Review of Sureties' Legal Obligations
Alabama - Mississippi
Missouri - Wyoming
o U.S. Treasury Department Surety List
Newsletters
o 2015
The Changing Construction and Insurance Industries
The Outlook for Construction and the Risk Professional of the Future
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Construction Insurance Thought Leaders Panel
o 2013
Construction Insurance Market Report
How To Justify Increasing Loss Retention Levels to Management
Social Media and Employment Risks
Privacy Violations
Discrimination and Sexual Harassment
Third-Party Lawsuits
Disgruntled Employees
Conclusion
Courts Apply Limits on Statutes of Repose
Legislature Retroactively Revives Claims
State Immune from Time-Based Defenses
Accrual Date Altered by Contract
Conclusions
o 2012
Upcoming Changes in ISO CGL Policy
Other Insurance Provision
Scope of Additional Insured Coverage
Definition of "Insured Contract"
Professional Services
Pollution Exclusions
CGL Coverage for Construction Defects: A New Battleground?
Background
Are Warranties "Contractually Assumed Liabilities"?
Potential Impact on Contractors
Recession Challenges for Home Builders: Part II
Toolbox Solutions
Rolling CGL Wraps
Project-Specific Professional Liability Wrap-Up
Maintenance Expanded CC&Rs
Construction Document Management Protocols
Integrated Peer Reviews
Pulling It All Together
Concluding Thoughts
Construction Risk and Insurance Survey
The Respondents
Impact of Economy
Insurance and Bond Markets
Completed Operations--Wrap-Ups
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Notice of Cancellation
Summary
o 2011
Recession Challenges for Home Builders: Part I
A Look at Home Builder Risks
Challenges for Builders
A Tale of Two Builders
Conclusion
Establishing Collateral Requirements
Loss Pick
Credit Analysis
Characteristics of the Insured
Duration
Conclusion
Update on CGL Coverage for Construction Defects
CGL Coverage for Faulty Workmanship
Is Faulty Workmanship an Occurrence?
Statutory Measures
Faulty Workmanship Endorsements
Top 10 Problems in "Follow Form" Coverage
Conclusion
o 2010
Construction Risk and Insurance Survey
The Respondents
The Marketplace
Impact of Economy
Coverage Issues
Certificates of Insurance
Summary
Understanding the Contractors Credit Premium Adjustment Program
Scope of the Credit
Verification
Qualification Thresholds
Conclusion
Developments in CGL Coverage Debates
Defective Construction as an "Occurrence"
Faulty Construction Not an Accident
Legislating the Courts
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Additional Insured Coverage and Third-Party-Over Claims
Nonnegligent Acts of the Named Insured
Conclusion
2009 IRMI Construction Risk and Insurance Survey
The Respondents
The Marketplace
Impact of Economy
Greatest Concerns
2010 Initiatives
Top Related