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FEBRUARY 8, 2011 Integrated Project Delivery: Integrated Project Delivery: Developments in Design Liability Insurance and Risk Management Developments.

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Presentation on theme: "FEBRUARY 8, 2011 Integrated Project Delivery: Integrated Project Delivery: Developments in Design Liability Insurance and Risk Management Developments."— Presentation transcript:

1 FEBRUARY 8, 2011 Integrated Project Delivery: Integrated Project Delivery: Developments in Design Liability Insurance and Risk Management Developments in Design Liability Insurance and Risk Management Presented by: Gene Todaro and Frank Musica Victor O. Schinnerer & Company, Inc.

2 FEBRUARY 8, 2011 PRESENTER BIBLIOGRAPHIES Gene Todaro has been with Victor O. Schinnerer and Company, Inc. in the Construction Industry Group for thirty years. His primary focus is underwriting, servicing and marketing of accounts in the Contractor's Professional and Pollution Liability Program. Previously, he was involved in Project Liability Insurance, Architect/Engineers, National Accounts and as the Underwriting Manager for the Construction Industry Group. He is frequently asked to speak at industry group sessions concerning architects, engineers and contractors professional and pollution insurance issues. Frank Musica is senior risk management attorney for Victor O. Schinnerer & Company, Inc. which he joined in 1991 to assist the program in identifying the transformations in construction-related professional services, the liability exposures created by contractual language, legislation, regulations and court rulings, and management processes and procedures to reduce the risk profiles of firms.

3 The Changing Systems of Design and Construction Integration of design and construction Integration of design and construction Efficient delivery of construction project Efficient delivery of construction project Client demands for savings – time, cost, hassle – and results Client demands for savings – time, cost, hassle – and results Client demands for accountability Client demands for accountability Control of design process Control of design process Multiple design sources Multiple design sources Delegated design responsibilities Delegated design responsibilities FEBRUARY 8,

4 High-Risk Issues That Could Impact Sureties Blurring of the “bright line” legal treatment of design and constructionBlurring of the “bright line” legal treatment of design and construction Replacement of design negligence standard with contractual obligations of design-build and integrated project deliveryReplacement of design negligence standard with contractual obligations of design-build and integrated project delivery Increase in design services provided by contractors, subcontractors and othersIncrease in design services provided by contractors, subcontractors and others Replacement of professional liability coverage with financial assets of contractorsReplacement of professional liability coverage with financial assets of contractors FEBRUARY 8,

5 Integrated Project Delivery and the Use of BIM Legal TreatmentLegal Treatment Statutes and registration laws Statutes and registration laws Case law on negligence versus contractual obligations Case law on negligence versus contractual obligations Insurance CoverageInsurance Coverage Issue of contractual exposures, shared risk and waivers Issue of contractual exposures, shared risk and waivers Problems covering speculative risks and moral hazards Problems covering speculative risks and moral hazards Financial SystemFinancial System Lenders’ reliance on deep pockets Lenders’ reliance on deep pockets Bonding difficulty Bonding difficulty FEBRUARY 8, 20115

6 Integration for Green Construction Project Performance Shared liability for direct and consequential damages: Delayed third-party certificationDelayed third-party certification Failure to meet design or construction integrity requirements for specific certification levelFailure to meet design or construction integrity requirements for specific certification level Deficiency in meeting high-performance standards or contractual obligations for initial and life-cycle costsDeficiency in meeting high-performance standards or contractual obligations for initial and life-cycle costs Fraud, material misrepresentation and deceptive practices claims related to performance or costFraud, material misrepresentation and deceptive practices claims related to performance or cost FEBRUARY 8,

7 Design Exposures and Coverage for Contractors Coverage is available for: Direct liability for in-house design by a licensed professionalDirect liability for in-house design by a licensed professional Vicarious liability for subcontracted design to a licensed professionalVicarious liability for subcontracted design to a licensed professional Joint Venture or shared design responsibilityJoint Venture or shared design responsibility –Integrated Project Delivery cooperative design –“Design Assist” or delegated design responsibility FEBRUARY 8,

8 Design Exposures and Coverage for Contractors Coverage is available for: Construction Management/Project LeaderConstruction Management/Project Leader –CM At-Risk design coordination obligations –CM Agency design coordination obligations –Program/Project Management contractual duties Selection of design teamSelection of design team Self-performed design servicesSelf-performed design services Subcontract design servicesSubcontract design services Coverage depended on scope of contractual dutiesCoverage depended on scope of contractual duties FEBRUARY 8,

9 Design Exposures and Coverage for Contractors Design Liability Coverage differs from CGL Endorsed CGL policy usually only covers Bodily Injury and Property Damage caused by negligently performed design servicesEndorsed CGL policy usually only covers Bodily Injury and Property Damage caused by negligently performed design services No coverage through CGL endorsement for:No coverage through CGL endorsement for: –The cost of remedial design or reconstruction –Economic damages resulting from design liability FEBRUARY 8,

10 Various Coverage Forms for Contractors Three Contractor options: Contractor Professional LiabilityContractor Professional Liability Contractor Pollution LiabilityContractor Pollution Liability Contractor Professional and Pollution LiabilityContractor Professional and Pollution Liability –All the protection and coverage of the professional and pollution liability policies combined FEBRUARY 8,

11 Developments in Contractor Coverages Contractor Professional Liability Coverage available for:Coverage available for: –In-house and subcontracted services –Joint ventures with design firms –CM Agency and At-Risk Services Coverage includes:Coverage includes: –Failure to detect faulty workmanship of subs when responsible for design and construction –Rectification of design problems in construction –Mold, silica and respirable dust FEBRUARY 8,

12 Developments in Contractor Coverages Rectification Coverage Enhancement “Rectification” means reasonable and necessary fees, costs and expenses incurred to rectify a design defect caused by a professional service in any part of the construction or engineering work as long as the insured is responsible for design and construction. FEBRUARY 8,

13 Developments in Contractor Coverages Contractor Pollution Liability Coverage for pollution claims, including costs for government-mandated clean-upCoverage for pollution claims, including costs for government-mandated clean-up Coverage for tort liability of client arising from insured direct or subcontracted activities if contractually assumedCoverage for tort liability of client arising from insured direct or subcontracted activities if contractually assumed Coverage for transportation of pollutantsCoverage for transportation of pollutants No exclusion for asbestos, respirable dust or silicaNo exclusion for asbestos, respirable dust or silica FEBRUARY 8,

14 New Integrated Project Delivery Insurance Lead designers, general contractors, subconsultants and subcontractors can be covered under a project specific policy.Lead designers, general contractors, subconsultants and subcontractors can be covered under a project specific policy. Includes professional liability, pollution incident liability, and contractors design liability coverages.Includes professional liability, pollution incident liability, and contractors design liability coverages. Dedicated policy covers the design exposure on design-bid-build, design-build and firms entering into integrated project delivery (IPD) projectsDedicated policy covers the design exposure on design-bid-build, design-build and firms entering into integrated project delivery (IPD) projects FEBRUARY 8,

15 New Integrated Project Delivery Insurance Extended Reporting Period up to five years is available depending on the duration of the projectExtended Reporting Period up to five years is available depending on the duration of the project Coverage can be offered for projects with construction values between $10 million and $300 millionCoverage can be offered for projects with construction values between $10 million and $300 million Non-cancellable except for nonpayment of premiumNon-cancellable except for nonpayment of premium Also available for AIA Single Purpose Entity project delivery systemAlso available for AIA Single Purpose Entity project delivery system FEBRUARY 8,

16 Key Exclusions in Contractor Coverages Professional liability exclusions: Express warranties/guaranteesExpress warranties/guarantees Means, methods, techniques, sequences and procedures of constructionMeans, methods, techniques, sequences and procedures of construction Faulty workmanship of insured contractor (but no exclusion of negligent oversight of subcontractors)Faulty workmanship of insured contractor (but no exclusion of negligent oversight of subcontractors) Cost estimates or bid inaccuracyCost estimates or bid inaccuracy FEBRUARY 8,

17 Key Exclusions in Contractor Coverages Professional liability exclusions: Delays not caused by design negligence or agency CM servicesDelays not caused by design negligence or agency CM services Job-site safetyJob-site safety Pollution incidents not triggered by negligent design services (unless contractor has stand- alone or combined professional/pollution policy)Pollution incidents not triggered by negligent design services (unless contractor has stand- alone or combined professional/pollution policy) FEBRUARY 8,

18 Claim Trends and Examples Frequency of Claims per 100 Firms FEBRUARY 8,

19 Claim Trends and Examples Severity of Paid Claims FEBRUARY 8,

20 Integrated Project Delivery: Developments in Design Liability Insurance and Risk Management YOUR QUESTIONS? If you do not have the opportunity to have your question addressed during the Seminar, you may contact the presenter directly: Gene Todaro Construction Underwriting Specialist Victor O. Schinnerer & Company, Inc. 20


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