ERISA claims on the rise in Wis. | Website addresses construction health hazards | Calif. may require businesses to disclose virus exposures
August 6, 2020
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Surety & Insurance Market Trends
Many recent claims under the Employee Retirement Income Security Act of 1974 have led to class litigation in Wisconsin, with many claims resulting from allegations that plan managers and administrators selected costly investment options or caused losses through large administrative fees. Bernard Bobber and Mark Schmitke write that employers should pay attention to how retirement plans are managed and make new investment decisions as needed.
Full Story: The National Law Review/Ogletree, Deakins, Nash, Smoak & Stewart (8/4) 
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On the Radar Screen
Noise-induced hearing loss, excessive heat during the summer months, breathing in air contaminants and the physical toll of demanding work are among worker health hazards addressed on a free website established by the American International Health Alliance to assist construction contractors. "Health hazards tend to be much less observable and can be even more damaging to a person and the organization," said Janet L. Keyes of AIHA.
Full Story: Occupational Health & Safety (8/3) 
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Legislation that has passed a California Senate committee would mandate that businesses inform employees and state officials within 24 hours if a worker is exposed to the coronavirus. The measure, which could carry a $10,000 fine for violations, would be tougher than a recent Virginia law that mandates notifications when an employee tests positive for the coronavirus.
Full Story: The Associated Press (8/5) 
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Construction Contract Terms & Conditions
Fixed-price engineering, procurement and construction contracts are often advantageous to owners and risky for contractors, write Pawel Piotrowski and Nicola Ellis. Engineering, procurement and construction management contracts give owners a higher level of control, but add complexity for project owners, especially when disputes occur.
Full Story: The National Law Review/K&L Gates (7/29) 
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Subcontractor certification of pass-through claims is generally not enough to give the Armed Services Board of Contract Appeals jurisdiction over a pass-through claim, according to Lee-Ann Brown and Eric Frechtel. They write that "while the prime contractor's certification does not require the prime contractor to believe that the subcontractor is entitled to recover on the claim, it is necessary that the prime believe that there is 'good ground' for the claim."
Full Story: JD Supra/Bradley Arant Boldt Cummings LLP (7/30) 
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Protocols & Procedures
As costs come down and technology improves, video cameras are becoming more common as monitoring tools on construction sites, which can assist in the claims process. "A picture could be worth a thousand words but video evidence is worth more than a thousand words, given the rich data information that it provides," said David Brockmann, area senior vice president at Gallagher.
Full Story: Risk & Insurance online (7/29) 
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Legal Compliance
The allocation of lump-sum payments can be unclear if there are several outstanding invoices, and clear communication is needed to prevent legal issues, attorney Nicholas Karkazis writes. "When neither party has specified how payments are to be allocated, or when payment has been made in a manner in which allocation is unclear, disputes can be riddled with legal pitfalls, necessitating legal advice," he writes.
Full Story: The Daily Reporter (Milwaukee) (free content) (7/31) 
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Construction & Insurance Case Law
The 5th U.S. Circuit Court of Appeals has ruled Liberty Mutual Fire Insurance does not have to cover damage to a Houston skyscraper resulting from falling welding slag because the incident was excluded under a builder's risk policy. Milestone Metals, general contractor Balfour Beatty, and developer TCH Energy Corridor Venture LLC had sought nearly $687,000 in coverage.
Full Story: Business Insurance (tiered subscription model) (8/4) 
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Project Focus
Partners on Denver International Airport's terminal renovation have exhausted all but $170 million of the project's $770 million budget. Officials may be forced to cut components of the project.
Full Story: The Denver Post (tiered subscription model) (8/5) 
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AGC News
The survey will close on August 24. The construction industry has experienced some very significant and sudden changes during the past few months that have led to dramatic changes in demand for work and the need for new workers. We need to understand exactly how those changes are impacting the industry's current workforce needs to better be able to advocate for measures to help the industry's labor needs in both the short- and long-term. That is why we are asking you to take a few minutes to complete the following workforce survey that we and our partners at Autodesk have prepared. The more people understand the scope, and consequences, of current labor market conditions, the more likely they are to enact measures to help meet the industry's needs. The more members who take the survey, the better able we all will be to describe labor market conditions where you operate.
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Leaders of the construction, surety and insurance industries interested in speaking at the Associated General Contractors of America's (AGC) 2021 Conference on Surety Bonding & Construction Risk Management are invited to submit their ideas for sessions. The event will be held from January 25-27, 2021, in Bonita Springs, FL. If you want to share your knowledge and have content that will stimulate and provoke discussion, please complete the online submission form. AGC is looking for experienced presenters to deliver dynamic and engaging presentations related to bonding, insurance, contracts, and business practices that collectively define the field of construction risk management. Please refer to AGC's 2021 Conference Guidelines for details and important deadlines. Submit your proposal today.

Please submit proposals on the understanding that dates are subject to change - and you may be asked to adapt your session to a virtual learning experience. The hope and plan is for everyone to gather again in person in Bonita Springs in 2021. AGC is, however, keeping a close eye on the latest health information and state regulations regarding group gatherings and other logistics due to COVID-19. We will post updates to the conference website to keep you informed.
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