Defending Construction Defect Claims

Luis A. Barba, Esq. and Anthony daFonseca, Esq. | Claims Magazine | March 2019

The easiest way to avoid liability for construction defect claims is by preventing them altogether. However, since prevention of a claim is not always possible, it is important that adjusters take early steps upon receipt of a new construction defect claim in order to limit liability and ensure the most efficient expenditure of defense costs.

When does liability arise?

A construction defect generally occurs when a construction project either fails to conform to contractual requirements and specifications, or fails to comply with generally accepted principles governing the industry standards, resulting in damages. Whether your insured is an architect, builder or contractor, they can generally be held liable for negligence for failure to perform their duties consistent with the generally expected degree of competence that a reasonably skilled professional would exercise under similar conditions. Some of the common construction defect theories of liability include:

• Quality of work issues

One of the driving forces behind construction defect claims are defects attributed to poor workmanship or quality of work. Whether your insured is a design professional, developer or subcontractor, a requisite expertise and standard of care set the minimum threshold requirements for the work performed. Construction defect claims are often categorized as being either patent (obvious or reasonable discovery) or latent (concealed). Latent defects may exist during construction, but are not discovered or identified until several years following its completion. These defects can include differential settlement due to improper soil compaction resulting in cracks to foundational structures and walls, water penetration due to improper flashing and installation of exterior windows, or even catastrophic fire damage due to faulty electrical wiring.

While not all latent defects create an immediate threat of emergency, as time lapses, a particular defect could pose a risk of substantial harm. Note, it will be important to know your jurisdiction’s statute of limitations and statute of repose for patent defects, as well as any tolling provisions related to latent defects to determine whether the claims are timely.

• Code violations

In addition to the reasonable and professional standards of care that govern work performed on a construction site, there are also local and national building codes and safety standards imposed by law that must be followed. Failure to comply with the codes or standards can result in a claim for defective design or defective construction. For example, in cases in which an architect incorrectly calculates the requisite number of vents to be installed per square foot in an attic, that is a per se construction defect, regardless of whether or not there is evidence of deterioration to the existing roof components.

• Scope of work violations

Whether your insured is working on a new residential home, commercial development or a home renovation, every construction project is typically undertaken according to project specifications that provide instruction on what to build, how to build it and the specific quality of materials to be used. Such plans are often prepared by architects, engineers, developers, contractors and subcontractors, each of which have different scopes of work. Claims can therefore arise if a party overextends its work scope or fails to comply with the terms of their work contract.

Practical tips for defending construction defect claims

Construction defect claims seldom offer obvious evidence of liability. It is paramount to have an in-depth knowledge and understanding of all concepts to be investigated. However, before any analysis of the merits of the claim is performed by an adjuster, it is important to ensure that several key steps are taken. Gathering information on each of these checklist items will ensure that liability and defense costs associated with a construction defect claim are managed appropriately:

1. Information Gathering

Start with some basics, as information takes time to collect and the other side could want the construction defect claim to move quickly:

• Any and all correspondences, contracts, subcontracts, invoices, plans, drawings, change orders and photographs from the beginning to the end of the project.

• Identify all current and former employees who worked on the subject project, including identifying their scope of work.

• Establish a main contact person for your insured, preferably one who knows the information you will need without needing to reference documents, call other people, etc.

2. Identify the scope of work for the insured

The correspondences, contracts, subcontracts, invoices, plans, drawings, change orders and photographs collected in the above checklist item will be the primary documents governing the applicable scope of work for the insured. However, once the documents are obtained, look beyond the plain language of the contracts to determine the specific physical areas within the project in which the insured worked to determine if this was beyond the scope of work or within the confines of the agreements between the parties.

3. Identify the scope of work for other parties involved

Often overlooked when a construction defect claim comes in is performing a detailed analysis of the scope of work for parties that are not the insured. However, understanding the scope of work of other parties involved in the project will enable you to determine who was acting within their proper scope and who was not. Doing so will help determine who may have additional liability or complete liability other than your insured, as well as who else should be at the table to share in defense costs for the claim.

An additional tip is to request proof of a contractor’s license or architect’s license, as well as proof of good standing as a business to ensure that the parties were licensed to perform the work that they ultimately undertook on the project. There may be liability issues for other parties related to performance of work for which they are not licensed, which opens up other avenues for filing cross claims to reduce the liability of your insured.

4. Duty to defend and indemnify considerations

In addition to reviewing job contracts to determine factual and scope of work issues, the contract should be scrutinized to determine if the language requires the insured to indemnify or defend other parties on the project.

Further, the insurance policies applicable to the claim may have terms under which the insured is named as an additional insured on another party’s insurance policy (or vice versa). What other policies does your insured have for the project? Do any of them have time on the risk provisions? Do any of the policies have indemnity or duty to defend clauses? Answering all of these questions from the outset are important, as they affect not only the defense of the claim, but also any resolution of the claim.

5. Issue Reservation of Rights correspondence

Initial investigation may ultimately lead to the conclusion that there is no coverage under the policy. When initially agreeing to accept the tender of a new claim, it is important for the adjuster to advise the insured that such acceptance is subject to a reservation of rights to withdraw acceptance of the defense based upon newly discovered facts that result in a change of analysis.

Considerations for retaining expert witnesses

Construction defect litigation can be rather complex and is heavily driven by expert testimony. Thus, it is critical to have a competent expert witness who can serve as an independent party tasked with the role of determining whether a claimed defect can actually be attributed to the insured. The expert must also be able to clearly explain complex issues in a manner that can be understood.

Thus, it is important to not only identify an expert with relevant experience concerning the alleged defect at issue, but also one who possesses specialized expertise in the matter, as courts may exclude those experts who do not. For example, while a licensed professional engineer may offer a general opinion as to why they observed foundational cracks in garage flooring, a geotechnical engineer will have the requisite expertise to determine if those cracks were causally related to differential settlement as a result of defective soil compaction during construction.

Depending on local evidentiary rules, consideration should be given to retaining a consulting expert (as opposed to a testifying expert). A testifying expert is required to divulge opinions in accordance and compliance with expert discovery rules. However, in some instances, a consulting expert may be able to opine as to whether allegations have merit and allow the adjuster to evaluate liability without fear of opinions being discovered through discovery.

Alternatively, if consulting experts are treated the same as testifying experts, a thorough evaluation should be performed on a case-by-case basis prior to deciding whether to proceed with expert retention. An effective expert can be the difference in a jury’s ability to agree with your theory of liability and return a verdict in your favor

Certificates of Review in Colorado Construction Defect Litigation

Daniel E. Evans and Kaitlin Marsh-Blake | Gordon Rees Scully Mansukhani | February 28, 2019

The requirement to file a certificate of review early in a lawsuit is often imposed for the purpose of preventing frivolous professional malpractice actions and avoiding unnecessary time and cost in defending such claims. These statutory obligations vary between states and are often dependent on the type of professional named as a defendant. The certificate of review requirement, sometimes called an affidavit of merit, is often seen in the healthcare context, and does not always extend to other areas of professional negligence. For example, in Missouri, a certificate of review is required in any medical malpractice action, but not in actions against other licensed professionals. In Kansas, instead of an affidavit of merit, any party to the action may request a professional malpractice screening panel review the matter and determine if there was a departure from the standard of care. Construction defect cases often involve licensed engineers, architects, and surveyors. In Colorado, these individuals are state-licensed professionals and are subject to a certificate of review.

Plaintiffs in Colorado must file a certificate of review in every professional negligence action against a licensed professional. C.R.S. § 13-20-602. The certificate of review must be filed within sixty days after service of the complaint. The certificate of review must indicate that the claimant’s attorney consulted with an expert in the area of the alleged negligent conduct, and that the consulting expert determined that the claim does not lack substantial justification. C.R.S. § 13-20-602(3). In the construction context, the certificate of review requirement applies to Colorado-licensed engineers, architects, and surveyors. Arguably, this requirement also applies to certain trades such as electricians and plumbers, as these contractors are also regulated by the Colorado Department of Regulatory Agencies and licensed through the State of Colorado.

Case law authority exists that Colorado’s certificate of review requirement is not limited to negligence claims, but instead may be required for any claim against a licensed professional that requires expert testimony. Ehrlich Feedlot, Inc. v. Oldenburg, 140 P.3d 265, 271 (Colo. App. 2006). When a plaintiff’s claim requires a showing that the licensed professional breached a duty of care, and the duty of care is not within the understanding of a layperson without the assistance of expert testimony, then a certificate of review is required. Williams v. Boyle, 72 P.3d 392, 397 (Colo. App. 2003). Depending on the allegations, the certificate of review requirement may extend to claims of fraud, breach of contract, or violations of the Colorado Consumer Protection Act. See, e.g., Williams v. Boyle, 72 P.3d 392, 399 (Colo. App. 2003) (certificate of review was required for claims involving fraud); Martinez v. Badis, 842 P.2d 245, 251 (Colo. 1992) (breach of contract claims); Teiken v. Reynolds, 904 P.2d 1387, 1398 (Colo. App. 1995) (CCPA claims).

Section 13-20-602, C.R.S., mandates that the failure to file a certificate of review shall result in dismissal of the complaint. However, the court has the discretion to determine that a longer period of time is necessary to file a certificate of review and may extend the deadline. Id. When involved in a construction defect matter in Colorado, it is important to determine whether the named defendant is a licensed professional and note the deadline for a claimant to file a certificate of review. In some instances, a well-timed dispositive motion may result in dismissal of a licensed professional based on the failure to file a certificate of review.

Condominium Conversions Defect Actions Under California Law: Not Your Run-of-the-Mill Defect Case

Brendan P. Bradley | Gordon Rees Scully Mansukhani | February 28, 2019

Condominium conversions may present developers and contractors with both additional defenses and potential liability pitfalls when a defect action is subsequently alleged by an HOA. On the plus side for the converter, unlike new residential construction projects, California Civil Code Section 896, which is commonly referred to as “SB 800,” or the “Right to Repair Act,” does not apply. This means that violation of the performance standards for construction components contained in SB 800 is not an independent basis for recovery in a suit brought by the HOA.

Further, statute of limitations defenses are commonly available to developers and contractors in conversion cases where the original construction is more than ten years old. California Code of Civil Procedure Section 337.15 sets forth a ten-year statute of repose limiting claims for latent defects. In many, if not most cases, the converted project will have been used as rental property for several years before its conversion to condominiums. This means that often, while any construction associated with the conversion may only be a couple years old when the HOA sues, the original construction may have been completed more than ten years prior. If the HOA’s claims relate to the ten-plus year old original construction, as opposed to conversion work, they are likely barred.

HOA counsel often try to skirt this statute of limitations defense by alleging that the converting developer should have identified and remedied or disclosed defects in original construction during pre-conversion investigation. Likewise, they argue that contractors who see defects in original construction while performing conversion work have an obligation to point out the defects, not cover them up. However, this requires the HOA to show that the condition actually existed such that it could have been identified at the time of conversion, which is often difficult for the HOA to prove.

On the other hand, conversion cases may pose a hornet’s nest of potential risks for developers, particularly where the developer (or its proxy) maintains control over the HOA board of directors for a period of time following conversion. If a suit for defects related to original construction was actionable during the period when the developer controlled the HOA board, it could be held accountable for failing to take action against the original builder, where the claims have subsequently been barred by the statute of limitations. Likewise, the HOA will commonly allege that defects which would otherwise be barred by the ten-year statute of limitations are actually related to the developer-controlled HOA’s failure to properly maintain the project, or provide adequate reserve budget funding to replace aging components after the conversion. Such claims can create serious insurance coverage concerns for the converter.

This is just the tip of the iceberg when it comes to potential conversion defect claim pitfalls for developers and contractors. HOA claims brought as to condominium conversion projects pose much more complex legal issues than seemingly similar cases related to new construction, even where the two projects may have identical defects. Therefore, it is vital that developers and contractors act with extra vigilance when faced with a claim by the HOA on a conversion project. Failure to do so can result in the developer or contractor facing serious insurance coverage issues, and waiving defenses which might otherwise have been available.

At What Cost? Navigating the Costly, Tricky Trends in Smaller Construction-Defect Disputes

Megan Ferris and Kristin Tannler | Construction Claims | Winter 2018

There is an ongoing trend in construction-defect litigation where lawsuits or arbitration claims involving contract, payment, or punch-list disputes transform into stubborn, unpredictable, and litigated disputes for which fees and expert costs far exceed the actual issues in dispute. These are not the multi-million-dollar condominium cases with hundreds of units and just as many parties and attorneys, but rather smaller, custom projects for individual homeowners.

The underlying contracts in these matters often contain a prevailing party-fee clause, but little else with respect to key terms.

These matters, because of cost and attorney-fee exposure, rarely go to trial or arbitration, and we don’t have the opportunity to see how courts would rule in such matters if they were given the chance. Recently, the Oregon Court of Appeals issued an opinion in Cedartech, Inc. v. Strader, 293 Or App 252 (2018) that touches on all of these themes.

Defendant Strader owned a historic home with a cedar-shingle roof. Strader contracted with Cedartech to perform certain work on her roof. That work included cleaning and treating the roof. Sometime after the written contract, Strader requested that Cedartech repair two leaks in the roof. However, while attempting to perform those repairs, Strader refused to allow Cedartech to enter the home to investigate the cause and source of the leaks.

The matter proceeded to judgment by way of bench trial. The trial court found in favor of Cedartech, the contractor, for $7,045 (less $1,200 in offset in favor of Strader). The Court of Appeals affirmed the general judgment in favor of Cedartech, finding that Cedartech had substantially performed under the contract.

Even though the Court of Appeals affirmed the general judgment in favor of Cedartech, it remains to be seen if Cedartech will recover substantial prevailing party fees. The trial court denied Cedartech’s petition for $80,829.50 in attorney fees. The trial court held that no factor supported awarding attorney fees and denied Cedartech’s petition in its entirety. The Court of Appeals remanded the attorney-fee issue back to the trial court, which is still pending.

Cedartech does not establish any new significant points of law to guide our practice, but it does inform us that the courts may be willing to enforce contract terms against homeowners and in favor of contractors. Cedartech also serves as a cautionary tale on the attorney-fee issue, which is often the tail that wags the dog in these contractors-versus-homeowner disputes.

These “small” disputes between the contractor and homeowner often land on our desks after the notice of defect period has elapsed, the homeowner has already incurred attorney fees to get the claim to suit, and the contractor has a breach of contract claim for non-payment. On top of that, the dispute has morphed into allegations of over-charging or bad work against the contractor.

Cedartech is a good reminder that the contractor is sometimes right, however obstacles often block the path to a favorable ruling. In addition, there is an ever-mounting fee petition on both sides. As we continue to litigate these contract disputes disguised as construction-defect claims, we should be mindful of the following issues:

  • The potential for a myriad of coverage issues to be addressed when reporting, including how to tiptoe around issues such as an unfinished project, allegedly fraudulent accounting, and often a lack of property damage (in the conventional sense).
  • Emotional investment of the contractor in the job gone wrong, which often implicates matters of pride, workmanship, and a separate worry that there will not be sufficient coverage.
  • Emotional plaintiffs and punitive litigation tactics that are aimed more at punishing the contractor than negotiating a resolution.
  • The decision on whether to file third-party claims against subcontractors whose worst offense is that they were not permitted to finish their work. Bringing the third-party claims increases the breadth and scope of issues and adds a whole new layer of expense, but it also may help raise settlement funds to increase the chance of a mediated resolution. These subcontractors may have their own coverage concerns and claims for non-payment to add to the mix.

In undertaking triage and mapping out the initial strategy, the contractor’s counsel may consider these tactics:

  • A frank discussion with the contractor client about how to approach a non-payment claim and the likelihood of recovery. This is often where personal counsel may be of aid in either aggressively pursuing a counterclaim or assisting the contractor client in making the decision to forego recovery in exchange resolution of the claim.
  • Attempt to outline items that require remediation versus a part of the job that simply has to be finished and arguably is not the basis of a defect claim against the original contractor.
  • Develop contractual arguments in the contractor’s favor. Did the homeowner wrongfully terminate? Did the homeowner improperly withhold payment? What was the homeowner’s role in contributing to project delays?
  • Engage an expert on behalf of the contractor to immediately document the job-site condition, preferably before remediation or repairs have commenced. Even if repairs have begun or have been completed, a consultant will be able to assist in evaluating reasonableness of cost of repairs and assist in sorting out repair costs from costs to finish.
  • Early evaluation if the case requires deposition discovery before attempting ADR. In some cases, even though we all appreciate the need to keep attorney-fee exposure at a minimum, the plaintiff homeowner has to go through a deposition and be forced to appreciate some of its inherent weakness and to educate her own counsel. Further, early discovery assists in identifying facts that can be developed in favor of the contractor client.

Once the initial discovery issues are mapped out and the pressure points are identified, the case can be set on a course for resolution. If resolution is not possible, perhaps certain contract terms can be construed in favor of the contractor, especially where the contractor was improperly terminated before completion of the project or prevented from completing work. If the analysis in Cedartech can be extended to these other instances, then homeowners should be more hesitant to prosecute contract claims where they themselves were in material breach and should be advised that attorney-fee recovery is not always a given.

Ohio Supreme Court Narrows Coverage for Construction Defect Claims

Arnanda M. Leffler and Anastasia J. Wade | Brouse McDowell | February 10, 2019

On October 9, 2018, the Ohio Supreme Court issued its long-awaited decision in Ohio Northern Univ. v. Charles Constr. Servs., 2018-Ohio-4057, holding that a general contractor was not entitled to insurance coverage for its subcontractor’s faulty work. Since then, some commentators have described the Court’s holding as eliminating all insurance coverage for claims involving defective construction. Such a broad reading is not warranted. Still, Ohio’s insureds would be wise to consider purchasing an endorsement that is readily available in today’s insurance market.

Coverage for Construction Defect Claims Nationally

For years, courts around the country have grappled with coverage for claims involving defective or faulty construction. These cases generally turn on whether the court determines that defective construction is an “occurrence.” An “occurrence” is defined as an accident, including continued or repeated exposure to harmful conditions. In practice, faulty work is almost always an accident as that word is commonly understood—contractor-insureds rarely, if ever, intend or expect to cause injury to persons or property, including their own work. Thus, the industry has long understood that insurance policies will generally provide at least some coverage for damage arising from defective work, subject to policy exclusions that bar coverage for the actual repair or replacement of an insured’s faulty work. Insurers, however, argue that defective work is a non-accidental “business risk” that is not an “occurrence” covered by the policy. Since 2012, almost all courts that have considered the issue have held that defective construction is an “occurrence” and, thus, it is covered by the policy, at least to the extent that work other than the insured’s work is damaged. See Black & Veatch Corp. v. Aspen Ins. (Uk) Ltd, 882 F.3d 952, 966 (10th Cir.2018) (citation omitted).

Ohio’s Position: Westfield Ins. Co. v. Custom Agri Sys., Inc.

In 2012, the Ohio Supreme Court decided Westfield Ins. Co. v. Custom Agri Sys., Inc., 2012-Ohio-4712, holding that claims for the cost to repair an insured’s defective work are not covered because they “are not claims for ‘property damage’ caused by an ‘occurrence’ under a commercial general liability [CGL] policy.” In its decision, however, the Court cited and approved of prior Ohio case law which held that consequential damages arising from a policyholder’s defective work generally are covered by CGL policies. Since Custom Agri, insurance practitioners and courts in Ohio have generally agreed that:

  • Repair and replacement of a policyholder’s defective work is not “property damage caused by an occurrence” and is not covered by standard CGL policies; and
  • Consequential damages to property other than the policyholder’s work is “property damage caused by an occurrence” and may be covered by a standard CGL policy depending upon the applicability of the policy’s exclusions and conditions.

Notably, however, the Custom Agri Court did not address whether a typical CGL policy would provide coverage for the repair or replacement of defective work performed by the policyholder’s subcontractors. The Court addressed this issue in Ohio Northern.

Coverage for Subcontractor Work: Ohio Northern

In 2008, Ohio Northern contracted with Charles Construction Services (CCS) to construct a hotel and conference center. After CCS and its subcontractors completed the work, Ohio Northern discovered significant issues with the work and brought suit against CCS. CCS tendered the claim to its insurer, Cincinnati Insurance Company, which argued that it had no coverage obligations under Custom Agri. In response, CCS argued that Custom Agri was inapplicable because subcontractors performed almost all of the work at issue, not CCS.

The trial court granted summary judgment to Cincinnati, but the Third District Court of Appeals reversed. In finding in favor of CCS, the appellate court analyzed certain policy exclusions that expressly preserved coverage for damaged work or damages arising from faulty work if: (1) a subcontractor performed the work; and, (2) the damage occurred after project completion. Cincinnati then appealed to the Ohio Supreme Court, which accepted the following proposition of law for review:

[Custom Agri] remains applicable to claims of defective construction or workmanship by a subcontractor included within the “products-completed operations hazard” of [a] commercial general liability policy.

Thus, the question before the Court was whether Custom Agri applies to claims involving a subcontractor’s faulty work. In its decision, the Court concluded that Custom Agri does apply to such claims.

The Court acknowledged that its decision went against the weight of authority from its sister-courts nationally, but nonetheless applied Custom Agri to hold that “property damage caused by a subcontractor’s faulty work is not fortuitous and does not meet the definition of ‘occurrence’ under a CGL policy.” The Court failed to address several arguments, including: (1) that this interpretation rendered meaningless the carve-back for subcontractor work in the Your Work exclusion; (2) that the drafting history of the exclusions confirmed that the insurers themselves intended to provide coverage for subcontractor defective work; and, (3) that the meaning of “occurrence” used in Custom Agri contradicted the long-standing meaning given to the word in every other context. Instead, the Court suggested that the Ohio General Assembly could address the issue by requiring that all policies issued in Ohio define “occurrence” to include defective workmanship. Of course, this suggestion brings little comfort to the contractor-insureds that paid substantial sums for “completed operations” endorsements that were intended to provide coverage for these claims in the first place.

What’s Next for Ohio’s Construction Insureds?

Many commentators have written that the decision in Ohio Northern eliminates all coverage for construction defect claims. Taken to its logical conclusion, the absurdity of this argument is evident. Suppose an insured incorrectly affixes materials to the façade of a building, resulting in falling masonry that strikes and kills an innocent bystander. Or, suppose an insured incorrectly installs wiring during construction, resulting in a fire that destroys both the project and surrounding homes. Would any insurer even argue that there is no coverage for such claims?

The Court’s opinion in Ohio Northern cannot be read so broadly. The Court answered a narrow question: does Custom Agri apply to subcontractor work? The answer, according to the Court, is yes. But, Custom Agri held that, while there is no coverage for the repair or replacement of a policyholder’s defective work, there is coverage for consequential damages arising from that defective work. While at times the Court’s language in Ohio Northern is imprecise, the Court makes clear over and again that it is simply applying its precedent, Custom Agri. Notably, the Custom Agri Court relied upon multiple cases previously decided by Ohio courts holding that consequential damages arising from defective construction are covered occurrences. Had the Ohio Northern Court intended to overrule this prior precedent, cited in Custom Agri, it easily could have stated its intention to do so. The Court’s silence on these cases means they are still applicable to Ohio policyholders. Thus, consequential damages arising from defective construction should still be covered under CGL policies.

In fact, even Cincinnati recently confirmed that the Court’s opinion cannot be read so broadly as to eliminate coverage for consequential damages. In its response to a motion to reconsider filed by Ohio Northern, Cincinnati stated that the opinion “correctly recognizes that consequential damages, when they exist, may be covered.” For example, Cincinnati acknowledged that a subcontractor’s CGL coverage would apply at least “where a subcontractor damages part of a construction project that is not within its subcontract.” According to Cincinnati, the Court found no coverage for the consequential damages at issue in Ohio Northern because CCS was a general contractor and all of the damage to the project was CCS’s “work.”

An Ounce of Prevention…

While coverage firms like Brouse McDowell can and should continue to advocate for coverage for consequential damages, Ohio’s contractors should nonetheless consider purchasing additional coverage, particularly if they are acting as a general contractor. Numerous insurers now offer endorsements that reinstate the coverage that the Ohio Northern decision arguably eliminated. For example, some insurers amend their insuring agreement to specifically cover property damage to an insured’s work if it is performed by a subcontractor and falls within the products-completed operations hazard. Other insurers “deem” that property damage to the insured’s work is caused by an occurrence if it is unexpected and unintended. Yet other insurers amend the definition of “occurrence” to include “subcontracted property work damage.”

There may be material differences in how these various forms operate and the extent of coverage they provide, which is a subject that is beyond the scope of this article. Policyholders in Ohio should contact their brokers to discuss the options available to them and, if appropriate, should contact coverage counsel to discuss how the various, differing forms would operate. For their part, owners and developers should amend their construction contracts to compel contractors to purchase such endorsements.

Insureds and sophisticated brokers will understandably question why they and their clients must pay higher premiums to purchase endorsements to protect themselves from claims that the insurers intended would be covered by the existing CGL form. Nonetheless, here, an ounce of prevention is worth a pound of cure, and construction industry participants should contact their brokers and counsel today.