Issues Affecting Professional Liability Claims against Design & Construction Professionals in 2021

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Issues Affecting Professional Liability Claims against Design & Construction Professionals in 2021
WEBINAR

  Issues Affecting
  Professional Liability
  Claims against
  Design & Construction
  Professionals in 2021
  Tuesday, May 4, 2021

  Michael Beckelman                   Wendy Testa
  Partner – Houston, TX               Partner – Philadelphia, PA
  713.353.2028                        215.606.3910
  michael.beckelman@wilsonelser.com   wendy.testa@wilsonelser.com
Issues Affecting Professional Liability Claims against Design & Construction Professionals in 2021
5/4/2021

                     DESIGN PROFESSIONAL’S TOOL
                       BOX FOR MANAGING RISK

               Wendy D. Testa                                             Michael Beckelman
               Co-Chair of Design Professional                            Co-Chair of Design Professional
               and Complex Tort and General                               Practice
               Practices                                                  Wilson Elser - Houston
               Wilson Elser - Philadelphia

     © 2021 Wilson Elser.
1    All rights reserved.

    Course
    Description

     The course will address issues of
     importance for Architects and Engineers
     including: allocation and management of
     risks and avoidance of claims; key
     contract provisions and concerns; and
     recent legal developments and trends.

    Learning
    Objectives
    This seminar will provide a comprehensive assessment of risk
         management tools available to architects and engineers. Attendees
         will gain critical insight in order to evaluate and balance business
         opportunities against risks, avoid unmitigated risk, and when
         warranted, accept measured risk while learning how to minimize,
         mitigate, and manage risk.

    At the end of this presentation you will:

    1.   Understand the concept of Risk Management and its application to
         the professional practice of architecture and engineering, including
         client relations, contract negotiation, and construction phase
         services;

    2.   Be able to identify the possible defenses to a professional liability
         claim;

    3.   Be able to spot and recognize the nuances of various contract
         clauses that may result in increased exposure to risk and potential
         professional and other liability;

    4.   Be able to formulate a strategy for shifting, transferring, mitigating,
         and managing risk through: client education, controlling, and
         managing client expectations, limiting liability, qualifying and
         conditioning contract language, and monitoring continued exposure
         to risk throughout the duration of a project or a client relationship.

                                                                                                                  1
Issues Affecting Professional Liability Claims against Design & Construction Professionals in 2021
5/4/2021

              Smart Contracting
                  4

•   Contract Documents
•   Effective ADR
•   Scope of Work
•   Cost Estimates
•   Standard of Care
•   Site Visits
•   Compliance with Laws and Codes
•   Limitations to Liability
•   Termination
•   Ownership of Documents
•   Duty to Defend, Indemnify and to Insure Another

                                © 2014 Wilson Elser. All rights reserved.

         What are “Contract Documents”?
      • “Contract Documents” are generally more than just the
        contract that you enter
      • Those documents to be included in “Contract
        Documents” will be defined in the contract
      • “Contract Documents” will typically include:
         – Your Contract for the Project
         – Design plans and specifications
         – The Prime Contract and “Prime Contract Documents”
           related to the project if you are a sub-consultant

      Effective Alternative Resolution
               (ADR) Clauses
• Agreed upon and SPECIFIC terms
   – Have a detailed resolution process that is
       • Realistic
       • Attractive
       • Negotiated
   – Do not forget to address the details such as specifically what
     issues would be addressed under ADR
       • “anything arising from a contract”
   – Select a location for arbitration/mediation
   – Specify a selection process for an arbitrator/mediator

                                © 2014 Wilson Elser. All rights reserved.   6

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 Effective Alternative Resolution
          (ADR) Clauses
• Steps to effective resolution
   – Ease of process
   – Time limited steps prompt resolution
   – Agreed to by all
• Do not agree as a nonparty to be bound by
  arbitration
• Requirement of contract between other on job
  (e.g., owner/GC/CM

                                  © 2014 Wilson Elser. All rights reserved.   7

        Mediation v. Arbitration
Benefits to Mediation:
   – Non-binding (not a final decision)
   – Flexibility
   – Less costly than trial
   – not all arbitration forums are equal
   – Very open to negotiation
   – Resolve dispute under “relaxed” terms
   – Arbitration awards may be final / binding decision or difficult to
      appeal
   – Arbitration allows for limited discovery
   – Arbitration is more adversarial than a mediation (like a mini trial)

                                  © 2014 Wilson Elser. All rights reserved.   8

     Scope of Work—Avoid wearing too many hats

      Design professionals trying to add value to services provided
         – Detail must be provided in scope
         – Actual work done on project must follow work outlined in
            scope
         – Avoid ambiguity in scope and titles for your role on the job
             • E.g. different names or titles for you throughout the
               contract
         – Avoid performing services outside traditional scope of
            design professionals services
         – DOCUMENT

                                  © 2014 Wilson Elser. All rights reserved.   9

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                  Cost Estimates

• Design professionals should make no guarantee or
  warranty that a project can be built within the estimate

• Insist that an owner identify a project budget in writing

• If a project does not move forward within specified time
  period, a cost estimate may be revised

• Design professionals should limit responsibility for
  redesign due to reduced scope or budget constraints

                            © 2014 Wilson Elser. All rights reserved.                                                                              10

                    Cost Estimates

           Example of favorable language for cost estimates

                                                                        © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

             Standard of Care
        • Avoid assuming a heightened standard of care
           – Accepting relationship of trust and confidence
           – Assuming fiduciary duty
           – Convenient or promise to perform to our best
             skill and judgment
        • The best language to use will compare you:
           – To a similarly situated design professional
           – Reasonably prudent design professional
        • Recommended language can be found in AIA
          Document B101 Section 2.2

                            © 2014 Wilson Elser. All rights reserved.                                                                              12

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5/4/2021

                 Standard of Care
           We recommend language similar to this AIA-
           approved language:

                “The Architect shall perform its services
                  consistent with the professional skill and care
                  ordinarily provided by members of the
                  profession practicing in the same or similar
                  locality under the same or similar
                  circumstances. The Architect shall perform
                  its services as expeditiously as is consistent
                  with such professional skill and care and the
                  orderly progress of the Project.”

                (See AIA Document B101, Section 2.2)

                                                                                © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

                          Site Visits
•   Identify these as observations, not inspections, to avoid an assumption of
    duty to supervise the work
•   Specify the purpose and the frequency as well as what you are not doing
    during your site visits (e.g. safety obligations)
•   Documenting and photography while on site is critical
     – Multiple design professionals on a project (clear delineation of work)
     – Predecessor design professional
     – Preexisting issues on job –resolve before your entry onto the site
     – Abandoned and restarted projects
•   Regular site visits may result in an assumption of a duty to supervise the
    work
•   We caution against language stating that the DP will be present during
    critical periods
     – What if something goes wrong and you are not there?
     – Breach of duty
                                    © 2014 Wilson Elser. All rights reserved.                                                                              14

    Compliance with Laws & Codes

• Some contracts may mandate compliance
  or specify that failure to maintain
  compliance will place a professional
  consultant in default

                                    © 2014 Wilson Elser. All rights reserved.                                                                              15

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5/4/2021

Compliance with Laws, Codes, Etc.

                                                             © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

Compliance with Laws, Codes, Etc.

       Why is this a problem?

                                                             © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

Limitations of Liability
Drafter beware: Contract ambiguity will
likely be interpreted in favor of the party
who did not draft the document

                 © 2014 Wilson Elser. All rights reserved.                                                                              18

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    Limitations of Liability
    • Evidence that a contract was negotiated
      strengthens the chance of enforcement
       – Put communications about proposed changes
         in writing
    • Most courts will uphold clauses limiting liability if
      they appear overreaching or against public policy
    • Limitations on liability are more likely to be upheld
      than “hold harmless” clauses

                          © 2014 Wilson Elser. All rights reserved.   19

        Limitations of Liability
• Takeaway: There should be a reasonable
  relationship to limiting damages and costs
  of service or design professional
  involvement on a project

                          © 2014 Wilson Elser. All rights reserved.   20

                 Termination

• Termination for convenience—Must
  ensure sufficient notice
• Termination for cause
  – Make sure design professional also has a
    right to terminate for an owner’s breach
  – Make sure there is a cure period

                          © 2014 Wilson Elser. All rights reserved.   21

                                                                                 7
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         Ownership of Documents

• Owner should not be entitled to drawings, professionals
  are selling services (i.e., the building).
• Recommend a non-exclusive license to the owner
• If ownership is insisted, include indemnification language
  and do not represent that the documents are complete
• Electronic data…

                           © 2014 Wilson Elser. All rights reserved.   22

 Contractual Obligations to Defend, Indemnify,
            and Provide Coverage

• Professional liability (PL) policies cover
  professional services of its insureds only.
• Insurer pays on behalf of its insured if
  insured is negligent while performing
  professional services

                           © 2014 Wilson Elser. All rights reserved.   23

    Professional Liability (PL) v.
       General Liability (GL)
       • You may be able to obtain additional insured
         status under another’s GL policy if policy
         language provides for it
          – Caveat—what is promised for in contract, may
            not be provided for under promisor’s policy
       • Design professionals NEED BOTH PL and GL
         policies
          – But must be wary of coverage gaps based on
            different types of policies

                           © 2014 Wilson Elser. All rights reserved.   24

                                                                                  8
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 Indemnification Clauses in Contracts

       Not typically available under PL policy
       of another EVEN IF PROMISED (with a
       few exceptions…limited endorsement)

                                © 2014 Wilson Elser. All rights reserved.   25

 Indemnification Clauses in Contracts

• To the extent you can get it:
   – Hold harmless clauses strictly construed by courts and
      frequently stricken
   – Can only be indemnified by another to the extent of that other
      party’s negligence
   – Indemnification clauses precluded in some states
        • Know your anti-indemnity statutes
   – Consider spilt indemnification clauses in contracts
   – Review contractual obligations against policies under which
      promises are made
   – Even if you are not a contractual indemnitee you may be (or
      seek) additional insured status

                                © 2014 Wilson Elser. All rights reserved.   26

 Insurance Clauses in Contracts—What is Important?

• Requiring that the other party gives you certificate of
  insurance (COI) is NOT enough—Ask for policy!
• COI = evidence that party has insurance but not what
  may be required to afford additional insured status to
  you.

                                © 2014 Wilson Elser. All rights reserved.   27

                                                                                       9
5/4/2021

 Suggested Insurance Clause Language

• Policy of another required (not just a COI)
• Other party’s policy applies on primary basis
• Obligation to provide insurance coverage to defend you
  should be consistent with indemnification clause
   – BUT two clauses are NON-CONTINGENT
   – For “alleged” negligence—immediate trigger
   – If indemnification clause is stricken by a court
     Insurance clause survives
• When it is possible (CGL policy), seek additional insured
  status.

                              © 2014 Wilson Elser. All rights reserved.   28

Takeaways Related to Contractual Risks and Defenses
   • Review your contracts and coverage REGULARLY
      – Review for consistency
      – Make sure policies respond to promises made in
        contracts
      – Keep policies up to date on emerging risks
      – Check to see what rights you are afforded under
        contracts of others (third party beneficiary)
      – Anti-indemnity statutes – know them; vary from
        state to state
   • Enforcement of language is very state specific.
      – Have policies reviewed regularly by a
        knowledgeable professional.
                              © 2014 Wilson Elser. All rights reserved.   29

               What is a “Claim”?
   • Defined:
      – A claim is a demand for something that a party believes they are
        owed as a result of something caused by another party
   • What a claim is not?
      – A claim is not necessarily litigation but litigation grows from a
        claim
   • Types of Claims:
      – Delay Claims
      – Defect Claims
      – Warranty Claims
      – Contract Violation Claims
      – etc.

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   Essential Steps for the Defense of a Claim

• Pre-Claim
   – Save EVERY document from EVERY project
      • If it is not documented, IT DID NOT HAPPEN
   – Changes to the project or scope of work
      • Make sure to formally document all changes – If it is
        not documented, IT DID NOT HAPPEN
• Post-Claim
   – Immediately
      • Report to your carrier
      • Save documents
      • Work with counsel

             Claim Trends
     • Abandoned, Suspended, Restarted
       Projects
     • Novel / new project type – green build,
       cannabis production facilities, modular
     • Code Changes
     • Scope Creep
     • “Warranty” statements / assuming
       heightened standard of care
     • Uptick on Fee claims and delay claims
                          © 2014 Wilson Elser. All rights reserved.                                                                              32

     Risks Related to Restarted Project
    (DP Previously Involved on Project)

 Before Resuming Work
    – Identify the Scope of Work!
    – Document conditions prior
      to doing so
    – Beware of “time is of the
      essence” language; makes
      the DP the guarantor of the
      time schedule and is unwise
    – Particularly problematic for
      restarted projects!
                                                                                                                                                 33

                                                                      © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

                                                                                                                                                           11
5/4/2021

      Risks From Green or Alternative Design

                                                                    © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

             Identify all applicable code
       requirements and performance criteria

      e.g. Superstorms (negligent design for
        failure to design consistent with flood
        protection); exterior envelope litigation
        (adequacy of material and requisite
        thickness of materials used)

                        © 2014 Wilson Elser. All rights reserved.                                                                              35

Risks Related to “Scope Creep”

• Desire to provide added value to the cost of services
• Performance of services outside the documented scope
  or outside the traditional professional services performed
• Failure to document change in scope of work
• Failure to confirm whether services you agree to perform
  under the contract (or outside the original contract) are
  consistent with coverages
• Mischaracterization of your title or duties on a project

                        © 2014 Wilson Elser. All rights reserved.                                                                              36

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Risks Related to “Warranty” statements /
 assuming heightened standard of care
(1)             Advertising/marketing materials – avoid guarantee of
                specific results

                e.g. website; others’ marketing materials for the
                project

(2)             Assuming an expansive role on project by
                ambiguous language in contract documents / scope
                of work

                e.g.                  design manager; owner’s agent
                                                                                  © 2014 Wilson Elser. All rights reserved.                                                                              37

             Risk Management / Mitigating Losses

  •     Document, document, document
  •     Risk training for employees (documented and regularly)
  •     Vet clients and subconsultants
  •     Present options to client and document client’s directives /selections in design,
        materials
         – Outline advantages and disadvantages
         – Impact on cost, performance, schedule and aesthetic
  •     Document Retention: what to keep and for how long
  •     Project Closeout Procedures (checklist)
         – Review scope v. actual work on project
         – Client signs off on completion
         – Retain detailed project file / checklist – notices to agent of incidents; COs;
            RFIs and responses; final approvals; contract documents; policies / Cos;
            communications (electronic/written); observation logs/photos, etc.

                                                                                                                              © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

                                                                           Questions?
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      39 Offices located throughout the United States

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                                                                                  © 2021 Wilson Elser. All rights reserved.

                                                                                                                                                                                                                   13
5/4/2021

               Thank You!
Wendy Testa, Esq.
Partner
Wilson Elser – Philadelphia
(o) 215.606.3910
(m) 610.331.4487
Wendy.testa@wilsonelser.com

Michael Beckelman, Esq.
Partner
Wilson Elser – Houston
(o) 713.353.2028
(m)832.250.3343
Michael.beckelman@wilsonelser.com

                                    © 2012 Wilson Elser Moskowitz Edelman & Dicker LLP. All rights reserved.

                                                                                                                    14
Michael
  Beckelman
  Partner

  Contact
  Houston
  p. 713.353.2028
  f. 713.785.7780
  michael.beckelman@wilsonelser.com

                                            Michael Beckelman is the regional chair of the Complex Tort & General Casualty practice and
Services
                                            a co-chair of the rm’s Design Professional practice. Mike focuses on complex litigation
Architects & Engineers                      matters in both state and federal courts. Mike handles general, product, professional and
Aviation & Aerospace                        premises liability; construction and architect and engineer liability; trucking and
                                            transportation; and commercial litigation.
Complex Tort & General
                                            Mike has obtained substantial results through early case development and the prompt
Casualty
                                            resolution of claims. Always the “voice of reason,” Mike is a consummate negotiator who
Latin America                               often settles even the most di cult cases. Although based in Houston, Mike has experience
Municipal/Local Government                  handling cases throughout New York and Texas. He also has handled negotiations on behalf
                                            of clients and insurers in Oklahoma, Louisiana and New Mexico.
National Trial Team
                                            Prior to joining the rm, Mike served with the Manhattan District Attorney’s O ce as an
Professional Liability & Services
                                            assistant district attorney and with the O ce of Special Narcotics Prosecutor for the City of
Product Liability, Prevention &             New York. Mike has extensive experience with investigations and grand jury proceedings and
Government Compliance                       has tried numerous cases to verdict.

Transportation
                                            Areas of Focus
Canada
                                            Architect & Engineer Malpractice
                                            Mike focuses on the defense of architects, engineers and surveyors in connection with
Admissions                                  construction defect, personal injury and professional malpractice claims. He has experience
Bars                                        in defending design professionals, contractors, commercial construction rms, construction
Texas, New York                             managers and owners across Texas, particularly with regard to defense, indemnity and
                                            coverage issues as well as design defect issues. In addition, Mike has successfully represented
Courts
U.S. District Court, Northern District of   claims asserted against construction contractors in both construction defect and personal
Texas                                       injury claims.
U.S. District Court, Eastern District of    Complex Tort & General Casualty
Texas
                                            Mike has defended a broad spectrum of general liability matters, including premises liability,
U.S. District Court, Western District of    premises security liability, vehicle-related matters and other forms of personal injury cases.
Texas
                                            His experience also includes the defense of professional liability claims, product liability
U.S. District Court, Southern District of   claims and coverage issues.
Texas
                                            Trucking & Transport
                                            Mike has represented trucking companies in state and federal courts throughout Texas in
Memberships & A liations                    litigation arising from property loss, severe personal injuries and fatalities. He also has
New York State Bar Association              experience representing trucking companies in claims brought pursuant to the Carmack
Texas Bar Association
                                            Amendment. Mike is currently representing several companies after having been appointed
Houston Bar Association
                                            counsel by various truck insurers. He is a member of the rm’s Crisis National Response
                                            Team, participating in the initial response to and investigation of trucking accidents.
Education
University at Bu alo School of Law,   Product Liability
J.D., 1997
                                      Mike focuses on the defense of products liability claims asserted against a wide variety of
Binghamton University, B.A., 1993     products, including claims for design, manufacturing and marketing defects. His products
                                      liability defense experience includes defending manufacturers and designers of medical
Certi cations/Licenses                devices, appliances, amusement attractions, pharmaceutical products, mountaineering
                                      equipment and industrial/oil eld equipment, among others.

                                      Representative Matters
                                      Represented a large bus company in connection with an accident that resulted in 13 fatalities
                                      and 14 injured parties. Although the accident occurred in Mexico, suit was led in Texas by
                                      many of the survivors and families of many of those who died. Negotiated a global settlement
                                      that was very favorable to the bus company very early in the litigation.
                                      Representing a tra c engineer in connection with a fatal vehicle accident on a toll road in
                                      Houston. Plainti s have led suit asserting that the accident was proximately caused by
                                      improper signage on the roadway. Plainti s have also led suit against various municipalities
                                      and consultants with regard to the incident.
                                      Represented a structural engineering rm in litigation involving numerous design
                                      professionals and construction contractors in which a hospital owner sought in excess of $20
                                      million in damage sustained to the structure’s roo ng system and resulting water intrusion
                                      during both Hurricane Rita and Hurricane Ike.
                                      Recently obtained the dismissal of all claims asserted against an amusement attraction
                                      manufacturer in a design defect claim stemming from the injury of an attraction participant
                                      who sought to recover for multiple injuries sustained while participating on the ride.
                                      Representing the designer and manufacturer of a surgical cautery device in a case brought by
                                      the parents of a three-year-old surgical patient that alleges the child was caused to sustain
                                      facial burns as a result of defective design and/or manufacture of the product.
Wendy D. Testa
  Partner

  Contact
  Philadelphia
  p. 215.606.3910
  f. 215.627.2665
  wendy.testa@wilsonelser.com

                                           Wendy Testa is a co-chair of the rm’s Complex Tort & General Casualty and Design
Services
                                           Professional practices. She focuses her legal practice on risk management services, defense
Accountants                                and insurance coverage litigation in the areas of professional liability, including
Architects & Engineers                     architects/engineers, brokers/agents and accountants; construction/construction defect;
                                           product liability; transportation/trucking; and contract drafting, negotiating and risk transfer
Complex Tort & General
                                           disputes.
Casualty
                                           First and foremost, Wendy is an aggressive advocate for her clients. She develops strong
Construction                               client relationships through trust, responsiveness, reliability and attention to detail. From
Employee Bene ts                           inception to the successful conclusion of a case, her skills, experience and focus are all
                                           directed toward achieving a cost-e ective resolution strategy in anticipation of her clients’
Employment & Labor
                                           needs. Wendy is an e cient and e ective litigator as a result of her responsiveness and
Health Care Law                            attention to detail and the key issues of each case.
Insurance & Reinsurance                    Wendy handles defense and coverage matters for the U.S. and London insurance markets.
Coverage                                   Her understanding of these markets and varied underwriting practices as well as her
                                           experience in drafting and interpreting policy language contributes to her e ectiveness with
Lawyers
                                           coverage analysis and as a litigator.
Medical Malpractice & Health
Care                                       Areas of Focus
Pro Bono                                   Professional Liability
Product Liability, Prevention &            Wendy defends professional clients, with an emphasis on architects, engineers, brokers and
Government Compliance                      real estate professionals. Working closely with nationwide clients, she provides pre-claim
                                           added value risk management services, including contract review and drafting, seminars,
Professional Liability & Services
                                           webinars and continuing education programs. Her primary focus when formulating a defense
Transportation                             is to cost-e ectively resolve presuit and litigated matters or those pending before
                                           administrative agencies and licensing boards.
Canada
                                           Architects & Engineers
                                           Wendy is experienced in the defense of architects, engineers, construction managers, design
Admissions
                                           builders and surveyors and is proud to co-chair the rm's Design Professional practice team.
Bars                                       She regularly engages in nationwide client risk management services for design professionals
Pennsylvania, New Jersey
                                           including contract review, drafting and negotiating and providing seminars and continuing
Courts                                     education programs on risk management tools, risk transfer, trending claims and hot topics
Supreme Court of the United States         in the construction industry. Wendy is barred and has extensive experience in defending
U.S. Court of Appeals, Third Circuit       architects and engineers in Pennsylvania and New Jersey.
U.S. District Court, District of New
Jersey                                     Agents & Brokers
U.S. District Court, Eastern District of   As part of her professional liability practice, Wendy represents wholesale and retail insurance
Pennsylvania                               agents and real estate professionals, including title agents. The scope of services she provides
                                           is inclusive of those she provides for construction professionals.
U.S. District Court, Western District of      Construction / Construction Defect
Pennsylvania
                                              Wendy’s practice in this area goes hand in hand with her signi cant experience defending
                                              design professionals. She has defended contractors, commercial and residential construction
Memberships & A liations                        rms, construction managers and project owners in primarily in Pennsylvania and New
Philadelphia Bar Association                  Jersey, including disputes related to contractual defense, indemni cation and insurance
Camden County Bar Association                 coverage issues as well as multi-party, high exposure bodily injury and construction defect
National Association of Women in
                                              claims. Wendy is the co-editor and contributor to the Wilson Elser Artisan/Construction Defect
Construction
RIMS: The Risk Management Society             Law 50 State Review.
Professional Liability Underwriting Society
PLUS Mid-Atlantic Chapter Steering
                                              General Liability
Committee, Mid-Atlantic Chapter Chair
2011-2012, 2016-2017                          As a co-chair for the rm’s Complex Tort and General Casualty practice team, Wendy has built
Claims Litigation Management Alliance         a diverse civil litigation practice handling premises, auto and liquor liability matters on a
(CLM); member Construction Claims
                                              national basis for several Fortune 500 companies and other large self-insured clients. Wendy
Community; member Claims College
Committee; member Conference                  provides her clients with a high level of responsiveness and personalized attention to assist in
Committee                                     risk and crisis management at the pre-litigation phase of potential claims and when preparing
                                              a defense in litigated matters. Representative clients include construction rms, commercial
Awards & Distinctions                         and residential property owners and management companies, restaurants, and food and
                                              beverage manufacturers, suppliers and distributors. In addition, Wendy has co-authored
Selected for inclusion
                                              Wilson Elser’s 50-state Liquor Liability Law Review for the past several years.
in Pennsylvania Super Lawyers, for
Professional Liability: Defense
Litigation, 2016 - 2018                       Insurance Coverage
                                              Wendy's experience includes both coverage litigation and drafting coverage opinions for
                                              insurers related to commercial general liability as well as professional liability policies. She
Education
                                              has obtained very favorable results through motion and appellate practice of coverage
Widener University School of Law, J.D.,       disputes for her clients.
1997

The Pennsylvania State University,            Product Liability
B.A., 1992
                                              A large portion of Wendy’s practice involves the defense of product liability claims against
                                              domestic and foreign manufacturers and suppliers of construction equipment, industrial
Certi cations/Licenses                        machinery; and food and beverage products. She advises clients and aggressively defends
                                              their products in complex cases arising out of a product's design, manufacture or marketing.
                                              These cases often involve wrongful death and catastrophic injuries, including brain damage,
                                              amputation and paralysis, as well as substantial economic claims.

                                              Representative Matters
                                              Obtained Pennsylvania Superior Court reversal of lower court decision regarding the
                                              interpretation of a claims made policy and a manuscript endorsement related to when a
                                              claim is made for purposes of coverage a orded to a claim arising from personal injury
                                              sustained in a nursing home.

                                              Obtained summary judgment in the Superior Court of New Jersey, Burlington County as a
                                              result of asserting contractual claims on behalf of a beverage equipment supplier for defense,
                                              indemni cation and insurance coverage against a bankrupt manufacturer related to a
                                              signi cant multi-party re loss claim. The client paid nothing in a $750,000 settlement and
                                              was reimbursed for all defense fees/costs. As a result of the successful defense strategy in
                                              the New Jersey litigation, a global settlement of a number of other nationwide re loss claims
                                              involving the same manufacturer and its insurer was achieved with no contribution from the
                                              client.

                                              Won motions for summary judgment based on contractual defense/indemni cation issues in
                                              construction litigation matters in the Superior Courts of New Jersey, Burlington and Camden
                                              Counties and in the Court of Common Pleas, Philadelphia County.

                                              Won motions for summary judgment (in three separate matters) based on Pennsylvania’s
                                              statutory employer defense in construction-related personal injury lawsuits in Court of
                                              Common Pleas, Philadelphia County.

                                              Won appeal related to a contractual indemni cation and insurance coverage dispute between
                                              contractors in the Superior Court of Pennsylvania, Eastern District.
Obtained favorable settlement of a construction-related wrongful death action in Burlington
County. As a result of obtaining summary judgment on behalf of owner and general
contractor related to a third-party contractual indemni cation claim against plainti ’s
employer/contractor, the matter resolved for $1.75 million total with plainti ’s employer
assuming all defense fees and costs of our client as well as a signi cant portion of the
settlement.
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