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This program has been approved by the Board of Continuing Legal Education of the Supreme Court of New Jersey for 3 hours of total CLE credit. Of these, 0 qualify as hours of credit for Ethics/Professionalism, and 0 qualify as hours of credittoward certification in civil trial law, criminal trial law, workers compensation law and/or matrimonial law.

ConstruCtion insuranCe: What ConstruCtion

Counsel should KnoWPrepared in connection with a Continuing Legal Education course presented

at New York County Lawyers’ Association, 14 Vesey Street, New York, NY presented on Tuesday, April 16, 2013.

P r o g r A m C o - s P o N s o r :

NYCLA’s Construction Law Committee

P r o g r A m m o d E r A t o r :

Joel Sciascia, Pavarini McGovern LLC, Co-chair NYCLA’s Construction Law Committee

P r o g r A m F A C u L t Y :

Lawrence J. Bartelemucci, Anderson Kill & Olick, P.C.Joe Charczenko, Construction Risk Partners

Josh Gold, Anderson Kill & Olick P.C.

3 TRANSITIONAL & NON-TRANSITIONAL MCLE CREDITS: This course has been approved in accordance with the requirements of the New York State Continuing Legal Education Board for a maximum of 3 Transitional & Non-Transitional credit hours: 2 PP; 1 Skill

Information Regarding CLE Credits and Certification

Construction Insurance: What Construction Counsel Should Know April 16, 2013; 6:00 PM to 9:00 PM

The New York State CLE Board Regulations require all accredited CLE providers to provide documentation that CLE course attendees are, in fact, present during the course. Please review the following NYCLA rules for MCLE credit allocation and certificate distribution.

i. You must sign-in and note the time of arrival to receive your

course materials and receive MCLE credit. The time will be verified by the Program Assistant.

ii. You will receive your MCLE certificate as you exit the room at

the end of the course. The certificates will bear your name and will be arranged in alphabetical order on the tables directly outside the auditorium.

iii. If you arrive after the course has begun, you must sign-in and note the time of your arrival. The time will be verified by the Program Assistant. If it has been determined that you will still receive educational value by attending a portion of the program, you will receive a pro-rated CLE certificate.

iv. Please note: We can only certify MCLE credit for the actual time

you are in attendance. If you leave before the end of the course, you must sign-out and enter the time you are leaving. The time will be verified by the Program Assistant. Again, if it has been determined that you received educational value from attending a portion of the program, your CLE credits will be pro-rated and the certificate will be mailed to you within one week.

v. If you leave early and do not sign out, we will assume that you left at the midpoint of the course. If it has been determined that you received educational value from the portion of the program you attended, we will pro-rate the credits accordingly, unless you can provide verification of course completion. Your certificate will be mailed to you within one week.

Thank you for choosing NYCLA as your CLE provider!

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Construction Insurance: What Construction Lawyers Need to Know

Tuesday, April 16, 2013 6:00 PM to 9:00 PM

Program Co-sponsor: NYCLA's Construction Law Committee

Moderator: Joel Sciascia, Pavarini McGovern LLC, Co-chair NYCLA's Construction Law Committee

Faculty: Lawrence J. Bartelemucci, Anderson Kill & Olick, P.C.; Joe Charczenko, Construction Risk Partners; Josh Gold, Anderson Kill & Olick P.C.

AGENDA

5:30 PM – 6:00 PM Registration 6:00 PM – 6:10 PM Introductions and Announcements 6:10 PM – 6:30 PM Risk in Construction Joe Charczenko, Construction Risk Partners 6:30 PM – 6:50 PM The State of the NY Construction Market Joe Charczenko, Construction Risk Partners 6:50 PM – 7:10 PM Coverage Basics for Construction Insurance Joe Charczenko, Construction Risk Partners 7:10 PM – 7:20 PM BREAK 7:20 PM – 8:10 PM Contractual Specifications and Due Diligence Lawrence J. Bartelemucci, Anderson Kill & Olick, P.C. 8:10 PM – 8:50 PM Navigating the Insurance Claims Process Josh Gold, Anderson Kill & Olick P.C. 8:50 PM –9:00 PM Questions and Answers Panel

New York County Lawyers’ Association

Continuing Legal Education Institute 14 Vesey Street, New York, N.Y. 10007 • (212) 267-6646

Construction Insurance: What Construction Lawyers Need to Know

Tuesday, April 16, 2013 6:00 PM to 9:00 PM

Program Co-sponsor: NYCLA's Construction Law Committee

Moderator: Joel Sciascia, Pavarini McGovern LLC, Co-chair NYCLA's Construction Law Committee

Faculty: Lawrence J. Bartelemucci, Anderson Kill & Olick, P.C.; Joe Charczenko, Construction Risk Partners; Josh Gold, Anderson Kill & Olick P.C.

Table of Contents

New York Construction Insurance Market Update & Understanding Your Risk Management & Insurance Programs By Joe Charczenko, Construction Risk Partners Construction Insurance Outline By Lawrence J. Bartelemucci, Anderson Kill & Olick, P.C. Construction Claims Checklist By Josh Gold, Anderson Kill & Olick P.C. Articles

• Minimize Risk in Renovation Projects, By Lawrence J. Bartelemucci • Property Insurance and Disaster Recovery After Sandy, By Joshua Gold and Lawrence J.

Bartelemucci • Understanding Time Sensitive Provisions, By Joshua Gold • The Special Perils of Insurance Coverage, By Joshua Gold • Accessing Your Excess Insurance, By Joshua Gold

Faculty Biographies

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New York Construction Insurance Market Update & Understanding Your Risk Management & Insurance Programs

April 2013

Joe Charczenko – [email protected]

Program Agenda

• Risk in Construction

• State of the NY Construction Market:

– Impact on Legal Community

• Coverage Basics for the Construction Industry

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Contracting Risk Profile

• Project Delivery Methods– CM‐at‐Risk – Traditional Method #1– Design Bid Build – Traditional Method #2– Design Build – Design and Construction are Contracted Together

to One Entity.– Integrated Project Delivery (IPD) – Design and Construction

Teams are Contracted to Work Together to Deliver Project.– Public Private Partnership (PPP) – Project is Financed,

Designed, Constructed, and Operated by Private Contracting Group.

Build it Like the Picture…Build

Draw the Picture, then Build it…

DesignBuy the Paper, Draw it, then Build it…

Bank

Less Risk More Risk

3

Risk In Construction…

• Construction is Risky Business:

– Complex Project Finance

– Challenging Labor Markets

– Contractual Litigiousness

– Evolving Supply Chain

– Exposure to Unsafe Conditions

– Constantly Changing Case Law

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Risks on Construction Projects

• Lending & Banking

– Project & Contractor

• Labor Shortage or Strike

– Union & Open Shop

• Permitting & Political Issues

– Vary by Project

• Numerous Complex Contracts

– Jurisdictional Variances

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• Design Errors

– Evolving Technology

• Constructability Issues

– New Materials & Processes

• Unknown Site Conditions

– Environmental Remediation

• Contractor / Supplier Default

– Banking Impact

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• Quality Control:

– Construction Defect

• Material Availability

– Supply Chain

• Schedule

– Project Completion

• Natural Disaster

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• Life, Safety & Health:

– Construction Trades

– Public Exposure

– Cranes / Hoists

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New York Construction Insurance Market Update

April 2013


NY Construction Insurance Market

• The Perfect Storm… for Insurance Companies:– Economic Downturn…

• The Carriers have Received Less Premium

– Worker’s Compensation Reform (2007)…• The Reform Hurt the Profitability of the Carriers

– NYS Labor Law §240…• Claim Values Continue to Rise in Frequency and Severity

– Poor Investment Returns…• Carriers Need More Underwriting Profit

• These Factors Have Created a Capacity Shortage for NY Construction Risks

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• What’s Different About this “Hard Market”:

– Driven by Loss Portfolio’s of NY Construction Risk:

• Workers’ Compensation

• General Liability

• Umbrella

– Capacity is Available, but Carriers are Choosing Not to Deploy It

– Not Currently Impacting Other Business Sectors or Geographies in a Significant Way

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• What is the Impact of this Market Shift?– Construction Risks are Seeing Rate Increases

• Varies by Line, Program Type, Carrier, etc.

• Long‐Term Project Rates Have Increased

– Workers Compensation:• Rates / Limits are Statutorily Driven

– General Liability (Primary):• Rate Increases:

– Guaranteed Cost – Between 10% and 100%

– Loss Sensitive – Between Flat and 50%

• Umbrella Carriers Are Requiring Higher Primary Limits

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• What is the Impact of this Market Shift?– Umbrella (Excess):

• Most Impacted Line of Business with Very Limited Competition / Capacity

• Significant Rate Increases – 10% to 200%• Raising of Attachment Points – Mostly to $2M for Contractor Programs and $5M for Projects

– Captive Development– Coverage Restrictions (mostly with 2nd Tier Markets):

• Action Over Exclusions• Construction Defect Exclusions• Subcontractor Warranties• Residential Exclusions

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• Impact to Legal Community:

– Added Emphasis on the Contract

– Impact on Procurement

• Project Insurance (CIPs)

• Large Deductibles / SIRs

• Exclusions

– Impact on Claims

• Exclusions

• Completed Operations

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Coverage Basics for theConstruction Industry

April 2013

WORKERS’ COMPENSATION

• 1st Party Coverage• Workers’ Comp (Part #1):

– Job‐related injuries to employees– Benefits are statutory– Covers lost wages and medical

expenses– Subcontractor employees who are

uninsured

• Employer’s Liability (Part #2):– Covers imposed liability for

employee injuries in course of job not covered by Part #1

– Covers suits from spouses or dependents

– Has 3rd Party Component

• Coverage Exceptions:– Subcontractor employees with

workers’ comp coverage– State specific willful misconduct

states– No coverage for lost time

conducting accident investigations, paperwork, reporting, lost productions, etc.

• Pricing:– Experience Modifier (EMR)

• 3‐year look back, excluding current• Compares company loss

performance versus like contractor experience

• < 1.0 = Better than Average• > 1.0 = Worse than Average

– Other Factors:• Payroll (Amount, Type & Location)• Safety Programs & Controls

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GENERAL LIABILITY

• 3rd Party Coverage• Covers Bodily Injury & Property

Damage (BI/PD) or Advertising Injury to 3rd Parties Arising Out of:– Job site operations– Office locations– Completed Operations

• Defense is Typically Outside Coverage Limits

• Common Claims:– NY Labor Law– Construction defect– Loss of use for owner’s property

• Common Policy Exclusions:– Residential, Mold, EIFS, Lead, Silica– EPLI, PL, Pollution– NOTE: Sub policies can have major

gaps

• “Typical” Coverage Exceptions:– Intentional acts– Breach of contract– Damage to client’s work– Repair of client’s defective work– Comp ops is intended to cover

resulting damage (bodily injury or property) arising out of your defective work

• Pricing:– Loss experience (3‐7 years)– Contractual risk management

• Contract wording: AI, indemnity• Procedures: COIs, contract execution

– Exposure make‐up• Volume (WIP & Sub), state, payroll

– Safety – public and employee

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AUTO & UMBRELLA

AUTO:

• 1st and 3rd Party Coverages• Physical Damage:

– Damage to vehicles (owned or leased) from perils such as collision, theft, fire or vandalism

• Auto Liability:– BI/PD to 3rd parties caused by an

accident resulting from the ownership, maintenance or use of a covered auto

• Coverage Exceptions:– Intentional acts– Liability from use of construction

equipment

• Pricing:– Loss experience (3‐7 years)– Fleet safety, driver safety checks

UMBRELLA:

• 3rd Party Coverage• Excess Capacity for:

– General Liability– Auto Liability– Employer’s Liability

• Coverage:– Typically follows the form of the

underlying coverage

• Pricing:– Premium paid on underlying coverages– Market conditions– Loss Control Procedures

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PROPERTY & BUILDER’S RISK

PROPERTY & EQUIPMENT:

• 1st Party Coverages• Physical Damage:

– Damage to property or equipment (owned or leased) from perils such as collision, theft, fire or vandalism

– Often includes office location and contents, trailers and equipment

• Coverage Exceptions:– Loss of production and down time– Normal wear and tear– Mechanical break down

• Claim Issues:– Claim must be triggered by occurrence– Prompt reporting requirement– Insurance company inspection

• Pricing:– Value / Location– Maintenance Procedures

BUILDER’s RISK:

• 1st Party Coverage• Covers Damage to the Work

– Direct & Indirect Limit– Forms vary significantly by company– Defined Limits for various perils

• Typical Exclusions:– Faulty workmanship or design– Mechanical breakdown, wear & tear– Normal settling of building– Consequential loss, liquidated damages

• Coverage Issues:– Owner Purchased:

• GC / Subs a Named Insured• Deductibles, Limits, Terms

• Pricing:– Location, Schedule, Values

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POLLUTION & PROFESSIONAL

POLLUTION LIABILTY (CPL):

• 3rd Party Coverages• Covers BI/PD for Pollution Liability:

– Defense and clean up costs for events arising out of contractor operations

– Vicarious pollution liability from subs– Defense is typically within limits– Claims Made or Occurrence “Trigger”

• Claim Issues:– Project Specific Exposures– Subcontractor should name GC as an

additional insured

• Pricing:– Exposures– Trades Performed

PROFESSIONAL LIABILITY:

• 1st & 3rd Party Coverages• Covers BI/PD Arising Out of the

Failure to Deliver Upon Professional Obligations within a Contract:

– 1st Party – Insufficient limits for work subcontracted (design or other)

– 3rd Party – BI/PD resulting from clients professional negligence (failure to meet the standard of care)

– Typically Claims Made “Trigger”

• Coverage Issues:– Upward trend in PL losses– Standard of Care

• Pricing:– Contractual Responsibilities, Holding of

Subcontracts, Engineering Required

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OCP & RRP

OWNER’s PROTECTIVE:

• Policy is Purchased by GC in the Name of the Owner for Liability Arising Out of:

– Operations performed for the Owner by the GC for a specific project

– Owner’s own acts or omissions in supervision of GC’s work

• Why an Owner Wants an OCP:– Separate pricing & limits for owner– Primary insurance– No cancellation w/o owner knowledge

• Coverage Issues:– No completed operations coverage– Not covered by GC’s umbrella

• Pricing:– Values, Payrolls, Location, Schedule

RAILROAD PROTECTIVE:

• Policy is Purchased by GC in the Name of the Railroad for Liability Arising Out of GC’s Operations

– Typically required for work within 50 feet of railroad

• Coverage Issues:– GC often required to buy RRP as well as

provide indemnification and additional insured status to railroad

• Pricing:– Railroad volume (trains / hour)– Work performed within 50’ of track– Type of railroad (passenger / freight)– Subrogation Language

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SDI & Financial Lines

SUB DEFAULT INSURANCE:

• 1st Party Coverage• Covers Financial Loss as a Result of

the Default of a Subcontractor– Acts like a “surety wrap‐up”– Covers all subs on a covered project

• Coverage Considerations:– Large Deductibles– Validity of Default– GC required to evaluate subcontractors

• Claims Issues:– Engagement of Subcontractor Principal

& Surety in Claim Process

• Pricing:– Ability of GC to select and manage

subcontractors

FINANCIAL LINES COVERAGE:

• Crime, D&O, Fiduciary & EPLI• 1st & 3rd Party Coverages• Purchased Separately or as a Package• Coverage Aspects:

– Crime – Losses as a result of theft or burglary . Often includes employees and computer fraud.

– D&O – Covers liability of directors & officers in the performance of their duties in the leadership activities.

– Fiduciary – covers liability of fiduciaries of company sponsored pension plans.

– EPLI – Covers company for liability against employment related claims such as harassment or discrimination.

• Pricing:– Relatively inexpensive coverage that

provides significant balance sheet protection.

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Thank You…

April 2013


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CONSTRUCTION INSURANCE Larry Bartelemucci

A. Types of Insurance:

1. CGL policies.

2. Wrap-ups: a. CCIP

b. OCIP

3. Builders Risk.

PITFALLS TO AVOID WHEN NEGOTIATING THE INSURANCE ASPECTS OF A CONSTRUCTION CONTRACT A. Key Contractual Provisions That Should Be In Every Contract (Owner-Builder, Builder-

Subcontractor).

When it comes to insurance coverage on a construction project, all parties typically share the goals of maximizing coverage and getting what the parties think they are paying for. What is good for the owner is typically good for the builder is typically good for the subcontractor. Certain issues should be addressed in every set of insurance specifications.

1. Additional Insureds: Parties higher up the project chain (owner-builder-sub) should be additional insureds on the policies of lower tiered participants. Such status gives the additional insured party the ability to make direct claims against the policy on which they are an additional insured, and, sometimes more importantly, entitles the additional insured to defense coverage.

b. There are two basic ways to write additional insured coverage – scheduled and blanket

endorsements.

(1) Scheduled – (CG 20 10 (ongoing), 20 37 (completed ops), 20 26 (ongoing)). Additional insured partied are listed – or scheduled – in the endorsement, so it eliminates the need to prove additional insured status. Preferred endorsement, as long as filled out properly (all names, accurately stated, corrrect location).

(2) Blanket – (CG 20 33 (ongoing – “for whom you are performing operations” ). Limited to situations where an underlying contract requires inclusion as an additional insured; requires proof.

(3) Many forms (refer to example list provided in materials from Indianafarmers.com) that can be tailored to individual project. There are forms for owners who are renting, mortgagees, architects, etc. Find the right form or forms for your situation.

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c. Contracting party should be specifically required to include higher tier project member

as an additional insured. Absolutely necessary for blanket endorsements. May not be necessary if scheduled endorsements used, but is belt-and-suspenders in case wrong endorsement is used or scheduled endorsement filled out improperly. For example, I have seen many scheduled endorsements filled out to say “parties required by contract,” essentially improperly converting it to a blanket endorsement.

1. Primary and Non-Contributory: Contract should specifically require that the insurance provided by the contractor is “primary and non-contributory.” Multiple policies may “cover” the same occurrence, and so the priority of coverage must be determined. Most policies attempt to shift responsibility elsewhere by including a provision establishing that the policy is excess over other responding policies, unless the policy is required to be “primary and non-contributory.” If this clause is not present, an additional insured’s own policy may be forced to respond and/or recovery may be delayed.

2. Insurance Ratings and State Admissions:

We typically require certain minimum AM Best ratings indicating the insurance company’s financial outlook and size. If a company is too small or is negatively trending, you may want to consider using a different company. Using only insurance companies that are admitted to do business in a given state may also have benefits to the policyholder. For example, using an admitted carrier in NY allows the policyholder access to the insurance fund in case of insurance company insolvency, avoids excess lines tax and stamping fee (3.8%), and ensures the use of regulated and approved forms.

3. Problem of “Upside-Down” Policies: Typical CGL policies are written “comprehensively” – my term – meaning that they cover all risks except those specifically excluded. We have encountered CGL policies [will search for forms] that have instead been written to exclude all risks other than those specifically designated as covered. As it is virtually impossible to account for all potential risks, the upside-down policy should be avoided. We attempt to avoid this problem by specifying that policies be comprehensive.

4. Project-Specificity – Policy or Aggregate:

Some policies are written to cover all or a set of the policyholder’s property or projects. When this is the case, there is a risk that the aggregate limits will be eroded by occurrences on other projects/properties. Coverage is no good if there is nothing left by the time your claim is made. To avoid this issue, we typically require that there be a separate per-project aggregate limit or, although more expensive, a stand-alone project-specific policy.

5. Ongoing Operations Versus Completed Operations Coverage:

Policies should have coverage for both.

a) The general difference between these two types of coverages:

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(1) Ongoing operations coverage – covers occurrences for the contractor’s activities while still performing work on the project site.

(2) Completed operations – covers occurrences arising out abandoned or completed operations, such as latent defects discovered after project completion.

b) Duration of completed operations. Some policies or policy endorsements will limit the

duration of completed operations coverage. Such duration should be no shorter than the applicable statute of limitation or repose.

6. Waivers of Subrogation: Good idea? Waivers of subrogation are agreements whereby a policyholder waives its insurance company’s right to step into the policyholder’s shoes and sue the potential “wrongdoer” to recover monies it pays out under a policy. Whom do they benefit? My general opinion is that the only parties that benefit from the absence of waivers of subrogation are insurance companies.

a) The absence of such a waiver creates the following risks:

1. Delays to the project and potential contractor default if it becomes bogged down in litigation.

2. Conflict between project team members.

3. Additional time and expense.

b) And why? So that the insurance company can recoup “losses” for risks that it happily collected premiums to accept.

7. Excess Coverage:

Follow form or umbrella? Excess coverage can be tailored in two ways:

a) Follow form – follow form coverage generally covers whatever is covered in underlying

policies (with some exclusions). If it is covered below, then the excess policy will “follow form” and cover the same risks.

b) Umbrella – umbrella coverage is generally written in the format of a stand-alone policy, covering its own set of risks. While sometimes this can result in coverage that is broader than the underlying coverage, it can also create risks that there are gaps in coverage.

c) We typically like to specify follow form coverage for stand-alone projects where the risks are reasonably predictable, as long as the underlying coverage is sufficient and tailored to that project. But the policyholder should always review which option is best for that given project and which policy benefits it the most.

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8. Builder’s Risk Coverage The risks addressed by Builder’s Risk coverage differ from CGL and other liability coverage. [Discuss with Joe here what builder’s risk is and how it fits within the project’s risk management structure]

9. Read the Policy! Insurance certificates are worthless – it says so right [there]. They can also be inaccurate or, even worse, forged or fraudulent. There is no substitute for reading the policy.

B. Troublesome Endorsements. Even the best tailored insurance specifications will be worthless if the policies themselves do not reflect those specifications or exclude risks that are inherent in the type of work being performed. This makes it imperative that both higher tiered project team members and the policyholders themselves work with their insurance advisors to vet the actual policies and endorsements. Potential minefields to be aware of include:

1. Project location. Some policies will be endorsed to limit the policy’s coverage to specific locations identified in the policy. Such limitations need to be reviewed.

a) War story – Contractor’s CGL policy for all projects was written like a property policy,

and limited coverage to only home office. None of the work locations were covered.

b) Also need to worry about a location being too specific, even if accurate. For example, a project location endorsement (such as CG 21 44) may inadvertently exclude work performed on adjoining property (i.e., underpinning, shoring, access work, protections).

2. Work Type. Policies need to be vetted to ensure that the no part of the work’s scope is excluded.

a. War story – Prominent NYC demolition contractor produced a policy that explicitly

excluded demolition work. Every project put their entire business and the property owner at risk.

d. Remediation work – asbestos, mold, hazardous materials etc. can all be, and often are, excluded. This is not a good thing if you are a remediation contractor or an owner contracting for remediation work. Additional insurance addressing these risks needs to be obtained.

e. Underpinning, excavation, shoring (subsidence) – War story: the first tendered policy specifically written to cover an underpinning project excluded coverage for losses related to underpinning.

f. Do “professional services” include supervision? It depends on how the specific endorsement is written. For a construction manager, supervision is its primary function.

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2. Work Force. Own labor or subcontractors? Some exclusions limit who can provide labor on the project.

a. Elimination of coverage for subcontractor work to avoid the subcontractor exception to the your work exclusion (as discussed by David). Obviously bad for the policyholder. War story – specified that work can only be done by subcontractors, and then excluded coverage for subcontractor work.

b. Risk of coverage loss if the contractor’s own labor performs work (scheduled U650-0810).

3. Work Product, “Means & Methods,” and Specific Materials. Some endorsements will exclude losses arising ot of certain work product, “means & methods,” and materials.

a. Silica – Losses related to the use of silica are now frequently excluded (no sand-blasting,

implication on fracking).

b. Pex piping – War story: This was the hot new plumbing product, and included in the client’s design. Upon discovery of the exclusion, client had to decide whether it wanted to go back to market or change the design. It changed the design, but not after speaking with a shocked and understandably irate president from the PEX piping company.

c. EIFS systems – Same concern as PEX piping.

d. Blasting/explosion – Exclusions of blasting or the use of explosives can have implications on excavation work, particularly if unexpected subsurface conditions are encountered.

e. Lead – What if the contractor is building an MRI room?

f. Chinese drywall

4. Subcontractor Insurance Requirements. Many policies will now be endorsed to specify that all or certain identified types of subcontractors maintain insurance with designated limits of coverage. For example, in the NYC market, most insurance companies are requiring high limits from crane operators. This creates several concerns:

a. What is the policyholder’s duty? Some endorsements require that the policyholder merely require that the subcontractor maintain coverage and collect insurance certificates, while other require that the policyholder ensure such coverage is obtained and maintained. The latter is a very high standard and would require substantial effort.

b. What are the potential ramifications? Depending on how the endorsement is written, failure to comply can result in an increased deductible or, far worse, forfeiture of coverage.

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c. There is also a practical risk that subs can’t obtain coverage and may need to be replaced. But what if no viable replacements?

5. Cross-Suit Exclusions. A cross-suit exclusion excludes from coverage certain claims brought by certain insured parties. Cross-suit exclusions can be written in two ways:

a. Named Insured versus Named Insured (i.e., U267-0205): This excludes coverage for

claims by Named Insureds against other Named Insureds. This makes sense, as coverage is intended for third-party claims.

b. Additional Insured versus Named Insured (i.e., XLI-0380): This would exclude coverage for claims brought by an Additional Insured (like the property owner) against a Named Insured (like the contractor). As this would basically defeat the entire purpose of coverage, it should be immediately rejected.

Summary – All of these potential pitfalls are worrisome, but the good news is that with proper insurance specifications and by working with your insurance advisors to vet the project’s insurance.

nydocs1-1007946.1

CONSTRUCTION CLAIMS CHECKLIST

Joshua Gold, Esq., Anderson Kill & Olick, P.C.

1. Give Notice in writing to all potentially applicable insurance policies

− GL

− E&O

− A.I.

− Umbrella

− Excess

− Other Policies (e.g., builder’s risk, OCIP, etc.)

2. Cooperate in defense of underlying claim, but Mind the Privilege

3. If Duty to Reimburse vs. Duty to Defend, Send Invoices Regularly To All

Insurance Companies But Again, Mind the Privilege

4. Settlements Negotiations: Keep Insurance Company in the Loop 5. Settlement Opportunities: See Written Consent from Insurance Company

6. Subrogation: Keep An Eye On The Insurance Companies’ Subrogation Rights And Expressly Address Subrogation In All Settlement Releases Including Those Set Forth In “Global Settlements”

7. Reduce to writing all Material Claim Issues and Developments 8. Enlist the insurance brokers help when dealing with insurance claims

The following bulletin, provided by IACC member Anderson Kill & Olick, P.C., is provided for informational

purposes only. The IACC does not assume responsibility for the information contained in this communication.

Minimize Risk in Renovation Projects By Lawrence Bartelemucci

A renovation project, whether it be a storefront on Madison Avenue or back-office in the suburbs, must be properly planned and coordinated in order to achieve the owner’s goals. An inefficient renovation project risks losses, not just from increased construction costs, but also lost revenue if a store cannot timely open. Likewise, if a business needs to rent alternate space during the renovation, a delayed project will result in increased rental costs. Four basic steps can help minimize the risk that projects will go over budget or beyond the scheduled construction period: give clear design guidance, hire the contractor, plan the work sequence, finish the project.

Step 1: Give Clear Design Guidance A successful renovation project must have a clear scope of work. All other aspects of the project depend on this scope description. If an owner is hiring an architect or engineer to design the project, the engagement agreement must clearly define the design professional’s scope of services. The design professional must not make an early exit – as the owner’s eyes and ears on a project, he must remain involved until the project is completed. The design professional must aid the owner in closing out the project and obtaining any required governmental approvals.

Step 2: Hire the Contractor Once the project’s scope is determined, the owner must next engage the party responsible for developing and executing the project plan – the contractor. When hiring a contractor, it is important that the agreement specifically describe the contractor’s scope of work. The agreement must also, among other things, ensure that (1) the contractor has the proper insurance, (2) risk is properly allocated through indemnification clauses and other contract provisions, and (3) the contract price is structured so that there is enough money left at the end of the project to complete all remaining work. Clearly delineated risk and responsibility allow the renovation work to start off as a team effort, where the parties do not treat each other as adversaries.

Step 3: Plan the Work Sequence

Sequencing renovation work in a manner that minimizes disruption to portions of the building still in use is essential to a successful project. Each of the parties must understand its role in this process and how its work fits within the project plan. Contract documents must clearly set out how the project team foresees the phasing, starts and stops, and other timing considerations arising during renovation. Lack of coordination creates stoppages in the work and increased costs.

Step 4: Finish the Project Closing out a project will require a coordinated effort from all of the parties: the architect for approvals and sign-offs, the contractor to complete or correct remaining work, and the owner to accept the project and complete payment. But the contract must specifically require all characters to remain involved in the process until that time.

The typical form construction contract used for renovation projects is inadequate to address the complex issues involved. Instead, owners should craft their own specific agreements containing the sufficient detail, role definition, and incentives/disincentives that promote timely and coordinated performance.

2

About the Author Lawrence Bartelemucci is a shareholder in the New York office of Anderson Kill & Olick, P.C. Mr. Bartelemucci’s practice concentrates in the area of construction law, where he has drafted and negotiated numerous manuscripts and AIA form owner-builder, construction management, architect, design-build, and development agreements. For more information, please contact Lawrence J. Bartelemucci at (212) 278-1883 or [email protected].

About Anderson Kill & Olick, P.C. Anderson Kill practices law in the areas of Insurance Recovery, Anti-Counterfeiting, Antitrust, Bankruptcy, Commercial Litigation, Corporate & Securities, Employment & Labor Law, Health Reform, Intellectual Property, International Arbitration, Real Estate & Construction, Tax, and Trusts & Estates. Best-known for its work in insurance recovery, the firm represents policyholders only in insurance coverage disputes, with no ties to insurance companies and no conflicts of interest. Clients include Fortune 1000 companies, small and medium-sized businesses, governmental entities, and nonprofits as well as personal estates. Based in New York City, the firm also has offices in Newark, NJ, Philadelphia, PA, Stamford, CT, Ventura, CA and Washington, DC. For companies seeking to do business internationally, Anderson Kill, through its membership in Interleges, a consortium of similar law firms in some 20 countries, assures the same high quality of service throughout the world that it provides itself here in the United States.

The information appearing in this article does not constitute legal advice or opinion. Such advice and opinion are provided by the firm only upon engagement with respect to specific factual situations.

Fine Print Online

As the devastation wrought by Superstorm Sandy brought home, natural disasters can imperil even the most rock-solid businesses and the survival of a business often hinges on how quickly and completely it is able to recover from such a catastrophe. Since no region of the world is immune, assembling a team to implement a disaster recovery plan is invaluable to any business. While generally no single disaster recovery approach will be right for every business, individual or governmental unit, below are some insurance and property consider-ations to help ensure prompt action and increase the likelihood of a quick recovery once disaster occurs.

Insurance ConcernsThe vast majority of businesses purchase commercial property insurance. Depending upon the type of cover-age bought, this insurance can cover storm-related loss or damage to insured property, time element losses, research and development, public relations costs, claim adjustment expenses, loss mitigation efforts and many other items. To both preserve and maximize this cover-age, develop a checklist of certain action items to address with your property insurance companies (including your excess insurance companies) after a loss occurs:

Notice: Provide timely notices of claim to all insur-ance companies.

Proofs of loss: Schedule and meet deadlines to file proofs or statements of loss. If the proof of loss deadline appears unrealistic given the scale of the damage, be pro-active and get extensions (in writing) in advance of the looming deadline. If there is not enough time to do so, file a partial proof of loss reserving the right to amend/supplement the proof.

Sub-limits: Analyze your insurance coverage to deter-mine what coverages are triggered and whether you are subject to any sub-limits (insurance policies are not always clear on the issues of sub-limits, concurrent losses and overlapping coverage).

Suit limitation: If your policy contains a suit limita-tion clause (and almost all do), this date must be con-servatively calendared, no matter how friendly your local underwriter seems to be while handling your claim in the early stages.

Election of valuation method: Check your insurance policy to see if there is any deadline on the date by

which the insurance policy seeks to have you elect the valuation method for the loss claimed.

Time requirements to rebuild or replace: Similar to the point above, see if there is a deadline by which policy seeks to have the rebuilding or replacement of the affected property completed.

Preservation of evidence: Sort out in writing how evi-dence is to be preserved if destructive testing or imme-diate remedial work needs to be undertaken. Note also that many policies provide coverage for debris removal.

Loss mitigation: Address in writing the loss mitigation steps you intend to take. If there is no time to do this in advance, then address it in writing soon thereafter, memorializing the urgent conditions that required you to act immediately.

Demands for partial payments: Some policies have express provisions requiring the insurance company to make partial payments or claim advances. Invoke these clauses so that cash flow issues are ameliorated. Some insurance companies will also provide cash advances if simply requested.

Property ConsiderationsThe plan for getting your loss adjusted and paid should also consider (both before a loss and most certainly after) issues that are specific to your property needs:

Is your space worth rehabilitating? If it is, then your company will need to contract for design and construc-tion services to rehabilitate the current space or rebuild on site. If the space that will be rehabilitated is leased, your company needs to coordinate its efforts with the landlord.

If it is not worth rehabilitating, then your company must consider how it will dispose of the space (for exam-ple, selling the property or cancelling the lease), and how it will acquire new permanent space. In addition, your company will need to contract for design and con-struction services for its new space. This process should involve a zoning analysis to ensure that your company can build what it needs and conduct its operations at the new location.

If you do choose to relocate, FEMA’s Hazard Mitigation Grant Program (HMGP) may prove to be a valuable resource. The HMGP marshals a mix of federal and other funds to buy the damaged property, demolish

by Joshua Gold and Lawrence Bartelemucci

Property Insurance and Disaster Recovery After Sandy

it and return the land to its natural state. The property owner (business or individual) must apply through its municipality, which buys the property and applies for federal funds. To qualify, the property must be located in a flood plain, and the cost to repair or replace must exceed 50% of fair market value.

How will you operate on a current basis? Whether or not your company relocates, it will likely need to lease temporary space to resume current operations. It may also need to rent space to store saved or salvageable equipment and inventory.

Do your telecommunications leasing and services require changes? Both existing and any new contracts should be tailored to your operations and the realities of the space within which you will conduct business. In addition, current agreements should be reviewed for applicable termination or transfer provisions, as well as potential cancellation penalties.

Will the recovery require financing? The recovery may require financing — be it an acquisition loan, line of credit to continue operations, advance of insurance proceeds or construction loan to fund the rehabilitation or new construction. The different means available for acquiring such financing should be considered.

Will you need special consideration from existing credi-tors? If so, it may be vital to reach out proactively, per-haps with the help of a restructuring professional, who can calculate projected revenue and cash flow, map out obligations to creditors, and begin negotiations, tak-ing into account the likely time needed to restore the

business to pre-disaster strength, the sums reasonably expected from insurance recovery and other variables.

What are the tax consequences? Depending upon what a business plans or ends up opting to do after a loss, tax consequences may arise. A tax analysis should factor into the ultimate decisions made about repairing/replacing the damaged property, or even abandoning the property and opting for a new property for conducting business. Attention should be paid to your property insurance as it may specifically address tax treatment and provide certain options and benefits depending upon the circumstances.

While no one can work out every detail of a disas-ter plan before disaster strikes, preparing checklists in advance, and taking steps such as scouting out viable temporary space, can greatly smooth the path to recov-ery and maximization of insurance claims.

Joshua Gold is a shareholder in the New York office of Anderson Kill & Olick, P.C. and regularly represents policyholders in insurance coverage matters and disputes concerning arbitration, time element insurance, electronic data and other property insurance coverage issues.

Lawrence Bartelemucci is a shareholder in the New York office of the law firm of Anderson Kill & Olick, P.C. His practice concentrates in the area of construction law, where he has drafted and negotiated numerous manuscript and AIA form owner-builder, construction management, archi-tect, design-build and development agreements.

Fine Print Online

Reprinted with permission from Risk Management. Copyright 2012 Risk and Insurance Management Society, Inc. All Rights Reserved. www.rmmagazine.com

Fine Print Online

When reading the fine print of almost any insurance policy, one will see a host of often daunting insurance policy conditions. Almost all insurance policies, includ-ing liability, crime, kidnap and ransom, and property insurance policies call for “notice” of claims within a certain period of time.

Additionally, many insurance policies, such as prop-erty or crime policies, call for the filing of a proof of loss within a set amount of time and also may require that any suit against the insurance company for its failure to pay a claim (in part or in full) must begin within a reduced statute of limitations period-sometimes as short as 12 months. Such a provision may even be found in a liability policy, although this is rare.

Policyholders should be careful with these time-sensitive provisions as insurance companies often seek a complete forfeiture of insurance coverage when arguing that the policyholder failed to comply with them--even where no harm to the insurance company has resulted.

Notice ProvisionsFailure of a policyholder to provide timely notice of a claim can result in a protracted legal battle over the consequences of the alleged late notice. While the great majority of states require an insurance company to demonstrate actual prejudice as a result of the late notice before escaping coverage, a small minority of states holds that late notice can result in complete forfeiture of insurance coverage without a demonstration of preju-dice to the insurance company.

Although there are a host of exceptions to finding a forfeiture of coverage, policyholders should still err on the side of caution when faced with notice of claims and should provide notice to all insurance companies as soon as possible. It is also wise for policyholders to obtain preferred language for their notice clauses, which can often be accomplished with the help of a good insur-ance broker.

Some insurance policies also contain clauses that specify when and how a policyholder is to give notice of circumstances that may result in a claim. It is important to check these provisions to see if they are discretionary or mandatory. Even if not mandatory, it is prudent to evaluate whether notice should be provided anyway in conjunction with considerations about disclosure under a renewal insurance application, changing insurance companies or other risk management objectives.

Policyholders should also check notice terms that may be found in umbrella and excess insurance policies to see if they differ from the requirements imposed by the pri-mary insurance policy. Just because an excess insurance policy is called a “follow form” policy does not mean it actually is.

Proof of Loss ProvisionsAlmost every property insurance policy contains a clause calling for the policyholder to submit a proof of loss to the insurance company in connection with a property claim. This is often true of crime policies and fidelity bonds as well. Most, but not all, property insurance policies call for a proof of loss to be filed within a cer-tain period of time, such as 60, 90 or 120 days from the property loss or damage.

Anyone who has ever been involved in quantifying the loss from a serious claim will know the time period afforded by the policy for the proof of loss is often unrealistic. As with “late” notice, failure to abide by the terms of the proof of loss may lead to an insurance company seeking a complete forfeiture of insurance coverage. Many courts have held that an insurance company cannot deny insurance coverage for lack of a proof of loss where the insurance company does not send the policyholder a form of proof of loss for comple-tion. Even so, the better practice is to negotiate a Time extension with the insurance company and preserve that agreement in writing before time expires to file a proof of loss. This proactive method of handling the filing of a proof of loss is far preferable to battling it out in court.

Suit Limitation ProvisionsAdditionally, policyholders must also keep in mind suit limitation provisions, which will be used by some insur-ance companies in an attempt to escape their coverage obligations for even the most clearly covered claim. Under many property insurance policies, the insur-ance company seeks to shorten the applicable statute of limitations by, for example, providing in the policy that “any suit for the recovery of any loss hereunder shall not be brought...after the expiration of 24 months from the discovery of such loss.” These suit limitation provisions can prove to be a snare for the unsuspecting, even where the otherwise applicable statute of limitations would provide a much longer period in which to file suit for certain causes of action, such as breach of contract.

by Joshua Gold

Understanding Time Sensitive Provisions

so as to leave as few technical arguments at the insur-ance company’s disposal when you need your insurance protection the most. n

Joshua Gold is a shareholder in the New York office of Anderson Kill & Olick, P.C. and regularly represents policyholders in insurance coverage matters and disputes concerning regulation, time element insurance, insurance captives, electronic data and other property insurance cover-age issues.

In some states, insurance company efforts to shorten the statute of limitations are strictly prohibited or restricted. Court decisions in other states have found numerous exceptions to applying a suit limitation as a means of avoiding insurance coverage. Nevertheless, the safer practice is to mark the date in which a policyholder should be able to start an insurance coverage action should the insurance company refuse to honor coverage.

While no one enjoys dealing with the fine print of insurance policies, it is worth the effort to be proactive


Risk management for hotels and resorts has never been easy. The perils are abundant; challenges range from protecting against employment related claims to ensuring the general safety of guests to protecting against Caribbean hurricane risk. Hotel operators and owners can do much to mitigate risk by considering factors other than price when purchasing their insurance coverage. Below is a check-list of measures that can give policyholders an advantage when dealing with potentially major loss scenarios.

1. Purchase Tailored Insurance Coverage Policyholders should seek to buy insurance coverage

tailored to protect against risks unique to their business. For example, so-called “all-risk manuscript” property insurance policies that protect against risks to hotels and resorts. Often included within this manuscript coverage is “time element” coverage, which replaces business income when operations are interrupted. Time element coverage can protect against losses stemming from interruptions to operations due to the loss of a liquor license, infectious or contagious disease, food or drink poisoning, vermin or pests. Other provisions may cover lost income due to murder, suicide or rape on premises, or losses occasioned from the evacuation of the casino or hotel after the report or detection of an explosive device. Insurance coverage may also be available to cover costs of relocation of guests during a business interruption.

Some manuscript policies also protect against loss of business income due to damage away from the premises at sites upon which the policyholder is reliant, such as conference centers, sports complexes, convention centers, and amusement parks.

2. Avoid Onerous Insurance Policy Terms While shopping for the provisions outlined above, seek-

out policies containing the fewest escape clauses that might enable the insurance company to avoid coverage for a large claim. What the big print gives, the fi ne print can undermine. For example,

policyholders should insist upon policies that do not tie the calculation of time element coverage to the performance of other properties owned by the policyholder. Some insurance companies insert language that they argue entitles them to offset losses at one location with profi ts earned at another.

Policyholders should also insist upon policies that do not “require” a complete cessation of business to trigger time element coverage. Some insurance companies have argued that there is no time element coverage unless the policyholder’s business has completely ceased. This can be a devastating position when a policyholder operates numerous business activities at a location and an insured peril only affects some of them. Even a partial interruption of activities can have dire consequences for the hotel’s profi tability. Avoiding such policy traps is worth both time and money; policyholders are wise to shop for the most favorable terms available. Shopping by price alone is usually a mistake.

3. Avoid Incongruities In your Insurance ProgramMany hotel and resort operators have to fi ll out large

insurance programs with scores of different insurance companies because of the numerous and sometimes signifi cant location-specifi c risks posed by some of their properties (Caribbean, California, cities at high risk for terrorism, etc.). While it can be painstaking, policyholders should take care to ensure that their excess policies track the language of their primary policies to avoid gaps in coverage and other potentially unpleasant surprises. Just because an excess insurance policy is described in the insurance binder or declarations page as “follow form” does not mean that it really is.

ConclusionPolicyholders need to be smart shoppers, using their brokers

and underwriting meetings not only to fi nd the best premium quotes, but also to fi nd the best terms of coverage.

Joshua Gold is a partner in the New York offi ce of Anderson Kill & Olick, P.C. Mr. Gold represents and counsels a number of gaming and hospitality clients with regard to insurance coverage matters, risk management issues, disputes, lawsuits, captive insurance companies and international arbitrations.

The Special Perils of Insurance CoverageBy: Joshua Gold

Industry News

Joshua Gold

Fine Print Online

Over the last several years, excess level insurance com-panies have increasingly disputed and denied insurance coverage to their policyholders when the policyholder settles for less than full policy limits with one of its underlying insurance companies, including the primary level insurance company. While this tactic often fails to work a forfeiture of excess insurance coverage, it does present yet another insurance coverage headache that risk managers must confront.

What had been a settled legal point for many decades and a consistent way of doing insurance business (i.e., that insurance claim settlements were desirable and would not lead to a forfeiture of excess coverage) has been turned on its head in recent years. A potent reminder of this came several weeks ago when a federal appeals court held that a bank could not access some of its excess level insurance coverage after it settled with two underlying layers of insurance coverage for less than the full policy limits.

As such, before agreeing to accept less than full policy limits from an underlying insurance company in order to settle a claim, the policyholder must consider what the language of the excess policy (or policies) says about exhaustion and trigger, as well as the law governing the construction of the insurance policies. Keep in mind that this will not always be clear to policyholders given the convoluted language in some excess insurance policies and uncertainty over what law will apply.

The Typical ScenarioThe usual scenario in which the exhaustion challenge by the excess insurance company arises is where the poli-cyholder settles an insurance claim with an underlying insurance company (often the primary layer of insurance coverage) for less than 100 cents on the dollar. The policyholder then bridges the gap between the amount recovered from the underlying insurance company and the attachment point of the next level insurance com-pany and seeks its excess coverage. The excess insurance company in turn denies insurance coverage by arguing that since the underlying insurance company did not pay the full policy limits, excess coverage is forever forfeited for the claim. This argument is made even

where the policyholder “eats” the difference between the unpaid portion of the underlying insurance and the next excess policy attachment point. Thus, the denial comes even when the excess insurance company is not being asked to drop down or incur a financial obligation that it never bargained for.

The Legal EnvironmentAlmost a century ago, a federal appeals court decided in Zeig v. Massachusetts Bonding and Insurance Co. that an excess insurance policy was triggered because a settlement with an underlying insurance company for less than full policy limits effectively exhausted that policy. According to the rule of Zeig, the “payment” of underlying policy limits could be satisfied through a settlement. The court also noted the very strong public policy favoring settlements. As a result, courts across the country followed the rule of Zeig for decades.

Over the past decade, however, several excess insurance companies appear to have drafted their excess policies to circumvent the Zeig holding. Based upon some of the new language found in excess polices, the trigger of excess coverage is tied to a cash payment of policy limits by the underly-ing insurance company. Some recent cases in 2007, 2008 and now 2011, however, have refused to apply the rationale of Zeig and have held that the policyholder’s receipt of less than full underlying insurance policy limits forever impairs the ability to obtain excess insurance coverage-even where the policyholder absorbs the difference between the amount received and the excess insurance attach-ment point.

Do Not Leave Anything to ChanceWhile there are many courts that will still follow the rule and rationale of Zeig, policyholders are better off not leaving anything to chance. There are excess insurance policy forms that are not drafted in a manner to circum-vent the Zeig holding. Excess policy forms that seek to prejudice policyholders for entering into compromise settlements with their underlying insurance companies should be avoided.

Also, even those excess insurance companies that employ language designed to avoid coverage when the

by Joshua Gold

Accessing Your Excess Insurance

age that the policyholder purchases. Despite the use of “follow form” titles to describe excess insurance cover-age, excess policies routinely possess unique terms and conditions. Regrettably, some of these terms are traps. Therefore, with each new policy year, insurance policies must be reviewed to make sure coverage is not compro-mised when needed most.n

Joshua Gold is a shareholder in the New York office of the law firm of Anderson Kill & Olick, P.C. He regularly represents policyholders, including gaming and hospitality businesses, software companies and retailers in insurance cov-erage matters and disputes concerning liability, arbitration, time element insurance, electronic data and other property/casualty insurance coverage issues.

policyholder receives less than full policy limits will often agree to endorse their policies to add favorable terms that provide coverage (even for those instances where the policyholder settles with an underlying insurance company for less than full policy limits or where one of the underlying insurance companies cannot pay in whole or in part due to insolvency).

Review the TermsMany insurance brokers are now aware of this issue and will be able to guide policyholders toward more favorable terms to avoid any “exhaustion” disputes from excess level insurance companies. It is well worth the effort to be vigilant with excess insurance policy language up and down all the lines of insurance cover-

Fine Print Online


Faculty Biographies

Lawrence J. Bartelemucci

[email protected]

New York T. 212-278-1883F. 212-278-1733

Practice Areas

Real Estate and ConstructionCorporate and Commercial LitigationInsurance Recovery

Mr. Bartelemucci is the chair of the Real Estate and Construction Practice Group. He practices in the area of construction law, where he has drafted and negotiated numerous manuscript and AIA form owner-builder, construction management, architect, design-build, and development agreements. He has worked on several major development projects involving the leasing of air rights for construction, and has extensive experience representing hospitals and other institutional clients with their own construction needs. Mr. Bartelemucci is also a member of Anderson Kill's Financial Services Industry Group and its Hospitality Industry Practice Group.

Mr. Bartelemucci's transactional construction experience also enables him to provide informed and practical counsel when handling construction-related disputes. He has represented clients in both arbitration and litigation forums on a variety of construction-related disputes, including those involving building collapse, fire loss, construction encroaching on adjacent properties, defective construction, non-payment, change order disputes and mechanic's liens. Mr. Bartelemucci has substantial experience prosecuting owner's claims under payment and performance surety bonds, including the defense of subrogation claims made by such sureties.

Mr. Bartelemucci also has extensive experience drafting and negotiating site-licensingagreements between real estate owners and telecommunications companies. He also has substantial experience in telecommunications disputes and has represented an institutional client in an action related to overbilling for telecommunications services. Mr. Bartelemucci's real estate experience includes both transactional and litigation projects. He has represented both property owners and third parties in disputes over interests in real property, and has participated in real property sales, as well as a significant "lollipop" condominium conversion.

Lawrence J. Bartelemucci joined Anderson Kill's New York office in January 2002. Prior to joining Anderson Kill, Mr. Bartelemucci was an associate with the law firm of DeForest & Duer. While attending St. John's University School of Law, he was a member of the American Bankruptcy Institute Law Review, where he served as the Executive Articles Editor.

Publications

"Property Insurance and Disaster Recovery After Sandy," Risk Management magazine(December 2012) (with Joshua Gold)

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"Property Insurance and Disaster Recovery," Risk Management magazine (March 2012) (with Joshua Gold)

"You've Decided to Build Green. Now What?," Focus (Industry News), published by the New York State Hospitality & Tourism Association (Summer 2011)

"Telecommunication Upgrades: Beware of the Potential Pitfalls," Focus (Industry News),published by the New York State Hospitality & Tourism Association (January 2011)

"Minimize Risk in Renovation Projects," Italy-America Chamber of Commerce, Inc. (July 2010)

"Upgrading Telecommunications Services: Think space, flexibility and service," Focus (Industry News), published by the New York State Hospitality & Tourism Association (January/February 2009)

"Do Not Leave the Meter Running During Renovation Projects; Finishing Specific Projects Will Save Properties Both Time and Money," Focus (Industry News), published by the New York State Hospitality & Tourism Association (May 2008)

"AIA Form Agreements: Are They Fair to Owners?," AKO Real Estate & Construction Advisor(Spring 2006)

"Leveraging Air Rights to Finance Construction," Real Estate Finance (February 2005) (with James P. Cullen) and AKO Real Estate & Construction Advisor (Autumn 2004) (with James P. Cullen)

"A Smart Approach to Developing 'Smart Buildings,'" AKO Real Estate & Construction Advisor(Spring 2003)

Speaking Engagements

“Crisis Management in the Midst of an Environmental Disaster,” Pace University School of Law, Center for Continuing Legal Education Roundtable, White Plains, NY (February 22, 2013)

"The Development Process: Feasibility, Contracting, Funding, the Construction Process, Including Insurance," 11th Annual 2013 Hospitality Law Conference, Houston, TX (February 11, 2013)

"Environmental Issues in Real Estate Development and Leasing," Anderson Kill & Olick Seminar, New York, NY (January 24, 2013) (with Robert S. Cook, Jr., Thomas A. Neufeld and Thomas R. Petty)

"How is the Surety Market Responding to Unique Risks of P3 Projects?," Business Insurance Webinar (November 1, 2012)

"Real Estate & Construction,” Industry Breakout Sessions: Important Issues Affecting Key Industries, 16th Annual Policyholder Advisor Conference, New York, NY (October 25, 2012) (with David E. Wood)

"Hydraulic Fracturing for Oil Extraction: Things Property Owners Should Consider Before Leasing," RIMS Great Lakes Regional Conference, Cleveland, OH (September 12-13, 2012) (with John G. Nevius)

"Construction Audit: Adding Value," New York and New Jersey Chapter of the National Association of Construction Auditors' Open House, New York, NY (August 22, 2012) (with Finley T. Harckham)

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"Risks & Rewards in Real Estate," Seminar Series with Marcum LLP, New York, NY (March 3, 2011) (with Kevin J. Connolly and Finley T. Harckham)

Press

Mr. Bartelemucci is quoted or cited in the press. The following is a representative sampling:

"Panelists ID development checklist," HotelNewsNow.com (February 26, 2013)

"New York City sues Verizon for too-big building," New York Daily News (January 7, 2010)

Bar Admissions

New York and the United States District Court for the Southern, Eastern, Western and Northern Districts of New York.

Professional Memberships

New York City Bar Association, Committee on Construction Law; New York County Lawyer's Association; and New York State Bar Association

Association Memberships

New York State Hospitality & Tourism Association (NYSHTA); Catholics in Construction

EducationSt. John's University School of Law, J.D.Manhattan College, magna cum laude, B.A.

Copyright ©1996-2013 Anderson Kill & Olick, P.C. | Attorney Advertising | Client's Rights | Legal DisclaimerPrior results do not guarantee a similar outcome.

Page 3 of 3

Joe Charczenko, Partner [email protected] (o) 646.625.7101 (c) 917.880.1061

Joe joined Construction Risk Partners in May of 2010 as a Partner and is responsible for managing the company’s New York office. In Joe’s tenure at CRP, he has been focused on leading the company’s formal expansion into New York, quickly building an office, developing a strong team of surety and risk management professionals, and cultivating a strong stable of clients and strategic partners to expand Construction Risk Partners’ influence in the New York construction market. Joe continues to use his experience in understanding construction risk, strategic networking and developing teams to position Construction Risk Partners as a market leader serving the construction community.

Prior to joining Construction Risk Partners, Joe was an Assistant Vice President and Northeast Regional Construction Manager for Zurich. He was responsible for overseeing the region's $350M+ construction book of business. In this role, Joe helped design some of the most creative and complex insurance solutions for his clients, including wrap ups, captive programs, Subguard®, collateral and other unique programs. His responsibilities included the management of customer and broker relationships, new business growth, underwriting quality, operational improvement, and talent development.

Joe joined Zurich in 2001 as a Construction Risk Engineer. After three years working with clients and brokers to improve and manage risk in loss control, Joe joined the Construction underwriting operation in a variety of roles including Customer Service Director and Casualty Underwriting Manager.

Prior to joining Zurich, Joe worked for Peter Kiewit Construction Company on the Boston Central Artery Project ("Big Dig") as an Estimator, Project Engineer and Superintendent. The experience gained working with a large contractor on large projects has been invaluable to Joe as his career has evolved.

Joe received his Bachelor of Science Degree in Civil Engineering (Structural Design and Construction Project Management) from Worcester Polytechnic Institute in Worcester, MA.

mailto:[email protected]

http://constructionriskpartners.com/subguard-insurance.php

Joshua Gold

Shareholder

[email protected]

New York

T. 212-278-1886

F. 212-278-1733

Practice Areas

Insurance Recovery

International Business Department

Corporate Litigation

Captive Insurance

Joshua Gold is a shareholder in Anderson Kill's New York office. He has represented numerous corporate and non-profit policyholders in various industries, with recoveries for his clients well in excess of $1 billion. Mr. Gold is co-chair of Anderson Kill's Financial Services Industry Group and a member of the firm's Hospitality Industry Group.

Mr. Gold's practice involves matters ranging from international arbitration, data security, directors' and officers' insurance, business income/property insurance, commercial crime insurance, and insurance captives. He has been lead trial counsel in multi-party bench and jury trials, and has negotiated and crafted scores of settlement agreements including coverage-in-place agreements.

Mr. Gold won a $7 million recovery in a landmark U.S. Court of Appeals, Sixth Circuit decision, on behalf of a retailer that suffered a data breach as a result of a computer hacking scheme. In finding coverage for the retailer's losses stemming from the breach, the Sixth Circuit rejected the insurance company's "direct loss" defense, instead applying a proximate cause standard. Because the "direct loss" defense is commonly cited in such cases, the decision is of particular importance to businesses purchasing fidelity, crime and financial institution bond coverage.

Mr. Gold has a regular column in Risk Management Magazine and has been published in numerous business and legal periodicals, covering a variety of insurance, commercial and consumer issues. He has been quoted on insurance coverage issues in Forbes magazine, CFO magazine, Business Insurance, National Underwriter, Computerworld, Best’s Insurance News and various other trade and business periodicals catering to the risk management, computer, medical and technology professions.

Additionally, Mr. Gold is a frequent lecturer on insurance coverage issues, speaking at conferences nationwide and internationally, including conferences convened by the Risk and Insurance Management Society (RIMS), the Practicing Law Institute (PLI), the Chartered Property Casualty Underwriters Society (CPCU) and the College of Insurance, New York City.

Mr. Gold is a regular contributor to Anderson Kill's Financial Insurance Law blog.

Page 1 of 8

Publications

"How to Protect Data in the Cloud," Risk Management magazine (March 2013)

"Property Insurance and Disaster Recovery After Sandy," Risk Management magazine (December 2012) (with Lawrence J. Bartelemucci)

"Property Insurance and Disaster Recovery," Risk Management magazine (March 2012) (with Lawrence J. Bartelemucci)

"Finding Insurance Coverage for Data Breaches and Other Cyber Crimes," Risk Management

magazine (October 2012)

"What Does the NRRA Mean for Captives?," Risk Management magazine (August 1, 2012) (with

Marshall Gilinsky)

"Protection in the Cloud: Risk Management and Insurance for Cloud Computing," Journal of Internet

Law, Volume 15, Number 12 (June 2012)

"Insurance Coverage in the Absence of Property Damage," Advisen (August 9, 2012) and Risk

Management Magazine (May 2012) (with Marshall Gilinsky)

"Property Insurance and Disaster Recovery," Risk Management magazine (March 2012) (with

Lawrence Bartelemucci)

"Cloud-Computing Risks: Due Diligence And Insurance," Advisen (March 2012), Executive Brief

(March 2012) and The Metropolitan Corporate Counsel (February 20, 2012)

"Risk Management Steps for Preserving Data Security," HospitalityLawyer.com (April 2012)

and Focus (Industry News), published by the New York State Hospitality & Tourism Association

(Winter 2012)

"Three Ways to Stay Ahead of the SEC Cyberthreat Disclosure Mandate," Risk Management

Magazine (December 2011) and The National Law Review (December 20, 2011)

“Act Now to Muffle the Supposed And Extreme Exhaustion Defense In Your Excess D&O Policies:

The Exhaustion Hoodwinking – A Tragedy in Two Acts,” Corporate Counsel Magazine (December

2011) and AKO Policyholder Advisor (September 21, 2011) (with William G. Passannante)

“Commercial Coverage Conundrums – Property Appraisals and Theft Coverage Problems,” CPCU

Society Risk Management Interest Group Newsletter (November 2011) (with Peter A. Halprin)

“Data Security Insurance for Cyber-Related Losses," CPCU Society Risk Management Interest

Group Newsletter (November 2011), HL: Loss Prevention & Risk Management newsletter (August

2011), Advisen (August 10, 2011), Corporate Counsel (August 2011) and AKO Policyholder Advisor

(May/June 2011)

“Accessing Your Excess Insurance,” Risk Management Magazine (October 2011)

"Data Breaches and Computer Hacking: Liability & Insurance Issues,” ABA/TIPS Government Law

Committee Fall 2011 Newsletter (Fall 2011)

"Cloud Perils: Risks, Security & Insurance," Advisen (July 31, 2011) and Hospitality Upgrade

magazine (Summer 2011)

"Insurance Coverage vs. Indemnification Obligations," Risk Management magazine (July/August

2011)

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"Understanding Time Sensitive Provisions," Risk Management magazine (May 2011) and National

Law Review (May 9, 2011)

"Data Privacy in an Online World," Risk Management magazine (September 2010) and National Law

Review (September 2010)

"Coverage for Theft of Third Party Property and Data," Risk Management magazine (August 2010)

and National Law Review (August 2010)

"Gulf Oil Spill Insurance Coverage Issues For the Hotel and Gaming Industries" (June 2010) (with

Marshall Gilinsky)

"The Special Perils of Insurance Coverage," HL: Loss Prevention & Risk Management newsletter

(June 2010) and Focus (Industry News), published by the New York State Hospitality & Tourism

Association (September/October 2009)

"Whither the FDIC: It Might Become the 800-Pound Gorilla of Corporate Insurance Recovery,"

Enforce: The Insurance Policy Enforcement Journal, Volume 8, Issue 1 (April 2010) (with David E.

Wood)

"D&O Coverage for Investigations," Risk Management Magazine (April 2010)

"Data Security: Insurance and Risk Management Issues," HL: Loss Prevention & Risk Management

newsletter (April 2010) and Focus (Industry News), published by the New York State Hospitality &

Tourism Association (February 2010)

"Insurance Coverage for Product Recalls, Property Damage and Injuries," Risk Management

Magazine (January/February 2010)

"Protecting the House," Global Gaming Business Magazine, Volume 8, No. 12 (December 2009)

"The Coverage Tower - Anderson Kill examines the thornier issues around captive ownership,"

Captive Review (November 2009)

"'Death of Company': Insurance Coverage in Bankruptcy", The John Liner Review, Vol. 23, No. 3 (Fall

2009)

"The Trouble with Securing Collateral," Risk Management Magazine (November 2009)

"Environmental Risk Trends," Risk Management Magazine (September 2009) (with John G. Nevius)

"Competing Insurance Interests in Bankruptcy," AKO Policyholder Advisor, Vol. 18, No. 3 (May/June

2009) and CPCU Society Newsletter, Vol. 26, No. 2 (August 2009)

"The Near Impossibility of Kidnap/Ransom Insurance," Forbes.com (June 2009) (with Brian Giehl)

"Avoiding M&A Insurance Problems," Risk Management Magazine (June 2009)

"Competing Interests in D&O," Risk Management Magazine (April 2009)

"Check and Double-Check," Risk Management Magazine (January/February 2009)

"Insuring and Securing Your Data," Risk Management Magazine (November 2008)

"The Hidden World of Policy Arbitration," Risk Management Magazine (September 2008)

Page 3 of 8

"Fidelity Bond and Commercial Crime Coverage For Computer Fraud Claims," Corporate Counsel

(July 2008)

"Cyber Insurance in Disarray," Risk Management Magazine (July 2008)

"Insurance Policy Arbitration Clauses: Perils and Considerations for Policyholders," Corporate

Counsel (December 2007)

“Insurance Coverage For Regulatory and Internal Investigations,” NACD – Directors Monthly

(December 20, 2007) (with Toby Freund)

“Income Loss Insurance Coverage for Businesses in the Frozen Zone,” AKO Policyholder Alert (July

24, 2007) and riskVue (October 2007) (with Finley T. Harckham)

“Beware! D&O Insurance Companies May Improperly Attempt To Recoup Defense Costs Paid To

Policyholders,” Corporate Counsel (February 2007)

"Hurricane Katrina's One Year Anniversary: Make Sure Time Is On Your Side," AKO Policyholder

Alert (August 2006) (with John N. Ellison and Finley T. Harckham)

"Don't Let the One Year Anniversary of Hurricane Katrina Blow Away Your Insurance Coverage,"

riskVue (August 2006)

"Don't Let The One-Year Anniversary of Hurricane Katrina Blow Away Your Insurance Coverage," AKO

Policyholder Alert (May 2006)

“Taking It Personally,” Public Risk (January 2006) (with William G. Passannante and Diana Shafter

Gliedman)

"Insurance Company Insolvencies: A Primer for Corporate Policyholders," The Insurance Coverage

Law Bulletin (June 2003) (with John N. Ellison)

"Defense Cost Insurance Coverage is Broad in Scope: ‘Domain Name’ Claims — A Case in Point,"

riskVue (April 2003)

"'Uh-Oh'; D&O Insurance In Bankruptcy," Corporate Counsel (August 2002)

"Product Recall: Coverage, Pitfalls, and Pressure Points," The John Liner Review, Vol. 15 No. 2

(Summer 2001)

"Director’s and Officers’ and Fiduciary Liability Insurance Claims: Now Entering a Danger Zone,"

Banking Law Journal (October 1996)

“D&O Insurers: Fair-Weather Friends?,” The Corporate Board (May/June 1996) (with Eugene R.

Anderson and Laura V. Jones)

“Malpractice Insurance: Careful Choice Can Prevent Later Problems,” Medical Malpractice (May

1996) (with Eugene R. Anderson)

“Multiple Policies Are False Security,” The National Law Journal (April 15, 1996) (with Eugene R.

Anderson)

“Health Insurance Companies’ Math: Arithmetic Gone Haywire,” White-Collar Crime Reporter (March

1996) (with Eugene R. Anderson)

“Medical Malpractice Insurance Coverage Issues,” New York Negligence Reporter (January 1996)

Page 4 of 8

(with Eugene R. Anderson)

“Medical Malpractice Insurance: Are You Covered?,” Advanced Practice Nurse Sourcebook 1996

(1996) (with Eugene R. Anderson)

“Are You Covered?,” American Medical News (December 11, 1995) (with Eugene R. Anderson)

“When Your Malpractice Insurance Is Not What the Doctor Ordered,” BPI – Medical Liability Advisory

Service (November 1995) (with Eugene R. Anderson)

“Safety Net May Not Hold,” The National Law Journal (October 9, 1995) (with Eugene R. Anderson

and Randy Paar)

Selected Speaking Engagements

"Increased Regulatory Risks for Directors & Officers: Strategies for Minimizing Risk," Anderson Kill &

Olick, P.C. 10th Annual D&O Conference, New York, NY (March 21, 2013) (with William G.

Passannante and Raymond A. Mascia, Jr.)

"The cyber liability exposures of casualty insurers," Advisen Casualty Insights Conference, New York,

NY (March 19, 2013)

"Mastering Data Breach, ID Theft & Privacy Laws," New Jersey State Bar Association CLE Seminar,

New Brunswick, NJ (March 7, 2013) (with Robert D. Chesler)

“Property and Business Interruption Losses: Superstorm Sandy,” Anderson Kill & Olick, P.C. Second

Annual Policyholder Conference, New York, NY (February 12, 2013) (with Finley Harckham,

Rhonda D. Orin, Marshall Gilinsky, Dennis J. Artese and Ronald J. Papa)

“Anticipating and Resolving Privacy and Security Problems with Third Parties and Vendors Through

Effective Due Diligence and Contract Negotiation,” ACI’s 13th Annual Legal and Compliance Forum

on Privacy & Security of Consumer and Employee Information, Washington, D.C. (February 5-6,

2013)

"No Boundaries: Employment Related Claims in Times of Economic Stress and a Borderless

Workplace," RIMS Broward County Chapter, Fort Lauderdale, FL (January 16, 2013) (with Darin J.

McMullen)

"Business interruption and other legal coverage issues post Hurricane Sandy: The More You Know!,"

Macquarie Education Edge, Macquarie (USA), New York, NY (December 19, 2012)

"Hey Hacker, Get Off My Cloud," 16th Annual Policyholder Advisor Conference, New York, NY

(October 25, 2012)

"No Boundaries: Employment Related Claims in Times of Economic Stress and a Borderless

Workplace," RIMS Greater Miami Chapter, Miami, FL (August 2, 2012) (with Darin J. McMullen)

"Cloud Computing: Evaluating the Threat, Mitigating the Risk, and Incorporating the Latest Security

Controls and Protocols," ACI's 12th Annual Legal and Compliance Forum on Privacy and Security of

Consumer and Employee Information, San Francisco, CA (July 30-31, 2012)

"Understanding Insurance Coverage and Risk Management," Choice Hotels 58th Annual

Convention, Las Vegas, NV (May 16, 2012)

"Commercial Coverage Conundrums - Liability Claims," University of Connecticut Seminar,

Stamford, CT (May 9, 2012)

Page 5 of 8

"Hey Hacker, Get Off of My Cloud," RIMS National 2012 Conference, Philadelphia, PA (April 18, 2012)

"D&O Workshop - Tools and Strategies," RIMS Spring Conference, Waltham, MA (March 15, 2012)

"Cloud Computing: Evaluating the Threat, Mitigating the Risk, and Incorporating the Latest Security

Controls and Protocols," ACI's 11th Annual Legal and Compliance Forum on Privacy and Security of

Consumer and Employee Information Conference, Washington, DC (February 1, 2012)

"Contractual Risk Transfer," RIMS Maritime Chapter Workshop, Lower Sackville, Nova Scotia

(November 14-15, 2011) (with Darin J. McMullen)

"Changes in the Wake of Health Care Reform," Palm Beach County RIMS PERK Chapter, Palm

Beach, FL (November 10, 2011)

"Commercial Coverage Conundrums - Liability," CPCU Society's Annual Meeting, Las Vegas, NV

(October 24, 2011)

"Financial Services - Cyber Crisis Scenario: Corporate Account Hijacking," Industry Breakout

Sessions: Important Issues Affecting Key Industries, 15th Annual Policyholder Advisor Conference,

New York, NY (October 13, 2011) (with William G. Passannante)

"Whistleblowers, Shareholders and Feds, Oh My! D&O Insurance for Emerging Liability Risks," 15th

Annual Policyholder Advisor Conference, New York, NY (October 13, 2011) (with William G.

Passannante)

"Time Sensitive Provisions For Time Element Coverage," AKO's First Annual Business Interruption

Conference, Miami, FL (September 15, 2011)

"Contractual Risk Transfer," RIMS San Diego Workshop, San Diego, CA (June 15-16, 2011) (with

Pamela D. Hans)

"Now What? Evolving Regulations Drive a Compliance Challenge Understanding and Overcoming

Compliance Challenges Driven by Evolving Regulations," RIMS National Conference, Vancouver,

Canada (May 2, 2011)

"It Ain't Over Till It's D&Over: D&O Insurance as the Nation Digs Out from Recession," Eighth Annual

D&O Conference, New York, NY (March 10, 2011) (with William G. Passannante)

"Commercial Coverage Conundrums - An Interactive Case Study Approach," CPCU Society 2010

Annual Meeting & Seminars, Orlando, FL (September 28, 2010)

"Contractual Risk Transfer," (with Pamela D. Hans), Risk and Insurance Management Society

Educational Workshop, San Francisco, CA (July 8-9, 2010)

"After the (Litigation) Flood: D&O Insurance Flashpoints in 2010 and Beyond," Anderson Kill & Olick,

P.C. and the Greater NY ACC Chapter's Seventh Annual D&O Conference, New York, NY (March 25,

2010) (with William G. Passannante)

"Contractual Risk Transfer," (with Pamela D. Hans), Risk and Insurance Management Society

Educational Workshop, Winnipeg, Canada (December 3-4, 2009)

"Ethics - Conflicts Counsel," (with Diana Shafter Gliedman), 12th Annual Policyholder Advisor

Conference, New York, NY (September 17, 2009)

”What’s Hot – What’s Not in D&O/E&O Insurance,” (with William G. Passannante), 11th Annual

Policyholder Advisor Conference, New York, NY (September 18, 2008)

Page 6 of 8

"Ultrafine Print: How to Read an Insurance Policy," Southwest Florida RIMS Chapter, Naples, FL

(July 17, 2009)

"Ten Tips for a Corporate Law or Risk Management Department," North Florida RIMS Chapter,

Jacksonville, FL (June 10, 2008)

"How to Evaluate and Settle an Insurance Claim," Southwest Florida RIMS Chapter, Fort Meyers, FL

(May 16, 2008)

"Understanding Key E&O, D&O and Fiduciary Liability Insurance Issues," Alberta RIMS Chapter,

Calgary, Canada (May 8, 2008)

“Building a Better Property Insurance Program,” Risk and Insurance Management Society, San

Diego, CA (April 29, 2008)

“Strategies and Tactics to Avoid Liability and Maximize Coverage,” Fifth Annual D&O Seminar, New

York, NY (March 5, 2008)

“Ten Tips for a Corporate Law or Risk Management Department,” Hawaii RIMS Chapter, Honolulu,

HI (February 21, 2008)

“Key Issues Affecting D&O/E&O Insurance,” 10th Annual Policyholder Advisor Conference, New York, NY (September 18, 2007)

“Legal Risk of E-Commerce; What Your Current Insurance Does Not Cover: Strategies for Limiting

Exposure, Minimizing Risk and Avoiding Liability,” Strafford Publication’s Legal Risk of E-Commerce

Teleconference, New York, NY (February 15, 2007)

“Insurance Update: Protecting Your Institution from Foreseeable and Hidden Liabilities,” A.S. Pratt &

Son’s Audio Conference, New York, New York (January 17, 2007)

"The Forgotten Promise—Strategies and Tactics to Maximize the Value of D&O Insurance," 4th Annual D&O Conference, Harvard Club, New York, NY (June 22, 2006)

Press

Mr. Gold is often quoted or cited in the press. The following is a representative sampling:

"Attorneys: Commercial Insureds Should Prepare for Delays, Denials on Sandy Claims," Property

Casualty 360 (February 19, 2013)

"Insurance Group Of The Year: Anderson Kill," Law360 (January 24, 2013)

"Insurer Ordered to Pay for Hacking Losses," Risk & Insurance Magazine (December 17, 2012)

"Insurers Grow Tentative About Coverage For Cloud Users," Law360 (November 13, 2012)

"How They Won It: Anderson Kill Gets Coverage In Hacking," Law360 (October 24, 2012)

"NFL: Make Insurers Defend Concussion - Related Lawsuits," National Underwriter (August 16,

2012)

"Fidelity Policies Appear Flexible In 6th Circ. Theft Ruling," Law360 (August 6, 2012)

“Bar groups try to keep up with the cloud,” Thomson Reuters (May 18, 2012)

Page 7 of 8

“Impaired RRG Dealt Legal Blow in Suspect Reinsurance Transaction Claim,” BestWire (April 6,

2011)

“Claim disputes often caused by oversights - Complex coverage creates friction in D&O claims,”

Business Insurance (March 20, 2011)

“Vicious attacks: how does insurance help victims and families impacted by brutal animal attacks?,”

Best’s Review, Volume 111, Issue 4 (August 1, 2010)

“Hard-to-find punitive damage coverage is tricky business,” Business Insurance (February 14, 2010)

“Fraud case shows need for D&O priority clause,” Business Insurance (October 4, 2009)

“NY Trade Center Ruling Exposes Equitas,” National Underwriter (April 30, 2008)

“Got a Bermuda Policy? Check the Fine Print,” Business Insurance (June 4, 2007)“

“Avoid Surprises by Understanding Coverage,” Business Insurance (June 4, 2007)

“Tracing Origins of a Unique Policy Provision,” Business Insurance (June 4, 2007)

“Attorneys Warn Buyers to Document Cover,” Business Insurance (April 3, 2006)

Bar Admissions

New York

Pro Hac Vice Admissions in Alabama, California, Colorado, Connecticut, Florida, Illinois, Louisiana,

Minnesota, Mississippi, New Mexico, Ohio, Texas.

Professional Memberships

American Bar Association Section of Litigation, Computer & Technology Subcommittee, Co-Chair,

Insurance Coverage Litigation Committee

Association Memberships

The National Association of Corporation Directors (NACD)

EducationBenjamin N. Cardozo School of Law, Yeshiva University, J.D.

University of Massachusetts, at Amherst, B.A.

Copyright ©1996-2013 Anderson Kill & Olick, P.C. | Attorney Advertising | Client's Rights | Legal Disclaimer

Prior results do not guarantee a similar outcome.

Page 8 of 8

standardsHIGHER

IN CONSTRUCTION

INTRODUCTIONAs General Counsel for Pavarini McGovern, Mr.Sciascia advises the CEO, Chairman and VicePresidents on various matters, which include newbusiness opportunities, deal structuring andcontractual risks, as well as working with ProjectExecutives and Project Managers to resolve tradecontractor negotiations and disputes. Mr. Sciasciareviews, negotiates and drafts constructionmanagement agreements with owners andsubcontract agreements with trade contractors.

Additionally, Mr. Sciascia is an adjunct professor atPolytechnic Institute of New York University, where heteaches graduate coursework in Construction Law andContracts & Specifications.

Mr. Sciascia is also the current Chair of the constructioncommittee of the New York County LawyersAssociation. He frequently lectures and moderatespanel discussions on topical issues effecting theconstruction industry.

EDUCATION• JD/Law/Fordham Law School• BS/Architecture/Arizona State University• MS/Construction - RE Development

Core/Arizona State University

BAR ASSOCIATIONS• New York State Bar/April 1998• US Supreme Court Bar/May 2005• NY County Lawyers Association/

Construction Law Committee - Chair

AWARDS• The Archibald R. Murray Public Service Award• Student Leadership Award - Habitat for

Humanity/Fordham University School of Law

MEMBERSHIPS• Board/Greater NY Construction User Council• Board/Arizona State University Alumni

Association/Greater New York Chapter• Member/Association of Corporate Counsel

DEVELOPMENT EXPERIENCESavoy Senior Housing Corporation, New York, NY General Counsel & VP of Real Estate DevelopmentDeveloped proforma models to analyze various realestate transactions including development budgets,construction costs, operational income and expenses,investor IRR, lease-up, draws, and refinancing.Designed, coordinated and carried out due diligencework plans to ascertain physical, legal and marketrisks. Responsible for preparing business plans andmarket analysis for presentation to equity and debtcapital sources. Acted as owner's representative andmanaged architects, engineers, and subcontractors ona variety of old and new projects.

Took over $15 million in construction to completeconstruction of two assisted living facilities (150,000-SF) after construction manager failed to timelycomplete and was terminated. Terminated deficienttrades. Bid and negotiated completion contracts.Directed all work including Owner's separate trades.Coordinated as-built drawings, expeditors and Dept.

J o e l M . S c i a s c i a , E s q . I G e n e ra l C o u n s e l

NEW YORK LAW SCHOOL FLAGSHIP BUILDING

standardsHIGHER

IN CONSTRUCTION

of Building inspections. Obtained Certificates of Occupancy. Worked witharchitects and engineers to design and specify a ground up 70,000-SF assistedliving facility, then worked with architects and engineers to redesign the siteas an apartment building. Oversaw outside counsel on over $17 million incivil litigation. Handled various legal matters, drafted and negotiated leases,obtained Dept. of Health licenses, as well as assisted in all aspects ofdevelopment, zoning, financing, leasing, due diligence, and market analysis.

REAL ESTATE EXPERIENCEErnst & Young Kenneth Leventhal, New York, NY Senior Consultant/AttorneyAdvised clients on various real estate issues. Structured and modeled realestate transactions and Real Estate Investment Trust (REIT) initial publicofferings using Excel software. Developed tax liability and OP unitallocation models for REIT roll-ups. Performed REIT acquisition andlending due diligence including lease and mortgage review; asset, incomeand distribution testing; and organizational requirement analysis. DevelopedREIT due diligence work plans, document requests and property servicequestionnaires. Researched and wrote briefs on various real estate tax issues.

Goldberg Weprin & Ustin, New York, NY Acquired extensive limited liability company law experience; draftingoperating agreements, partnership conversions, and conveyancing.Drafted commercial mortgages, notes, and assignments. Performed duediligence for commercial acquisitions. Represented commercial lendersand residential and commercial purchasers at closings. Handledforeclosure and construction litigation, DHCR, and tax remission issues.

Max E. Greenberg Trager Toplitz & Herbst, New York, NYClosed condominium and cooperative loans for institutional lenders.Researched and wrote briefs on construction issues. Corrected deficientloan packages and prepared closing binders.

PAVARINI MCGOVERN EXPERIENCEAcademia ProjectsNY Law School Flagship Building, 185 West Broadway, New York, NYColumbia University, Campbell Sports Center, New York, NY

Mixed-Use ProjectsSetai Fifth Avenue Hotel & Residences, 400 Fifth Ave., New York, NYCassaNY, 60-77 West 45th Street, New York, NYShangri-La NY, 610 Lexington Avenue, New York, NYThe Smyth Hotel, 85 West Broadway, New York, NY

Residential Projects40 East 66th Street, New York, NY45 Park Avenue, New York, NY47 East 91st Street, New York, NY57 Reade Street, New York, NY70 Bedford Street, New York, NY110+Broadway, New York, NY124 Hudson Street, New York, NY2forty, 240 Park Avenue South, New York, NYThe Anthem, 220 East 34th Street, New York, NYArcadia, 408 East 79th Street, New York, NYArtisan Lofts, 143 Reade Street, New York, NYBarbizon/63, 140 East 63rd Street, New York, NYThe Hubert, 3-9 Hubert Street, New York, NYK. Hov, Port Imperial North, West New York, NJMercer 40 Residences, 40 Mercer Street, New York, NYThe Pier Apartments, Jersey City, NJThe Urban Glass House, 330 Spring Street, New York, NY

Hospitality ProjectsThe East River Hotel, 410 East 92nd Street, New York, NYThe Standard, 848Washington Street, New York, NY

Commercial/Office Projects330 Hudson Street, New York, NY360 Madison Avenue, New York, NY505 Fifth Avenue, New York, NY579 Fifth Avenue, New York, NY580 Fifth Avenue, New York, NY598 Madison Avenue, New York, NY640 Fifth Avenue, New York, NYBank of America, 9 West 57th Street, New York, NYHarlem Park, 1800 Park Avenue, New York, NYLegal Aid Society, New York, NYWaterfront Corporate Center Phase II & Phase III, Hoboken, NJ

Retail Projects1 East 57th Street, New York, NYThe Belnord, 225 West 86th Street, New York, NY

Healthcare ProjectsKings County Hospital Center, DASNY, Brooklyn, NYNY Proton Center, New York, NY

Gov’t/Civic ProjectsQueens Family Court & City Agency Facility DASNY, Jamaica, NY

Cultural ProjeccsThe Battery SeaGlass Carousel, New York, NYFrench Embassy in US, New Y ork, NY

S c i a s c i a I Pa g e 2

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