April 14, 2008

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Risk is inevitable on a jobsite. With the increased presence of BIM, the risks are new and evolving. The final audio conference in WPL Publishing’s Roadmap to BIM 2008 presented three legal perspectives on the inherent risks associated with building information modeling.

Louis Dennis, a partner with Zetlin & DeChiara, said, "The only way you can avoid risk entirely with BIM is to not use it. The folly of that is evident ... because it is going to become the predominant project delivery method."

So, if BIM is here to stay, the question comes down to how well the users trust the technology, he said. That level of trust and risk assignment is communicated through contract documents.

Dennis opined, "Until the standard forms are in place for some period of time and the industry develops more consistent ways of dealing with some of these issues, there’s going to be a lot of reluctance by counsel on fully collaborative types of projects."

Pat O’Connor, a partner with Faegre & Benson, advised that to determine risk, the parties must first decide the purpose of the model. Once that is determined, it will be easier to determine the risks for each party, he said. "It’s one thing to use modeling to enhance the design or construction process. It’s another to create modeling for a lasting purpose, like facilities management. If you’re creating a model that is in essence a separate product from the construction itself, then you have the kind of product liability issues that manufacturers traditionally have."

Dave Collings, a partner with insurance and risk management firm Ames & Gough, shared a case study to show the insurance perspective of risk management and BIM. It’s important to pay attention to the policy wordings, he said. How do professional and general liability policies address BIM? If a general liability policy excludes liability arising from professional services and a professional liability policy is not intended to cover liability arising from means and methods, how do the coverages mesh in an integrated BIM world? The answers are still evolving, but one thing is certain—attorneys and insurers will undoubtedly watch the developments with avid interest.