Bredan Winslow-Nason and Carrie L. Ciliberto | Litigation Management Magazine | Fall 2015
Building Information Modeling, commonly referred to as “BIM,” is being used more and more often on construction projects of all types. Generally, BIM is the process of building a virtual structure before the actual structure is built. BIM is essentially a digital representation of the physical and functional characteristics of a building. A BIM is typically prepared in collaboration with the owner, architect, engineer, contractors, and subcontractors. It is intended to streamline the design and construction process, and attempt to identify problems with a building before it is constructed.
BIM also provides value for owners and others involved in the building’s life cycle, including facility maintenance, future upgrades/retrofits, and eventual demolition. BIM has no doubt revolutionized the way projects are delivered, maintained, and improved, and BIM will continue to expand as this new technology is adopted.
BIM and Litigation
BIM is not just revolutionizing the design and construction industry, but it is also revolutionizing the way we litigate construction defect cases. One way that BIM is useful to the lawyer and litigation manager is to help visualize and understand the components of a project. It is a common refrain of construction lawyers and litigation managers that construction defect cases are difcult to visualize and hard to understand. BIM can go a long way to alleviate this common problem.
Lawyers and litigation managers can learn a lot about a project just by studying a project’s BIM. It behooves a lawyer or litigation manager to spend time carefully studying a BIM. Tis may require the lawyer or litigation manager to sit down with the design and construction professionals who were involved in making the BIM. A BIM can be fairly technical, and BIM on one project might look very diferent from BIM on another project.
Time Well Spent
Studying the BIM is time well spent. It is much easier to visualize and understand a construction defect by spending the appropriate time studying a BIM. Tis is particularly true for defects involving concealed components of a building, like mechanical or electrical systems. A BIM can allow the user to peel back the layers of a building to reveal its component parts. A BIM also typically contains critical data about the component parts of a project such as what the components are made of, their structural dimensions, the way that the components are installed, how they are supposed to function, etc. Te BIM can distill critical information about a building, which in turn can save a signifcant amount of time when gathering information about the project and purported defect. A BIM can also be a useful tool to help others visualize and understand a project.
For example, BIM is useful as a demonstrative exhibit at a trial or at arbitration. Lawyers and litigation managers often grapple with how to present a complex construction defect case to a jury, judge or arbitrator. A BIM can help illustrate the various components of a building and provide some context to the dispute. A BIM can also be a useful mediation tool to help a mediator visualize and understand a project. A BIM can also be useful for an expert witness to help explain the issue to a jury, judge or arbitrator. The BIM may have critical data that can assist the expert witness in evaluating the defect.
BIM and Coverage Questions
A BIM can also be useful in understanding the insurance implications of a construction defect claim. It is often the case that there is insurance coverage for some but not all of the damages relating to a design or construction defect. For example, there may be no insurance coverage to repair a contractor’s defective work, but there may be coverage for damage that defective work has caused to other components of a building. A BIM can also help dissect a project into its component parts, which in turn can help a lawyer or litigation manager evaluate the covered versus non-covered damages.
Another important consideration when BIM is in play is to carefully review the contract provisions surrounding use of, reliance on, and responsibility for the BIM. A BIM execution plan defnes the scope of the model and its intended uses. A well-drafed contract with a BIM execution plan will contain provisions addressing each of those items, and can be instrumental, and perhaps definitive, in determining roles and responsibilities, as well as the corresponding liabilities. “A properly thought-out BIM execution plan, defining parties’ roles and responsibilities is crucial to ensure that a model contains the information with the precision and accuracy sufficient for its end uses,” says Dmitri Alferief, Senior Director of Virtual Construction at Te Associated General Contractors of America.
These are just some of the ways…