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OCTOBER 2017

 

 

I hope that you plan to attend the Insurance Industry Institute (I-3) on November 9 and 10 at the Sheraton New York Times Square. Register by clicking on the following: https://thefederation.site-ym.com/events/register.aspx?id=961677&itemid=6629ae04-bb70-43ff-b23b-fc941e07e412.

 

 Quote of The Month

Believe in yourself! Have faith in your abilities. Without a humble but reasonable confidence in your own powers you  cannot be successful or happy. Norman Vincent Peale.

 

Featured  Guest Speaker and FDCC Sponsor – Stuart Simon

STUART SIMON,  a principal founding partner at AJC American Jury Centers TM, has assisted attorneys and corporations in the development of trial strategies and tactics from a social science perspective since 1994.

Mr. Simon sPecializes in helping his clients develop comprehensive communications strategies for complex and controversial situations.  He has conducted focus groups and mock trials in construction matters for over twenty year is venues across the nation.  He has prepared contractors, engineers, architects, safety personnel, expert witnesses and executives in the industry for deposition and trial testimony.

 

Mr. Simon is the author of Witness Communication Training: Helping Witnesses Learn to Deliver and Defend the Truth Under Adverse Examination (Simon, Betanzos & Campo; 2016).  For over 20 years, he has been a featured speaker at conferences in the U.S and abroad.  He has published numerous articles and written or contributed in the writing of a series of books focused on offering truthful and meaningful testimony.  Mr. Simon holds a JD from Widener University School of Law and an undergraduate degree from Rutgers University. He currently resides with his family in Sun Valley, Idaho.

Upcoming Events

 

For the Winter meeting at Amelia Island, we are planning for the following:

 

“Preparing the Anti-Venom for the Corporate Safety Director in Construction”

Marc Harwell, Construction Section Chair and Trial Tactics’ Chair Marc Young, are teaming with Stuart Simon of American Jury Centers (AJC) to provide guidance for your deposition preparation of the Corporate Safety Director or other officers in the context of the Construction Industry. Addressing reptile theory tactics  at an advanced level will be the focus of the preparation.

 

News and Noteworthy

Please check out Robert Moore’s article that discusses the importance of the CG 20 10 04 13 that issued in the “Crane Hotline” at the end of September. Does your policy currently have the CG 20 10 04 13? If your clients don’t have it, ask for their interpretation of the endorsement. The new endorsement can really help the downstream contractor.

 

Please send to Marc Harwell at marc.harwell@leitnerfirm.com notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

This month Kevin Faley will post a blog titled as follows on the FDCC website: Additional Insurance and Proximate Cause After Burlington v. NYCTA.

 

And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc Harwell for consideration.

 

Membership

If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.

 

 

SEPTEMBER 2017

 

Quote of The Month
“Love all, trust a few, do wrong to none.” ― William Shakespeare

Featured Member

Joanne Blackburn - A native of Washington, Joanne takes a Northwest approach to practicing law. Joanne welcomes the opportunity to help her clients develop outside-the-box solutions that are designed to avoid protracted litigation. However, if the dispute needs to be settled in Court, she is no stranger to the Courtroom and welcomes the challenge. She became a partner with Garvey, Schubert & Barer in Seattle in 1999 and later moved to Gordon Thomas Honeywell as a partner in 2008.

 

Her primary areas of practice include defense litigation, products liability, construction, insurance defense and coverage, broker and agency defense, and appellate advocacy. She is past president of the Washington Defense Lawyers, where she also served on the board of directors for eight years. She is also a past Board Member of the Defense Research Institute (DRI).

 

Joanne received her undergraduate degree from the University of California at Berkley and her JD from the University of Notre Dame. She has been a long-time, active supporter and board member of FareStart, a culinary job training and placement program for homeless and disadvantaged individuals. She enjoys climbing, cooking, and fishing for crab with her family.

 

Upcoming Events
For the Winter meeting at Amelia Island, we have changed topics and are planning for the following:

“Preparing the Anti-Venom for the Corporate Safety Director in Construction”
Marc Harwell, Construction Section Chair and Trial Tactics’ Chair Marc Young, are teaming with Stuart Simon of American Jury Centers (AJC) to provide guidance for your deposition preparation of the Corporate Safety Director or other officers in the context of the Construction Industry. Addressing reptile theory tactics at an advanced level will be the focus of the preparation.

 

News and Noteworthy

Please check out Robert Moore’s article that discusses the importance of the CG 20 10 04 13 that will issue in the “Crane Hotline” at the end of September, and with his permission we will print for you or link you to it in our October newsletter. But until then ask your construction clients: Does your policy currently have the CG 20 10 04 13? If your clients don’t have it, ask for their interpretation of the endorsement. The new endorsement can really help the downstream contractor.

 

Please send to Marc Harwell at marc.harwell@leitnerfirm.com notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post
Check out our section’s June and July blogs below.

 

And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc Harwell for consideration.

 

Membership

If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.



AUGUST 2017

 

I give a special thank you to Derek Lick, Matt Cairns, and Robert Moore for their fine presentation last week on Contractual Risk Transfer – The Changing World of Indemnification and Insurance in Construction Contracts and Litigation.

 
I welcome our new Vice Chair, Jay Old, who is featured below. And I thank our other Vice Chairs, Kevin Faley, Derek Lick, and Robert Moore for all of their assistance last year and for the support that I know that they will provide this year.

 

 

Quote of The Month

 "It is every man's obligation to put back into the world at least the equivalent of what he takes out of it." -Albert Einstein

 

Featured Member

 

Jay Old:  Born in Beaumont, Texas. Educated at Texas A&M University and Texas Tech University School of Law, Jay began his career at a large national firm in Houston before moving home to raise his family. Jay’s practice has been varied and granted him the opportunity to work with, and against, some of the most seasoned, highly regarded lawyers in the country.

Jay is also committed to serving his profession. Jay is a former President of the Texas Association of Defense Counsel, the largest state-wide defense lawyer organization in the country. Jay chaired the Construction Law Section of the State Bar of Texas and served on numerous task forces appointed by both the State Bar and the Texas Supreme Court. He has earned an AV Rating by Martindale-Hubbell, is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialist, a member of ABOTA, a Fellow in the Texas Bar Foundation and is an active member in DRI and the Federation of Defense and Corporate Counsel (“FDCC”).

Being a full-time lawyer does not prevent Jay from being active in his community. Recently, Jay ran for election to the United States Congress in the race to replace Ron Paul in the 14th Congressional District in Texas. Jay has served on the Advisory Board of Christus St. Elizabeth Hospital, has held numerous leadership roles in his church, the Beaumont Chamber of Commerce, Downtown Rotary Club of Beaumont, the Symphony of Southeast Texas and numerous other organizations. Jay’s wife, Ann Clary, is from Amarillo. Their daughter Helen Elizabeth is a graduate of the University of Virginia, and their son Jim, an Eagle Scout, is enrolled at the University of Virginia.

  

Upcoming Events

 For the Winter meeting at Amelia Island, we are planning for the following:

“Reversing the Reptile Through Voir Dire”

Stuart Simon of AJC and Marc Young of Cokinos | Young and who is Chair of Trial Tactics, and Marc Harwell of Leitner, Williams, Dooley & Napolitan, PLLC and perhaps a few others will explore novel methods of questioning during voir dire to reveal the jurors who are most susceptible to reptile tactics by plaintiff’s counsel, to rehabilitate the venire panel, and to reveal to the panel the manipulation that counsel for the plaintiff has employed and in so doing use the reptile theory to bite the real reptile.

 

News and Noteworthy

Please send to Marc Harwell at marc.harwell@leitnerfirm.com notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

Check out our section’s blog last month on the FDCC website. 

 

And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc Harwell for consideration.

 

Membership

 If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.

 

 

JULY 2017

 

Quote of The Month

If you fell down yesterday, stand up today. H. G. Wells

 

Featured Member


R. Matthew “Matt” Cairns is a Shareholder-Director in Gallagher, Callahan & Garrell, PC in New Hampshire. His practice is diverse. He represents the interests of individuals, professionals, insurers, manufacturers, transportation and other companies in diverse commercial, complex and traditional litigation matters in all state and federal courts and state agencies.


Matt also serves as general counsel to several closely held businesses in New Hampshire. He is also experienced in general corporate and municipal representation, and risk management training.

In October 2011, Matt completed a one-year term as the 2011 president of DRI. Matt is selected for inclusion in The Best Lawyers in America® in the fields of Construction Litigation, for which Best Lawyers® further recognized him as "Lawyer of the Year" 2015, Concord, NH, Labor & Employment Litigation, Municipal Litigation, Personal Injury Litigation and. He has also been selected to the list of New England Super Lawyers® since 2007. Matt is the only New Hampshire lawyer listed in the International Who's Who of Business Lawyers under Product Liability Defense since 2014.


Matt serves as a Dean of the FDCC Litigation Management College and is currently Chair of the FDCC Products Liability Section.


He is admitted to the New Hampshire Supreme Court, United States District Court for the District of New Hampshire, United States Bankruptcy Court for the District of New Hampshire, the First Circuit Court of Appeals, and the United States Supreme Court.


Upcoming Events

During the week of July 27, 2017 at the Fairmont Le Montreux Palace, Derek Lick, Matt Cairns, and Robert Moore will address “Contractual Risk Transfer – The Changing World of Indemnification and Insurance in Construction Contracts and Litigation.

 

Wouldn’t it be nice if others would contractually agree to take responsibility for your errors?  The panel will first discuss how general contractors attempt to transfer risk to subcontractors and require subcontractors provide them with insurance coverage.  Then they will focus on how some states have begun to prohibit or limit such requirements either through legislative action or as the result of case law.  These risk-transfer provisions can have a significant impact on our clients, as they can require indemnification for all risk and liability, sometimes regardless of fault.  Similarly, the insurance coverage provisions can require a subcontractor to obtain insurance for the general contractor for the general contractor’s own fault – sometimes in an attempt to circumvent anti-risk-shifting law.  The panel is expected to highlight the changing landscape of risk shifting so that FDCC members can quickly assess the impact and enforceability of such provisions.

Please plan to attend.

 

For the Winter meeting at Amelia Island, we are planning for the following:

 

“Reversing the Reptile Through Voir Dire”

Stuart Simon of AJC and Marc Young of Cokinos | Young and who is Chair of Trial Tactics, and Marc Harwell of Leitner, Williams, Dooley & Napolitan, PLLC and perhaps a few others will explore novel methods of questioning during voir dire to reveal the jurors who are most susceptible to reptile tactics by plaintiff’s counsel, to rehabilitate the venire panel, and to reveal to the panel the manipulation that counsel for the plaintiff has employed and in so doing use the reptile theory to bite the real reptile.

  

News and Noteworthy

 

Please send to Marc Harwell at marc.harwell@leitnerfirm.com notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

Check out our section’s blog last month on the FDCC website.  

And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc Harwell for consideration.

 

Membership

If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.

 

Enjoy Switzerland!  

Marc H. Harwell, Construction Section Chair

 

 

JUNE 2017

 

Quote of The Month

If you are going through hell, keep going! Winston Churchill 

 

Featured Member – Marc Young

 Marc Young is a co-founder of Cokinos | Young and is at the helm of the firm’s newest office in Austin. Marc handles a wide variety of claims, such as product liability, construction defects, premises liability, commercial disputes and trucking accidents. Marc is Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization and has tried well over 100 cases in both state and federal courts. He continues to try a significant number of cases each year. Marc is knowledgeable and well-versed in matters relating to products liability, trucking and transportation law, including many lawsuits involving death or other serious injuries. Marc heads up the firm’s Tort Litigation Section, which deals primarily with the defense of corporations and individuals sued for claims involving personal injury and property damage. Marc also remains active within the defense bar by writing, speaking and chairing important committees and subcommittees.

 

Upcoming Events

 During the week of July 27, 2017 at the Fairmont Le Montreux Palace, Derek Lick, Matt Cairns, and Robert Moore will address “Contractual Risk Transfer – The Changing World of Indemnification and Insurance in Construction Contracts and Litigation.”

 

Wouldn’t it be nice if others would contractually agree to take responsibility for your errors?  The panel will first discuss how general contractors attempt to transfer risk to subcontractors and require subcontractors provide them with insurance coverage.  Then they will focus on how some states have begun to prohibit or limit such requirements either through legislative action or as the result of case law.  These risk-transfer provisions can have a significant impact on our clients, as they can require indemnification for all risk and liability, sometimes regardless of fault.  Similarly, the insurance coverage provisions can require a subcontractor to obtain insurance for the general contractor for the general contractor’s own fault – sometimes in an attempt to circumvent anti-risk-shifting law.  The panel is expected to highlight the changing landscape of risk shifting so that FDCC members can quickly assess the impact and enforceability of such provisions. Please plan to attend!

 

For the Winter meeting at Amelia Island, we are planning for the following:

 “Reversing the Reptile Through Voir Dire”

Stuart Simon of AJC and Marc Young of Cokinos | Young and who is Chair of Trial Tactics, and Marc Harwell of Leitner, Williams, Dooley & Napolitan, PLLC and perhaps a few others will explore novel methods of questioning during voir dire to reveal the jurors who are most susceptible to reptile tactics by plaintiff’s counsel, to rehabilitate the venire panel, and to reveal to the panel the manipulation that counsel for the plaintiff has employed and in so doing use the reptile theory to bite the real reptile.

 

News and Noteworthy

 On behalf of a very large and solvent GC, Marc Young just settled a 22 story defective Condo case with claimed damages of 36 million, before suit was ever filed. Texas has statutory requirements that require the plaintiff to provide a detailed report and opportunity to inspect as a condition precedent to filing suit. Due to the size of the structure and breadth of the alleged defects, Marc convinced the HOA to give him an extra sixty days before they filed suit. They agreed, on the condition that we mediate the last week of the deadline and try to resolve it. In the meantime, Marc’s client got its subs out and started looking at fixes. The Condo Association allowed us to do mock ups of the proposed repairs so they and their experts could be convinced the repairs would work, and it also allowed our subs to get real lean on their bids because they knew exactly what it would take to do the work. His client had a wrap policy that had a diminishing limits primary and a large excess. Only the excess came to the mediation, and the case settled. Nobody thought it could happen. But it did! Way to go Marc!

 

Please send to Marc Harwell at marc.harwell@leitnerfirm.com notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

Be on the lookout for our section’s blog this month. 

 

And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc Harwell for consideration.

 

Membership

 If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.

 

Sign up for Switzerland!  

 

 

MAY 2017

 

Quote of The Month

Opportunity is missed by most people because it is dressed in overalls and looks like work. Thomas Edison

 

Featured Member – Michael Ludwig

 

Michael has been a Partner at the Phoenix, Arizona office of Jones, Skelton & Hochuli since 2001. He is a past-president of the Arizona Association of Defense Counsel. He has served on the Construction Law Steering Committee for the Defense Research Institute and is a past chair of the Construction Practice Group of USLAW Network. He has co-authored the Arizona Construction Practice Manual published by the Arizona State Bar and was a member of the Executive Council for the State Bar’s Construction Section. He has been selected as a member of Arizona’s Finest Lawyers and Southwest Super Lawyers for construction litigation. And he is a member of our section and will be writing the Insights Article for us which will be published in September. Thanks Michael!

 

Upcoming Events

During the week of July 27, 2017 at the Fairmont Le Montreux Palace, Derek Lick, Matt Cairns, and Robert Moore will address“Contractual Risk Transfer – The Changing World of Indemnification and Insurance in Construction Contracts and Litigation.

 

Wouldn’t it be nice if others would contractually agree to take responsibility for your errors?  The panel will first discuss how general contractors attempt to transfer risk to subcontractors and require subcontractors provide them with insurance coverage.  Then they will focus on how some states have begun to prohibit or limit such requirements either through legislative action or as the result of case law.  These risk-transfer provisions can have a significant impact on our clients, as they can require indemnification for all risk and liability, sometimes regardless of fault.  Similarly, the insurance coverage provisions can require a subcontractor to obtain insurance for the general contractor for the general contractor’s own fault – sometimes in an attempt to circumvent anti-risk-shifting law.  The panel is expected to highlight the changing landscape of risk shifting so that FDCC members can quickly assess the impact and enforceability of such provisions.

 

Please plan to attend. And if you have ideas for our program in the Winter of 2018, please contact me.

 

News and Noteworthy

 Please send to Marc Harwell at marc.harwell@leitnerfirm.comnotice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

Please check out Derek Lick’s insightful blog that published last month concerning the interesting history of Le Montreux Palace. Just a few of the interesting facts from his blog are as follows:

 

The Le Montreux Palace opened on March 19, 1906.

 

It was constructed in a “record time” of 18 months, and it was known at its opening for offering cutting edge novelties such as heating, electricity and private bathroom with hot and cold running water!

 

Le Montreux Palace was constructed to join another pre-existing hotel, the hotel Hotel du Cygne, which was built nearly 70s year earlier in 1837.

 

The hotel is the brain child of two famous Swiss pioneers from Montreux – Alexandre Emery and Ami Chessex who had acquired the adjacent Hotel du Cygne.

 

The architect for the project was another Swiss named Eugene Jost.  For twenty years he built or renovated nearly fifty buildings, mostly long-lasting and large – including the Château Saint-Maire ("Saint-Maire Castle") in Lausanne, Switzerland.  He won first prize in the national competition for the Hôtel des Postes in Berne and second prize for that in Zurich and also created a commemorative monument to William Tell.

 

Each quarter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc for consideration.

 

Membership

If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.

 

 

APRIL 2017

 

Quote of The Month

The price of success is hard work, dedication to the job at hand, and the determination that whether we win or lose, we have applied the best of ourselves to the task at hand. Vince Lombardi.

 

Featured Member – Robert Moore

Bob has left NationsBuilders Insuranc and is now an officer and GC for 2RM Risk and Captive Management. He is the managing member of 3 companies that he formed to bring value to the Heavy Equipment Construction Field. As many of you know, he started practicing law while in law school trying felon cases in 1976, and moved on to be become a first chair felony trial prosecutor. He has worked at Great American Insurance Company, and as a partner at Stone & Moore in Chicago. Ten years ago he left the active practice of law, to work exclusively in the Crane, Rigging, Millwright, Concrete Pump and Specialized Transportation arena. He is a managing member of a claims company, risk management/loss control company and captive management company. He and his wife, Catherine, live in beautiful Chattanooga, TN. At our last conference in Charleston, SC, he spoke at the construction section meeting on the topic of “incorporation by reference.” And all who attended were treated to his incredible insight. Thanks Bob!

 

Upcoming Events
During the week of July 27, 2017 at the Fairmont Le Montreux Palace, Derek Lick, Matt Cairns, and Robert Moore will address “Contractual Risk Transfer – The Changing World of Indemnification and Insurance in Construction Contracts and Litigation.

 

Wouldn’t it be nice if others would contractually agree to take responsibility for your errors?  The panel will first discuss how general contractors attempt to transfer risk to subcontractors and require subcontractors provide them with insurance coverage.  Then they will focus on how some states have begun to prohibit or limit such requirements either through legislative action or as the result of case law.  These risk-transfer provisions can have a significant impact on our clients, as they can require indemnification for all risk and liability, sometimes regardless of fault. Similarly, the insurance coverage provisions can require a subcontractor to obtain insurance for the general contractor for the general contractor’s own fault – sometimes in an attempt to circumvent anti-risk-shifting law.  The panel is expected to highlight the changing landscape of risk shifting so that FDCC members can quickly assess the impact and enforceability of such provisions. Please plan to attend.

 

News and Noteworthy

Please send to Marc Harwell at marc.harwell@leitnerfirm.com notice of new noteworthy verdicts, settlements, decisions; awards, honors, or achievements; and articles for publication to the Construction Section.

 

Blog Post

Be on the lookout for our section’s blog this month.  

 

And each quarter thereafter, the Construction Section will continue to post an informative blog that provides practical advice and information that can only help you in your practice. If you have addressed through brief or otherwise a topic that is particularly relevant and insightful for the Construction Industry, please send to Marc for consideration.

 

Membership

 If you know of an attorney who you think is worthy of the FDCC, please mention him or her to Marc, and he will assist with the admissions proposal process.

 

See you in Switzerland!

 

 

 

BLOGS

 

July 2017 BLOG

 

CAGING THE REPTILE

By:  Marc A. Young

Cokinos/Young

Austin, TX

 

In Reptile: The 2009 Manual of the Plaintiff’s Revolution, authors Don C. Keenan and David Ball advocate a trial presentation  that is designed to persuade jurors by appealing to their “reptile brains,” the “oldest” part of the brain and the part responsible for primitive survival instincts. From a scientific or physiological perspective, the theory is junk science. But the application of reptile tactics has been quite successful. In support of this point for those who believe in capitalistic markets, a used 2009 paperback copy of the book costs $695 through Amazon books.

 

Basically reptile tactics are a sophisticated application of the Golden Rule Arguments which are largely prohibited. Appendix B-1 of the book includes the leading case holdings on “Golden Rule” from every state. And a fundamental premise of the authors is to employ reptile tactics to convince jurors to make decisions based upon “personal reasons.”

 

The Safety Rule is the start of the process. Keenan and Ball illustrate this concept with the phrase “Safety Rule + Danger = Reptile.” The next step is to appeal to jurors’ fears and prejudices by bringing the danger home to the jurors, so that that their decisions will be driven by their instincts and emotions. The last step is to empower the jurors to reduce or eliminate the danger.

 

Proponents of the tactic have been introducing the strategy as early as the Complaint that starts the litigation. The tactic is used in depositions, voir dire, trial testimony, and closing argument.

 

Motions in Limine have been argued by many authors as a key strategic device for the defense in combating reptile tactics. But a search of all jurisdictions using “golden rule” and reptile and limine on July 8, 2017 through Lexis revealed only 17 reported decisions nationwide with very mixed results. [Brandell v. Pagan, 2015 Colo. Dist. LEXIS 424 (D. Ct. of Colo., Denver Co., April 9, 2015); Coleman v. Home Depot U.S.A., Inc., 2016 U.S. Dist. LEXIS 121445 (S.D. FL, Feb. 8, 2016); Phillips v. Dull, 2017 U.S. Dist. LEXIS 90020 (Cen. D. Utah June 12, 2017); Turner v. Salem, 2016 U.S. Dist. LEXIS 102239 (W.D.N.C. Jul. 29, 2016); Jackson v. Asplundh Constr. Corp., 2016 U.S. Dist. LEXIS 149145(E.D.Mo., Oct. 13, 2016); Pimenta v. Sager, 2016 Fla. Cir. LEXIS 6010 (Cir. Ct. Palm Beach, Sept. 01, 2016); Rutkowski v. Woodman, 2014 Colo. Dist. LEXIS 1556(D.C. Col., Arapahoe Co., May 12, 2014); Harper v. Tveter, 2015 U.S. Dist. LEXIS 114650 (D.C. UT, Aug. 27, 2015); Blackwell v. Simmons, 2015 Fla. Cir. LEXIS 418 (Cir. Ct., Palm Beach Co., Apr. 20, 2015); Bunch v. Pac. Cycle, Inc., 2015 U.S. Dist. LEXIS 187867 (N.D. Ga., Apr. 27, 2015); Elwynn & Susan L. Hewlett As Next Kin of Kaleo Hewlett v. Brown, 2013 Ga. State LEXIS 2686 (Ga. Fulton Co., Mar. 11, 2013); Aidini v. Costco Wholesale Corp., 2017 U.S. Dist. LEXIS 55863 (D.C. Nev., Apr. 12, 2017; Biglow v. Eidenberg, 369 P. 3d 341; Hooper v. Ruta, 2013 Colo. Dist. LEXIS 475 (D.C. Col, El Paso Co., Nov. 21, 2013); Bandell v Pagan, 2015 Colo. Dist.  LEXIS 507 (Col., Denver Co., Mar. 25, 2015); Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775 (W.D.N.C. Charlotte, Oct. 30, 2015); Plaintiffs: Donnelly v. Defendants: Edward J. Ho, 2013 Colo. Dist. LEXIS 640 (D.C. Colo, Denver Co., Sept. 11, 2013)].  In reviewing the rulings, Golden Rule arguments were mostly granted. But Motions in Limine concerning reptile tactics were not as successful. A common theme that seemed to run through the majority of unsuccessful Motions by the defense pertained to a failure to well define what was being asked of the judge to exclude. But even most of the unsuccessful Motions may have accomplished what the defense lawyers wanted – to educate the Judge and make him/her ready for specific objections during trial.

 

In dealing with reptile tactics, consider using the following tools:

 

Motion to Strike from the Complaint allegations that are reptile based. For instance, “Construction Contractors have a duty to the general public to diligently exercise and employ only the safest available building practices when overseeing a construction project.” What does the general public have to do with a case involving an injured person? Doesn’t the building code adopted by your municipality and the relevant statutes of your particular State define the duties of the contractor?

Motion in Limine is a further educational device, is a warning to the Judge of what to expect, and is a clean-up tool.

 

Most importantly, prepare your witnesses and address reptile tactics in your voir dire.

 

As to witness preparation, have your witnesses ready to deal with the “absolute questions” such as: “Surely you agree that construction contractors who fail to implement the safest possible building construction techniques are unreasonably endangering the public?”

 

As for voir dire, attend the FDCC Winter meeting at Amelia Island where the Construction Section will feature “Reversing the Reptile Through Voir Dire.” In specific, Stuart Simon of AJC and Marc Young of Cokinos | Young and who is Chair of Trial Tactics, and Marc Harwell of Leitner, Williams, Dooley & Napolitan, PLLC and who is Chair of the Construction Section will explore novel methods of questioning during voir dire to reveal the jurors who are most susceptible to reptile tactics by plaintiff’s counsel, to rehabilitate the venire panel, and to reveal to the panel the manipulation that counsel for the plaintiff has employed and in so doing use the reptile theory to bite the real reptile.

 

As a “teaser point” to keep you on the lookout for a blog on this subject to issue in advance of that conference, consider always asking the panel the following: “How important is safety to you?”

 

 

 

June 2017 BLOG

 

DON’T LET SUIT GET FILED
By:  Marc A. Young

Cokinos/Young

Austin, TX

In December 2016, my general contracting client received a statutorily required notice letter providing notice of alleged defects in a 22-story condominium, which was substantially completed just three months short of the running of the 10-year statute of repose.  The demand letter triggered a one-year extension of that statute and provided significant details concerning the alleged effects.  The original notice also put us on notice of destructive testing that was going forward and my client elected to attend and participate over the next several weeks.  At the conclusion of the inspections, the Plaintiff’s experts wrote a 54-page report, complete with photographic evidence, of the alleged deficiencies in almost every system of the construction.  By statute, the provision of the report started a 30-day window in which my client could inspect and respond with an offer of settlement that, if reasonable, would prohibit the condominium association (COA) from being entitled to attorney’s fees should they file suit. 

While this type of claim is common to those of us involved in construction law, what is uncommon was my client’s response.  My client’s president directed that I take all necessary steps to prevent the suit from ever being filed because, the filing of a lawsuit would be 100 times more detrimental to the client and their reputation than any resolution pre-suit could possibly be.  I can honestly say in my 35-year career, no other client has been so adamant about keeping a suit from being filed.

Like many of you, I have settled plenty of cases pre-suit.  However, I can honestly say I have never resolved a 22-story construction defect pre-suit.  Fortunately, my client had a great team to assist me.  They jumped in with both feet and began contacting the subcontractors who had worked on the job to go out and do inspections and provide feedback on the Plaintiff’s expert report.  The client was able to arrange for subcontractors to do mockups of the Plaintiff’s expert’s proposed fixes and a couple of our proposed fixes to determine, not only whether the fixes would be successful, but more importantly, how much it would cost.  Within three weeks, we had hard bid pricing for every scope of repair so that we were able to provide pricing for the Plaintiff’s proposed fixes, as well as our own alternative fixes, so that a budget could be established.

In the meantime, the primary and excess carriers had been placed on notice and were being provided with information on an almost daily basis, advising them of the case law, the importance of an early resolution, their insured’s view of the Plaintiff’s alleged defects and proposed repairs as well as detailed hard bid estimates for what it would cost to repair the defects, which we believed were attributable to our work.  It was a little more complicated trying to distinguish between design responsibility and contractor responsibility but ultimately, we were able to put some percentage division so as to allow the claims handlers to have complete information on the alleged claims, the proposed fixes, the actual cost of the proposed fixes and proposed costs for alternative fixes, which were dramatically less than the Plaintiff’s Cadillac fix approach.  All of the subcontractors were included with the general contractor on a WRAP policy, so dividing responsibility among contractors was unimportant, as all construction defect fixes covered by the WRAP would be paid by one policy with the excess being a following form policy. 

We had weekly meetings with the relevant parties, including the insurance adjusters, to make sure everyone was on the same page and that the timeframe in which we needed to have significant authority could be achieved.

I can honestly say it got pretty hairy as we got down towards the last two weeks prior to mediation.  It appeared as though the excess carrier was simply not going to be able to obtain the level of authority which even he believed he needed to settle the case at mediation.  However, because of our weekly meetings, he was able to provide us with the information he needed so we could provide him in detail exactly what he needed.  In addition, because of our experience in construction, we knew of a lot of questions that were likely to be asked that he did not mention so we were able to put that information together as well and have it available at the last minute.  As late as two days prior to mediation, I had no idea of whether the excess carrier would be able to come to mediation with the ability to resolve the matter.  We had exchanged repair pricing with the Plaintiff, so they knew that we had hard bids to repair the scope of work for dramatically less than what they had estimated.  In addition, we provided several alternatives to the repairs that obviated the need for tenants to move out during the repair work.  This was the biggest breakthrough in the damage model, as it provided an alternative that greatly diminished the Plaintiff’s asking price. 

With coverage counsel in hand and a very capable mediator, all parties met to determine whether the impossible could get done.  At the end of the day, it resolved in a draft release that was prepared and signed off on, subject to final board approval, which was obtained the following day.

Following mediation, the Plaintiff’s counsel told me he thought prior to this case, all of these notice provisions provided in the statute were worthless and no one would ever realistically resolve a significant construction matter pre-suit.  He is now a believer and to be honest with you, so am I.  It all started, however, with what seemed to be the most impossible demand by a client:  “Don’t let suit get filed.”

 

 

April 2017 BLOG 


As we approach our Annual Meeting, the Construction Committee thought it would share a bit of “construction” information about where we’ll be staying this summer, the Le Montreux Palace. (To our knowledge, the hotel contains no building defects and is structurally sound despite its historic age – all while being “perfectly appointed with modern amenities!”)

The Le Montreux Palace opened on March 19, 1906.

  • It was constructed in a “record time” of 18 months, and it was known at its opening for offering cutting edge novelties such as heating, electricity and private bathroom with hot and cold running water!
  • Actually, the Le Montreux Palace was constructed to join another pre-existing hotel, the Hotel du Cygne, which was built nearly 70s year earlier in 1837.
  • The hotel is the brain child of two famous Swiss pioneers from Montreux – Alexandre Emery and Ami Chessex, who had acquired the adjacent Hotel du Cygne.
  • The architect for the project was another Swiss named Eugene Jost. For twenty years, he built or renovated nearly fifty buildings, mostly long-lasting and large – including the Château Saint-Maire ("Saint-Maire Castle") in Lausanne, Switzerland. He won first prize in the national competition for the Hôtel des Postes in Berne and second prize for that in Zurich and also created a commemorative monument to William Tell.
  • The hotel has undergone dozens of renovations and changes, including in 1965, 1974 (the hotel's main entrance is relocated to the south with a large modern lobby and two glass elevators allowing guests direct access to reception), 1979 (opening of the Grand Café, the first modern all day restaurant and coffee shop in Montreux), 1981 (the sixth floor, formerly staff accommodation, is turned into guest rooms and 3 tower suites are created on the seventh floor), 1984, 1991 (the Hotel du Cygne undergoes complete transformation for the first time since its opening); 1994 (the Montreux Palace invests again and refurbishes its southern entrance; gone are the glass elevators and space is made for a grand staircase with a red carpet leading to reception and the gourmet restaurant La Véranda), 1998 (all the rooms are re-cabled and a new communication system installed, enabling guests to use faxes, modems, new phones and televisions in their rooms), 1999, 2001, 2002, 2003, 2004, 2005 (the main kitchen of the hotel is being completely renovated and modernized), 2006, 2007, 2008-2009, 2014 and 2015.

Essentially, the Le Montreux Palace is one continuing construction project – hopefully just not while we are visiting. No word of any lawsuits as result of all that construction work!

By: Derek D. Lick Sulloway & Hollis, PLLC Concord, New Hampshire

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