a. Review the causes of action and common defenses in California and other nearby jurisdictions.
Negligence;
Strict Liability;
Breach of Contract;
Breach of warranty;
Misrepresentation;
Deceptive Trade Practices;
Breach of Fiduciary Duties;
Other Theories.Proper parties under each theory: Both plaintiffs and defendants.
Significance of CC&Rs, reserve studies and related materials.
Available measures of damages.
Common Defenses, including statute of limitations.
b. Statutory Overlay: Davis-Stirling, SB 800, Calderon. (Darrell Salomon)
c. Joint and Several Liability: Its implications for any contractor whose scope of work is involved.
d. Rules of indemnity and contribution: Type I provisions. What is left of the old Type I, II and III analysis? Compare and contrast indemnity and contribution.
e. Arbitration Provisions: Enforceable?
f. Attorneys’ Fees: The tail that wags the dog.
g. Good Faith Settlement. Significance of a contractual indemnity, and how to get around such provisions.
II. Insurance Coverage Issues: These issues often drive the entire litigation. (John Swanson and Rick Wylie)
a. AIEs: What are they? 1093 v 1185 forms. Guidelines for handling AIE issues.
b. Gaps in Coverage.
c. Wrap Policies: What are they and how do they work. Enrollment. Separate counsel or one counsel. Separate limits. Burning limits.
d. Basic Requirements: Is there Property Damage. It is commonly found, but when is it not? Examples of issues that are not Property Damage. The DeWitt theory. Eljer doctrine and its recent rejection by the Third District in California.
e. Basic Requirements: Occurrence and trigger of coverage: “all sums” doctrine.
f. Other Basic Requirements: Work product exclusions, Impaired Property, sistership, alienated premises, other “J” exclusions.
g. Known Loss Endorsements. A basis for Cumis Counsel?
h. Multi-unit endorsements: Was the existence of this adequately explained to the insured? Is there still a duty to defend? How was this handled at renewal?
i. SIRs. What are they? Do they apply to AIEs? Can they be stacked?
j. Burning Limits:
k. Role if DOI regulations in the different states.
l. Umbrella Coverage: Distinguish coverage A and Coverage B in modern forms.
m. Aggregate Limits:
n. Reservation of Rights Letters: Significance.
o. Who is the named insured?
p. Costs of “investigation.”
q. Attorneys’ fees as damages versus as costs: Supplementary payments obligations.
III. Procedure: (Leo Ashley, David Heryet, Rick Wylie)
a. Pre-filing Notices: They do matter.
b. Summons and Complaint: Can the carrier ignore the matter until then?
c. CMO Practice.
d. Motions. Class action certification.
e. Discovery.
f. Mediations.
g. Expert Witness Practice:
h. Trial.
i. Conflicts of interest:
i. Whether to oppose the motion of another party for good faith settlement;
ii. Allocation between hard costs and soft costs.
IV. Developer and GC Issues: (Leo Ashley and David Heryet)
a. Checklists and compliance issues: How to do it right.
b. Investigation Costs.
c. Relations with panel counsel for the insurer.
d. Documentation: Did the insurance documents really provide any coverage?
e. Inspection and supervision. Worth at least 5%?
f. Gaps in solvency of subcontractors: What to do.
g. Umbrella: Anti-insolvency provisions, and Coverage B.
V. Property Manager Issues: (John Swanson)
a. Witnesses?
b. Can they be sued?
c. Insurance coverage.
d. Indemnity.
VI. Subcontractor Issues: (Leo Ashley and Rick Wylie)
a. Was required coverage provided?
b. Third party beneficiary theory.
c. Scope of contractual indemnity.
d. Last man standing?
e. Documentation.
VII. HOA Issues: (Leo Ashley and David Heryet)
a. Is as cross-claim available? CC Section 1368.4
b. D&O Coverage and reasonable expectation of coverage under other policies.
VIII. Remediation Contractors: (John Swanson, Rick Wylie and David Heryet)
a. Exposure to being dragged into the litigation.
VIII. Carrier Issues: (Leo Ashley and Rick Wylie)
a. Legal Audits. In general, the industry has not been aggressive about fighting these costs.
b. Wraps.