It’s that time of year. Thanksgiving is nearly upon us and Christmas is just around the corner, which means one thing: it’s time to make sure you have earned enough CLE and PDH before it is too late. Take a break from the holiday stress and earn your remaining CLE or PDH with us. Join Tennessee Construction Lawyers Steve Barton, Jimmy Duckworth, Preston Hawkins, J. Wallace Irvin and Jared Garceau at one of two live seminars produced by National Business Institute entitled: “Construction Defect Disputes & Litigation: Using Coverage, Case Law and Indemnification to Shift Liability.” This presentation is geared to architects, engineers and personal injury lawyers, but is open to anyone interested in learning more about shifting risk and liability in the construction industry.
Do you understand the definition of an “occurrence”? Do you know which “occurrences” cause property damage? Does “faulty workmanship” qualify as an accident? Courts across the country are split on the answers to these questions and many more. In this course, we will dig deep into the heart of the issue of construction defect cases and define policy language with the most current case law. The attorneys from Lewis Thomason’s construction practice group will equip you with techniques for allocating continuous coverage triggers and using CGL exclusions and exceptions as ammunition. You will also learn how to use indemnification language to strategically shift liability to the contractor, subcontractor and/or owner. Register today!
On December 7, Steven Barton, Jimmy Duckworth and J. Wallace Irvin present in Memphis at the Holiday Inn Hotel & Suites – Wolfchase, beginning at 9:00 a.m. CST. On December 8, J. Wallace Irvin, Preston Hawkins and Jared Garceau travel to Johnson City and will speak at the Carnegie Hotel.
For more information or to register, please click on Memphis (December 7) or Johnson City (December 8)
Agenda / Content Covered
I. The Interplay of Multiple Policies: Detangling Coverage and Allocating Liability
9:00 – 9:30, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.
- Locating Historical Insurance and Using it Strategically
- Commercial General Liability (CGL) and Wrap Policies
- Builder’s Risk
- Umbrella and Excess Liability Coverage
- Professional Liability, E&O and Design Malpractice
- Performance Bond Coverage
II. Defining “Occurrence,” “Property Damage,” “Accident” and “Faulty Workmanship” with Recent Case Law
9:30 – 10:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.
- What is the Definition of a “Defect” Under the Act?
- Is Violation of the IRC/UBC a Per Se “Defect”? Can the Builder/Vendor Shift Liability on the Subs?
- When is the Contractor (or Insured) “Legally Obligated to Pay?”
- Occurrence vs. Claims Made Policies
- Definition of “Occurrence”
- Definition of “Accident”
- What “Occurrences” Cause “Property Damage”?
- Property Damage That Triggers Duty to Defend
- Does “Occurrence” Apply to “Faulty Workmanship”?
- Does “Faulty Workmanship” = Accident?
- State Statute Update, Current Trends and Recent Developments
III. Trigger Allocation and Allegations; When did the Trigger Occur?
10:30 – 11:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.
- Finding the Source of Construction Loss/Damage
- Poorly Drafted Construction Records
- What if the Maintenance Records are Nonexistent?
- Using Experts Effectively
- Continuous Coverage Triggers
- Exposure? Injury-in-Fact? Manifestation?
- Pro Rata Time on the Risk
- Recent Case Law, State Statutes and Current Trends
IV. EXCLUSIONS: Court Interpretation and Litigation Strategy
11:15 – 12:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.
- “Your Work,” “Your Property” and/or “Your Product”
- The Subcontractor Exception
- Contractual Liability
- Progress Loss, Residential and/or EIFS
- Pollution Exclusions
- Impaired Property
- CGL Exceptions
- Recent Case Law, State Statutes and Current Trends
V. Detangling Indemnification and Shifting Liability
1:15 – 2:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.
- Who’s Responsible: Architect? Engineer? Designer?
- Proving Joint and Several Liability and Extent of Responsible Party
- Using Indemnification and Hold Harmless Agreements/Provisions to Shift Liability
- What Language Works and What Doesn’t?
- How to Enforce
- Defenses
- Additional Insured Provisions
- Recent Case Law, State Statutes and Current Trends
VI. How to Determine the Priority of Coverage: Vertical and Horizontal Exhaustion
2:15 – 3:15, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.
VII. Litigating the Construction Defect Claim: Coverage vs. Liability
3:30 – 4:30, Written by All Faculty. Presented by Stephen C. Barton and Wallace Irvin in Memphis and Preston Hawkins and Wallace Irvin in Johnson City.
- Differentiating Between Tort and Coverage Issues; Bifurcating Coverage from Liability
- Deposition Techniques: Insurance Actuary, Architect, Contractor
- Economic and Non-Economic Damages
- Filing a Dispositive Motion
- Action for Declaratory Relief
- Recent Case Law, State Statutes and Current Trends