Responding to or Bringing a Lawsuit

Presented by:

Patricia A.C. McCullagh, Esq. McCandlish Holton, P.C.,

1111 E. Main Street, P.O. Box 796 Richmond, VA, 23218Phone (804.775.3100) Fax (804.775.3800) www.lawmh.com

Defending Against Suit

Initial “Service” of the Lawsuit

Federal or State Court ?

Determine exactly how you were served.

Review the documents.

Call your lawyer and/or insurance company quickly- deadlines are running!

Who Will File Suit?

Customers/Clients

Subcontractors

Property Owner/General Contractor

Other third parties (employees, consumers, etc.)

Review Identified Causes of Action

Contract

Tort

Fraud

Warranty/Strict Liability

Statute of Limitations Injury to person- 2 years Injury to property- 5 years Breach of verbal contract- 3 years Breach of written contract- 5 years Fraud- 2 years Watch for accrual issues!

Statute of Repose

Evaluate Potential “Defenses”

Contract Exculpatory Clauses Pay when Paid Clauses Limitation of Liability Clauses Waiver Mitigation of Damages Estoppel

Tort Contributory Negligence Intervening and Superseding Causes Economic Loss Doctrine Spearin Doctrine Workers’ Compensation remedies

Fraud Pled with particularity? Truly a misrepresentation when made?

Evaluate Potential “Defenses”

Look at all types- general liability, auto, errors & omissions.

Review these policies not just when suit comes in, but also when an event occurs.

Review what is covered. Review the exclusions

“Work Product” exclusion. “Your work” exclusion. Intentional Tort exclusion.

Evaluate allocation when multiple polices are triggered.

Review Your Insurance Policies

Bringing Suit or Enforcing Your Rights

Analyze Remedies/Claims

Mechanic’s Lien Contract Quantum Meruit Indemnity/Contribution Tort Surety Bond Fraud

Mechanic’s Liens Who can file? When must you file? Against what can you file? Notice. Benefits of mechanic’s liens? Follow Va. Code Section 43-1 et

seq. strictly. Enforcement.

Damages Analysis(Plaintiff or Defendant)

Measure and Type

Review contract for limitations General contract damages Economic loss Consequential damages Delay and disruption damages Measure of damages to real property Attorneys’ fees Interest Punitive damages Consumer Protection Act

Questions?

Thank you!

Patricia A.C. McCullagh, Esq.McCandlish Holton, P.C.1111 East Main StreetRichmond, VA 23219

http://www.lawmh.com(804) 775-3100 (phone)

(804) 775-3800 (fax)