Just like in a marriage, no one at the outset of a closely held company expects things to go south and end in divorce. But just like in a marriage, the best time to address what will happen if things do not go as hoped is at the outset when everyone is excited and working …
Lauren Nuffort has featured three videos on her bio page which contain the following text.
Why is early involvement so important in property subrogation?
One of the biggest challenges in a property subrogation case is time. Insurance companies need to get on the site right away. The earlier you’re involved the better. The best practice is to get out to that loss site while the fire is still smoldering if you can. It’s really that quickly. The earlier the better because witnesses’ memories – they fade with time. The more you can gather information right off the bat, the better. You can interview witnesses, you can interview the policy holder, you can find the artifacts and the evidence that need to be preserved. Certainly with time the chance that artifacts or evidence disappears increases. And so, getting to the loss site as quickly as possible is the best practice.
Another important thing that you should consider in any loss is spoliation. Spoliation is a claim, more or less a defense, that can be raised by a third party who you are pursuing. And that third party can argue that you, as the subrogating carrier, did not preserve the evidence or preserve the scene or allow that party an opportunity to investigate the loss. So it’s important that you put these parties on notice, allow them an opportunity to come to the loss site to do their own investigation, and to agree upon the artifacts that will be preserved.
So for example, in a product defect case you might have one particular component of the product – that it caused the fire. And so, the question is how much do you need to keep? What should you retain? Certainly, as the party responsible for coordinating the loss site inspection, our experts will have an opinion on what they want to preserve and the third parties may have an opinion on what they want to keep. And so there needs to be a discussion about what is retained, what is preserved, and can we narrow down the focus so we don’t need to take everything from the loss site to make it manageable.
Why are contracts so important in construction defect litigation?
Contracts are a huge part of construction defect litigation because almost every construction defect case, at least that I’ve been involved, in involves a significant number of parties. At a construction site there are multiple contractors; multiple subcontractors; sub, sub-contractors of those subcontractors. And so, the contracts are really the first thing that you need to gather in a construction case. The contracts will share the relationship between different parties, who subcontracted work to somebody, whose job was it to do certain work, did a window installer keep the framing as part of their scope of work or was that subcontracted out. And so, understanding the basic relationship between the parties can come from the contracts.
The other important thing in the contracts will be the insurance requirements and did the parties obtain the insurance that they were required to obtain under the contract. Did they name another party as an additional insured under their contract? And so, gathering that information, which comes from the construction contract is very important.
The other parts of the contract will show is their indemnity requirements and if so, are those indemnity requirements valid under the state where you’re practicing. And so that’s very important to look at because typically you’ll try to shift liability or a party will try to shift liability to a party that has agreed to indemnify it for a loss and you want to know if that provision is valid under your state law.
So there’s a lot to look at in contracts and there’s a lot to gather so it’s very important that you have those contracts when you start a construction defect case.
What is a rewarding aspect in your practice as a professional liability defense attorney?
My primary practice on professional liability involves defending attorneys from all different types of backgrounds and practice areas, accountants, and design professionals such as different types of architects. The most rewarding part of defending claims that are brought against these professionals is knowing how passionate each professional is about what they do for their career day in and day out. They all have to make a professional decision in their career and unfortunately, what brings the claim to my attention is when an individual is not satisfied with the way that decision turned out. Whether or not there’s merit to that claim is kind of a secondary issue but for the most part, the clients that I work with show their true professionalism and the decision is one that is made with a lot of thought and a lot of experience and underlying knowledge.
And so, it’s not a decision that they loosely make or willy-nilly decide to make along the way. You know I will recognize that there are those claims where a professional in a legal malpractice case may have missed a deadline and that’s simply a human mistake. There might not be an excuse for that other than human error but for the most part, any claim that’s not involving sort of a scheduling issue or a mistake on that part really involves the professional decision of my client and I get a lot of personal gratitude with working with these individuals knowing how passionate they are about the work that they do.