The field of construction defect litigation is growing and changing at a rapid pace. This crucial update includes new rulings and laws and walks you through the profoundly complex and often emotionally-charged construction defect dispute – from defining a defect, determining liability, uncovering insurance nuances and taking your case to trial. Order today!

1. Anatomy of a Defect: What it is and the Rules That Apply
2. Litigation: Allegations, Defenses and Proving Your Case
3. Bad Faith and Consent Judgements
4. Indemnity Provisions: Is the Subcontractor Responsible? What About the Design Professional?
5. Insurance: Covered vs. Uncovered?
6. Ethical Considerations

ANATOMY OF A DEFECT: WHAT IT IS AND THE RULES THAT APPLY
9:00 - 10:00, John K. Butler

• What Constitutes a “Defect?”
  (Includes: Construction Defect vs. Nuisance Claim, Defect Categories, Common Types of Patent and Latent Defects)
• Federal, State, and Local Regulations Regarding Construction Defects
  (Includes: Building Codes and Standards, Warranties and Magnuson-Moss, Miller Act, “Right to Repair/Right to Cure” Law, Statute of Limitations and Repose, Assignment of Claims, State and Local Regulations)
• Determining Standards of Care

LITIGATION: ALLEGATIONS, DEFENSES, AND PROVING YOUR CASE
10:00 - 10:30 and 10:45 - 11:15, Greg Clark

• Common Allegations and Defenses
• Notice of Claim
• Discovery
• Jury Instructions
• Essential Evidence: Preservation and Extrapolation
• Expert Depositions
• Procedural Issues
• Damages: What can be Recovered?
• Alternative Dispute Resolution

BAD FAITH AND CONSENT JUDGEMENTS
11:15 - 12:15, Bruce Winchell

INDEMNITY PROVISIONS: IS THE SUBCONTRACTOR RESPONSIBLE? WHAT ABOUT THE DESIGN PROFESSIONAL?
1:15 - 2:15, Alfred E. Donohue

• Key Contract and Subcontract Provisions, Including AIA and Consensus DOCS
• The Difference Between "Defend," "Hold Harmless" and "Indemnity"
• The Role of "Additional Insured"
• Is There a Right to Seek Indemnity Absent a Contract
• Economic Loss Rule
• Waiver, Variation and Estoppel
• Joint and Several Liability and Apportionment of Responsibility Under Indemnity Agreements

INSURANCE: COVERED VS. UNCOVERED?
2:30 - 3:30, Alfred E. Donohue

• Why Every Construction Defect Attorney Must Understand Coverage Issues - A Cautionary Tale
• Coverage Under Commercial General Liability Insurance Policies
  • Resulting Damage
  • Your Work
  • Indemnity Agreements and Exclusions to Indemnity
  • Attorney Fees Through Contract
  • CPA and Other Claims
  • What is an Occurrence for Purposes of Coverage
  • Other Coverage Issues - Known Loss, Fortuity, EIFS endorsements, mold exclusions, multi-family endorsements
  • Progressive Loss Exclusions (Damages Commencing Prior to Policy Inception)
• The Insurer's Duty to Defend - The Scope of the Duty
• Effect of the Insured's Late Tender on the Insurer's Duty to Defend and Indemnify

ETHICAL CONSIDERATIONS
3:30 - 4:30, Thomas F. Ahearne

• Joint Defenses
• Conflict of Interest
• Representing Multiple Parties
• How Lawyers can Avoid Being Witnesses

THOMAS F. AHEARNE is chair of the Litigation Practice Department at the Seattle law firm of Foster Pepper PLLC. He is also a founding member of its Insurance Coverage Practice Group, which represents the policyholder/claimant side in coverage disputes and resulting litigation against insurance companies in federal and state courts. A significant portion of his insurance coverage practice revolves around duty to defend, indemnification, investigation, and good faith issues relating to construction disputes, condominium litigation, directors’ and officers' claims, and municipal liability suits, as well as property damage losses and related business interruption/lost profits claims. Mr. Ahearne has lectured extensively on insurance coverage issues for various trade groups, associations, and other legal and insurance industry professionals. Mr. Ahearne is a member of the King County (Litigation Section), Washington State (Litigation Section), Federal (Litigation Section) and American (Tort and Insurance Section and Insurance Litigation Committee) bar associations, as well as the Washington Defense Trial Lawyers (WDTL). He earned his B.A. degree, magna cum laude, from the University of Notre Dame and his J.D. degree, with honors, from the University of Chicago.

JOHN K. BUTLER is an attorney with Preg O'Donnell & Gillett PLLC, where his practice concentrates on insurance defense litigation, mainly involving complex construction defect, products liability, maritime, and personal injury claims. His practice experience also includes general commercial and business representation. Mr. Butler is admitted to practice in all Washington state courts, as well as the U.S. District Court for the Western District of Washington. He is a member of the Washington Defense Trial Lawyers Association, the Construction Law Section of the Washington State Bar Association, and the King County Bar Association. Mr. Butler has served on the WDTL ad hoc Rules Committee, providing input on proposed amendments to local and state court civil rules. He earned his B.A. degree, summa cum laude, from St. John's University and his J.D. degree, cum laude , from the University of Minnesota School of Law.

GREG CLARK is a member of the law firm of Foster Pepper PLLC, where his areas practice focuses on construction, condominium and commercial real estate litigation. He represents public and private developers, owners, landlords, and contractors, in contract, construction defect, warranty, lien, delay, real estate, lease, product, mold and other toxic tort claims and provides clients with risk management, contract drafting and negotiation. He has successfully litigated, arbitrated, tried and mediated numerous multi-million dollar disputes. Mr. Clark spent two decades as a contractor and risk manager. He is also involved with real estate and construction related legislative efforts. Mr. Clark was a presenter at "Construction Contracting Issues in Tough Times," WSAMA 2010 Spring Conference , Vancouver, WA, 2010. He earned his B.S. degree from California State University, Hayward and his J.D. degree, Seattle University, School of Law.

ALFRED E. DONOHUE is an attorney in the Seattle law firm of Wilson Smith Cochran Dickerson, where he focuses on construction defect litigation, personal injury litigation and insurance policy interpretation. He also has background and experience in employment law and real estate matters. Prior to joining the firm, Mr. Donohue was an attorney with Forsberg & Umlauf, P.S., and served as a law clerk to the Honorable William W. Baker on the Washington State Court of Appeals. He is a member of the Washington State and King County bar associations, and the Washington Defense Trial Lawyers. Mr. Donohue earned his B.A. degree from the University of Washington and his J.D. degree from the University of Washington School of Law.

BRUCE WINCHELL is a shareholder in the Seattle law firm of Mills Meyers Swartling, where he practices in the areas of business litigation, insurance coverage litigation and professional liability litigation. Mr. Winchell primarily represents policyholders in insurance coverage disputes. He has lectured for various professional groups on litigation and insurance coverage issues. Mr. Winchell is a member of the Washington State Bar Association (former chair of the Litigation Section) and the Washington Society of Certified Public Accountants. Mr. Winchell earned his B.A. degree from Southern Illinois University and his J.D. degree from the University of Washington.

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