Multi-Party Construction Defect Litigation Managing Discovery, Allocating Liability and Damages, Avoiding Ethical Pitfalls Today’s faculty features: 1pm Eastern | 12pm Central | 11am Mountain | 10am Pacific The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10. TUESDAY, MARCH 6, 2012 Presenting a live 90-minute webinar with interactive Q&A Eric A. Grasberger, Partner, The Development Law Group, Construction & Design Section, Stoel Rives, Portland, Ore. R. Douglas Rees, Shareholder, Cooper & Scully, Dallas Russell Clinage, Goins Underkofler Crawford & Langdon, Dallas
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Multi-Party Construction Defect Litigation Managing Discovery, Allocating Liability and Damages, Avoiding Ethical Pitfalls
The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions emailed to registrants for additional information. If you have any questions, please contact Customer Service at 1-800-926-7926 ext. 10.
TUESDAY, MARCH 6, 2012
Presenting a live 90-minute webinar with interactive Q&A
Eric A. Grasberger, Partner, The Development Law Group, Construction & Design Section, Stoel Rives, Portland, Ore. R. Douglas Rees, Shareholder, Cooper & Scully, Dallas
Russell Clinage, Goins Underkofler Crawford & Langdon, Dallas
71313593.1 0099865-10006
AGREEMENT REGARDING SITE VISIT
(1) Waiver and Release
The undersigned hereby fully releases and waives all claims against [OWNERS] and each oftheir respective owners, principals, partners, affiliate or related entities, directors, employees, agents,consultants, attorneys and insurers (collectively “[Owner]”) for any damages, costs, expenses,injuries (personal injury, death, property damage or otherwise), claims, suits or demands of any kindor nature, including, but not limited to, those for negligence, gross negligence, misrepresentation,breach of contract, breach of warranty or any and all other claims, suits or demands, arising out of orin any way relating to the undersigned’s visit to [PROJECT NAME], [PROJECT ADDRESS] (the“Project”). The undersigned has been advised of the following nonexclusive list of potentiallydangerous conditions: (1) possible water damaged materials including but not limited to molds,fungi and other contaminants; (2) structurally unsupported, unsound and inoperable windows andsliding glass doors and related framing; (3) loose wood flooring; (4) potential general structuralinstability; and (5) the inherent risks associated with property undergoing construction defectinvestigation and repair work. The undersigned represents and warrants that he or she (a) assumesfull responsibility for his or her own safety and health and for all known and unknown risks anddamages in visiting the Project, and (b) has not relied on information given or not given to him or herby [OWNER] regarding the risks or dangers present at the Project.
(2) Prohibition on Substantive Discussions
The undersigned further agrees not to discuss the merits or substance of the defects, thedamages, the repairs, or any actual or potential lawsuit, arbitration or other proceeding, with[OWNER] or any representative of [OWNER] of the Project. To the extent any such prohibiteddiscussions occur, it is agreed that they will not be discoverable or admissible for any purposesin the lawsuit, arbitration or any other proceeding.
The Consultant(s) shall be responsible for implementing and completing the EvidenceGathering Plan as follows:
I. Pictures
A. The areas should be photographed as follows:
i. Interiors and exteriors;ii. Close-up photos and photos from a distance showing large scale sections
or elevations of the structure; andiii. Before and after shots, and shots of all resultant damage.
Each picture (a log of the photographs or displayed picture) shall list:
i. Date taken;ii. Name of photographer; andiii. Location and elevation (i.e., north, south, east or west).
B. Photograph examples of all repair work and procedures, including, but not limitedto, the equipment used, so that the Owner can, if required, fully explain in thefuture exactly what was done to rectify the problems on a step by step basis andjustify the expense, for each step or procedure.
C. As stated in “A” above, numerous examples of each defective condition shall befully photographed, including close-ups. Relatedly, the condition shall bedocumented with a written log with a narrative of what was found.
D. Use photographs and a corresponding written log to identify the number ofinstances each defective or damaged condition occurred so that we can establishthe pervasiveness of the conditions throughout the structure. For example, acomplete review of all sliders (if determined necessary) would result in a chartand matching photo log indicating the total number of sliders inspected and thenumber that showed x, y or z type or degree of defect.
II. Videotaping
A. Videotape each step of the repair method so that the Owner can show and explainwhat was done (the whole operation need not be videotaped, just severalexamples of each step). Videotape shall be used to compliment the photos ofdefective conditions and damaged materials. If instructed, consultant(s) shallprovide narration on the videotape explaining what is being depicted.
Exhibit 2Page 1 of 2
STOEL RIVES LLP ATTORNEY/CLIENT PRIVILEGE Page 2
71313520.1 0099865-10006
III. Physical Samples
A. Preserve samples of resultant damages (i.e., damage wet or rotten materials, etc.).
B. Preserve samples of defective siding, framing and joists (if any is removed),windows, doors, brick masonry and cultured stone, roofing, wood flooringproducts, tile, and sheetrock and store on site in a dry, protected area (such as agarage or storage room).
C. Each sample under “A” or “B” above shall be placed in a thick plastic bag.
D. Samples shall be marked as follows:
i. Date sample was taken;ii. Who took the sample;iii. Identification of the material;iv. Location and elevation (i.e., north, south, east or west);v. From what part of the building (e.g., exterior, interior, floor, wall, etc.).
IV. Consultant shall obtain all other evidence relevant to the defective, damaged ordecayed condition of the structure.
V. ERR ON THE SIDE OF GATHERING TOO MUCH EVIDENCE RATHERTHAN TOO LITTLE.
VI. ENSURE THAT THE OWNERS OR OWNERS’ AGENTS KNOW NOT TODISCARD OR DAMAGE THE EVIDENCE, WHETHER IN STORAGE OROTHERWISE.
VII. STORAGE AREA SHOULD BE LOCKED TO PREVENT THEFT, SABOTAGEOR INJURY.
Exhibit 2Page 2 of 2
Attorney Work Product Project Cost Summary
Div # Item
1000 General Requirements 170,686
Supervision, Clean Up & General Conditions 170,686
2000 Demolition 78,471
Exterior --non-masonry 61,896
Interior--window area related, tracked separately 16,575
3000 Cast in Place Concrete -
None -
4000 Masonry 5,430
Masonry Restoration 5,430
6000 Wood & Plastics 251,511
Rough Carpentry repair/replacement at Exterior & Interior 133,265
Finish Carpentry repair/replacement at Interior 13,410
Scaffolding at exterior 104,835
7000 Thermal & Moisture Protection 357,292
Siding & Trim, Weatherproofing and Caulking 329,720
Rainscreen 21,797
Deck Coatings 5,776
8000 Doors & Windows 236,118
Window/Sliding Glass Door installation & handling 22,614
French doors related 1,590
Storefront (Estimated) 211,913
9000 Finishes 185,206
Gypsum Repair 76,100
Gypsum Repair at Holddowns 24,343
Painting at Exterior 56,022
Painting at Interior 13,464
Painting for Repair at Holddowns 15,277
10000 Signage -
Remove & Replace Existing --in GCs
12000 Furnishings 6,443
Window Treatment 6,443
15000 Plumbing -
None -
16000 Electrical 5,508
Misc Electrical Repairs 5,508
SUBTOTAL 1,296,663
17000 Other 91,150
Safety Plan, Insurance & Profit 91,150
TOTAL 1,387,813
Total Project Costs
Exhibit 3Page 1 of 3
ATTORNEY WORK PRODUCT
BLDG ONE
COST ALLOCATION SUMMARY
Div # Item Notes
1000 General Requirements 170,686 69,117 49,072 3,240 32,124 13,829 3,304
Supervision, Clean Up & General Conditions 170,686 69,117 49,072 3,240 32,124 13,829 3,304 Spread per overall cost of each category
5. Roofing, Weatherproofing and Thermal > notes on allocationsRule # Contractor
XXX
XXX
XXX
XXX
5.5 Rule 5 50 / 50 XXX
5.6 Rule 1 100 / 0 XXX
5.7 Rule 3 30 / 70 XXX
5.8 Rule 3 30 / 70 XXX
5.9 Rule 3 30 / 70 XXX
5.10 Rule 5 50 / 50 XXX
5.11 Rule 5 50 / 50 XXX
5.12 Rule 5 50 / 50 XXX
5.13 Rule 5 50 / 50 XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX
XXX5.13 Rule 5 50 / 50 XXX
5.14 Rule 5 50 / 50 XXX
5.15 Rule 1 20 / 80 XXX
5.16 Rule 6 36 / 64 XXX
XXX
XXX
XXX
XXX
Exhibit 4Page 3 of 4
Section I . Page E
Allocation Key - Rules
Liability percentages have been allocated based on rules, described below. The rule governing the allocation percentage for each line item is stated in the column under the
Notes section of each category.
Rule 1: 100/0
The defect is entirely the fault of either Contractor or Architect (or the subs beneath them) and no discovery or reporting by the other party was either reasonable to expect or, if
reasonable to expect, would not have mitigated or prevented the damage from occurring.
Rule 2: 80/20
The defect itself was committed entirely by the fault of either Contractor or Architect, but the defect should have been noticed and reported (in the exercise of reasonable care) by
the other party and, had it been reported, the damage could have been mitigated or prevented.
Rule 3: 70/30
The defect was committed mostly by the fault of one party but the other party had some (but limited) fault of its own, possibly in combination with the fault of not reporting the
primary party’s defect.
Rule 4: 60/40
Both parties had substantial fault in causing the defect, but one party’s role was marginally greater than the other’s.
Rule 5: 50/50
Either (a) both parties committed defects which jointly led to the damage, i.e., neither party’s defect would have alone caused damage requiring repair or replacement, (b) both
parties committed separate defects which led to roughly equal contributing damage which, when combined, requires the repair or replacement at issue, or (c) both parties
committed defects, either of which alone would have required the repair or replacement at issue.
Rule 6: Composite Allocation
This rule applies to certain general or overhead cost categories under each major defect category (e.g., masonry, structural, site, etc.). The allocation percentages applied under this
rule vary for each major defect category and are derived by calculating the weighted composite percentages from the item by item allocations to Architect and Contractor within