Dallas Bar Association
HEADNOTES
Focus Real Property/Construction Law
August 2014 Volume 39 Number 8
Inspiring Women VII
The DBA hosted the seventh annual “Inspiring Women” luncheon on Wednesday, July 16. More than 550 members of the Dallas legal community came to hear inspiring stories from a panel of esteemed women lawyers who related humorous and honest insights into professionalism and how they have reached the pinnacles in their careers. Those participating in the panel included (Back row, left to right) Beverly Bell Godbey, Gardere Wynne Sewell LLP; Judge Irma C. Ramirez, U.S. Magistrate Judge, Northern District of Texas; Judge Brenda Rhoades, U.S. Bankruptcy Chief Judge, Eastern District of Texas; Marilea Lewis, Godwin Lewis. (Front row, left to right) Karen Gren Scholer, Carter Scholer Arnett Hamada & Mockler, PLLC; Elizabeth Dane, ORIX USA Corporation; and Jill Lewis, FleetPride, Inc.
DBA Wins State Bar Awards
The DBA received several awards at the State Bar of Texas Annual Meeting in June, including the Award of Merit for best overall programs, Outstanding Partnership Award and two Star of Achievements. Headnotes was recognized in all publications categories, including Best Overall Newsletter. (Left to right) DBA Executive Director Cathy Maher, SBOT President Lisa Tatum and DBA President Scott McElhaney.
Focus
Real Property & Construction Law
A Construction Defect Damages Your Client’s Property, Now What? by David Fisk and Anne Cook
A construction defect can mean any issue relating to the design, construction, or repair of a structure, including any physical damage to the structure caused by the defect. Even with insurance in place an owner can have a significant uninsured loss and may need assistance in understanding the claim process and initial steps to take after damage from a construction defect is discovered. First, the owner should immediately notify its property insurer of the loss. Once notified, a property insurer typically will conduct an investigation into the cause of the damage to determine, among other things, if there is a third-party responsible for causing the damage. Immediate notification of the loss helps protect the insurer’s subrogation interest—the insurer’s right, once a payment has been made under a policy, to seek recovery of damages from a thirdparty. The owner also may have an interest in protecting its right to recover the uninsured loss from the responsible party. To lessen the impact of the loss and prevent further damage, most owners want to begin repairs immediately. However, preserving evidence is of critical importance after
Inside 3 Avoiding Subcontractor Lien Liability 5 Construction Indemnification & the Anti-Indemnification Statute 9 Fifth Circuit’s Lodestar to Maximize Title Insurance Coverage
a defect is discovered. The owner needs to balance the duty of exercising reasonable care to minimize damages with the importance of not performing repairs that destroy evidence of the construction defect. Unless there is an imminent threat to health or safety, or immediate repair work is necessary to prevent further damage, the best course of action is to hold off making repairs until all interested parties have been given notice and the opportunity to inspect the property. Within a few days after receiving notice of the loss, a property insurer normally will conduct a preliminary investigation into the cause of a loss. Owners with high deductibles or large self-insured retentions may want to be more involved in the investigation and retention of qualified experts. If the preliminary investigation indicates a third-party may have caused or contributed to cause the loss, the property insurer will typically notify that party and give them the opportunity to participate in the investigation or observe the condition of the property. The process of identifying and notifying the interested parties can take time, but the owner can speed up the process continued on page 6
The 2014 DBA Membership Directory is now available in print & online. Check out the directory and legal resource guide used by Dallas attorneys! To view the Online Directory and Legal Resource & Expert Witness Guide, go to www.dallasbar.org/pictorial and login. To request a copy of the new directory, contact pictorial@dallasbar.org.