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, Phone ( ) Fax ( )

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 East Main Street Richmond, VA (804) (phone) (804) (fax)