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Thompson, Coe, Cousins & Irons, LLP

Alison Moore's Accomplishments Cited in the Dallas Morning News
Thompson Coe wishes to thank well-noted columnist, Robert Miller, who printed the following in his December 26, 2006 column. Congratulations are extended to Alison Moore, a partner in the firm's Professional Liability practice group, and Bill Huff, former Iowa Insurance Commissioner and Thompson Coe attorney, who is now working in the corporate arena.

"Arthritis Foundation

"The North Texas region of the Arthritis Foundation elected Alison Moore, a partner at Thompson, Coe, Cousins & Irons LLP, chairwoman of its board at the organization's annual meeting Dec. 13.

"Other officers include vice chairwoman Margaret Jackson of MOH Consulting; secretary Nancy Duncan, community volunteer; assistant secretary Amy Harris of Dunn & Brown Contemporary; treasurer Laura Reed of Carol Reed & Associates; and assistant treasurer Barkley Miller of Law Offices of Barkley T. Miller.

"Board members elected to serve three-year terms include Susan Aldridge, Melissa Auberty, Kathleen Bauer, Steve Bivens, Steve Carter, Melissa Cox, Ms. Moore, Rodney Phelps, Dr. Andreas Reimold, April Spicer and Alayne Sprague.

"The Arthritis Foundation presented its Volunteer of the Year award to Ms. Moore. Bill Huff was named a Lifetime Board Member, and Dr. Stanley Cohen received the group's Howard C. Coggeshall Lifetime Achievement Service Award for his longtime support of the Arthritis Foundation and its programs. The outgoing board chairman was Don Goldman."
Robert Miller writes about people and events of interest to the business community for The Dallas Morning News.

03-31-2007

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Tharpe & Howell

BAY AREA RESIDENTS AT INCREASED RISK FOR LANDSLIDES
In addition to earthquakes, San Francisco Bay Area residents have an increased risk for landslides.

An article posted by claimsguides.com states: "Although well aware of the region's earthquake threat, many San Francisco Bay Area residents are uninformed about another dangerous geologic hazard: landslides triggered by heavy rainfall. According to the U.S. Geological Survey, the combination of steep slopes, weak rocks, and intense winter rainstorms make the Bay Area uplands an ideal setting for landslides.

USGS recently released a documentary film 'Riding the Storm,' produced by former USGS Geologist Karen Adams, telling the dramatic stories of some of the region's most significant landslide events and explores the science behind the hazard with USGS researchers Raymond Wilson and Ray Wells.

In January 1982 a single, catastrophic rainstorm triggered 18,000 landslides throughout the San Francisco Bay Area. The most destructive of these landslides was in the Love Creek area of the Santa Cruz Mountains, where a 1000-foot slab of heavily wooded hillslope crashed down without warning on sleeping residents of Love Creek Heights. Ten of the Love Creek residents were buried by the slide, USGS said.

During the drenching winter of 1997-1998, the strongest El Niño of the 20th century triggered a range of landslides in the Bay Area from deadly debris flows to destructive deep-seated slides. One of the El Niño-driven slides underlies an entire neighborhood in the La Honda area and destroyed 8 homes by the end of 1998. The slide reactivated in 2005 and is still on the move, displacing a county road and threatening two more homes, USGS indicated.

While earthquake prediction is still a long way off, rainfall conditions necessary to trigger landslides can be forecast and monitored with modern weather technology. In the Bay Area, landslides are triggered when hillslopes become saturated with rainwater. Therefore, anything a resident can do to keep a hillslope well drained – gutters, storm drains, and the like – will help protect against landslides. Maps of areas most susceptible to landslides in each of the Bay Area counties can be obtained from the USGS. If you live in a landslide-prone area, consider evacuating for the few hours that a storm is at its height.

03-31-2007

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Tharpe & Howell

NEVADA CONSTRUCTION DEFECT LITIGATION - DRIVING DOWN PLAINTIFFS' EXPECTATIONS
Members of the Firm’s Real Estate and Construction Law Practice Group recently participated in a panel discussion held by the Construction Defect Claims Managers Association regarding the defense of construction defect lawsuits in Nevada. As many of our clients and colleagues are exposed to these types of claims, the within summary of the panel discussion is provided followed by our comments and recommendations.

The primary topic of the panel discussion was N.R.S. Chapter 40, with an emphasis on taking advantage of the provisions in the Statute that encourage early offers to settle. Specifically, that a “reasonable” written offer that is rejected by a plaintiff made in Chapter 40 pre-litigation proceedings will bar recovery of plaintiff’s attorney fees, pre-judgment interest, or both.

While Chapter 40 contemplates resolution through monetary settlement or performing repairs, it was agreed that the best approach is via monetary settlement. This is because a party can obtain a release in exchange for a monetary settlement while no release can be demanded when repairs are performed. Further, there is concern that performing repairs may rewind the clock on warranties and statutes of limitations.

One of the obstacles is the short time-frame the statue provides from the date the notice is filed to the date the offer must be made, 180 days. During this time, the developer/general contractor is required to perfect his own insurance coverage; obtain and organize experts including facilitating their investigation and developing a scope and cost of repair; conduct an investigation into the claims and defenses; and identify, find, and provide notice to the potentially responsible subcontractors and get them up to speed.

The Panel also discussed the use of tolling agreements, however agreed it is uncertain how effective they are. Further, concern was expressed about whether a developer/general contractor entering into such a tolling agreement without the approval of a subcontractor will act as a waiver of indemnity rights, if any, of Chapter 40 damages from the subcontractor. The alternative is a “pay and chase” scenario which most parties and insurers tend to avoid.

Another important element of a Chapter 40 pre-litigation offer to compromise is its “reasonableness.” Specifically, in order to bar plaintiff’s recovery of fees, costs and interest, the offer must be adjudicated to have been reasonable. The statue does not provide guidance as to what constitutes a “reasonable” offer or how it is to be adjudicated. Some courts feel it is a post-judgment decision of the trial Judge, while others have deferred the issue to a jury.

The Panel attempted to provide a reality check about Nevada Construction Defect litigation. They described Nevada’s system of handling these cases as “broken” and getting worse. In Nevada, litigation expenses in the form of attorney fees, expert fees, special master fees, mediator fees and associated costs far exceed the total indemnity dollars spent to settle cases or pay judgments. Any effect caused by the advancement of two of the “dirt court” Judges to the Supreme Court is unclear.

There was discussion regarding the Sheuette v. Beazer case and the rulings that came out of it. For example, the court ruled that the pre-judgment interest provision of Chapter 40 commences when the home was built, and not when the claim was made or the suit was filed. It also provides for pre-judgment interest on the attorney fees, including on contingent fees. The panel discussed concerns about “last man standing” issues and the potential of a relatively minor subcontractor getting saddled with the entire attorney fee and cost burden.

There was discussion about the Albios case. In that case, a verdict for the plaintiff in the amount of $100,000 resulted in a post-judgment Chapter 40 award of approximately $700,000, or 700% than the verdict itself! This alone was sufficient for the Panel to recommend making settlement offers early in order to trump the Chapter 40 entitlements. With respect to joint offers, it was pointed out that although they can be made, they should be carefully worded so that the offer can be directly compared and contrasted with any subsequent judgment.

The next part of the meeting focused on proposals to manage Nevada Construction Defect Litigation more effectively. The Panel addressed the failure of mediated settlement discussions due to lack of party preparation. This resulted in a proposal for a shortened litigation track with mandated litigation bench-marks with mediation limited to three sessions per case. However, the Panel agreed there is little chance this system will be adopted - so it will not be discussed into detail in this report.

The last part of the meeting focused on dealing with WRAP and OCIP policies. While the Panel members had some experience in this area, it was relatively minimal. In general, the concerns over these policies appear to be focused on the minimal amount of aggregate coverage the policies provide and the various conflicts between the parties and counsel in litigation.

Concern was also expressed about developers/general contractors exhausting what is typically a limited aggregate policy limit through settlement and litigation expenses, thus leaving the subcontractors without coverage under the WRAP policy. Further, if the subcontractor’s coverage has a WRAP exclusion, then the subcontractors would have no insurance coverage whatsoever.

Another concern is that most WRAP policies have burning limits, in that the legal expenses are deducted from the aggregate limits. This creates a problem if a case is heavily litigated between the developer/general contractor. The problem is greatly exaggerated if conflicts develop between the developer/general contractor and the subcontractors that require multiple attorneys that must be paid out of the WRAP policy.

Further, most, if not all WRAP addendums provide conflict waivers and for a defense by a single counsel and set of experts, but are silent on a defense strategy, i.e., defense of issues versus defense of parties. If a specific construction issue is defended in a certain manner, this may directly conflict with the defense of a particular party which when combined with the potential of no coverage is very problematic.

Another concern is that the typical WRAP addendums, as well as contracts between the developer/general contractors and the subcontractors, contain express indemnity obligations in favor of the developer/general contractor. This requires the subcontractor to personally indemnify the developer for all sums that fall within the scope of the indemnity agreement that are not covered by the WRAP policy, which subjects the subcontractor to personal exposure assuming the subcontractor has no other applicable insurance. Further, there is always the potential for inconsistent or even conflicting express indemnity obligations between those contained in the WRAP addendum and in the construction contract.

03-31-2007

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Tharpe & Howell

NEVADA SUPREME COURT REVISES SUMMARY JUDGMENT STANDARD
The case of Wood v. Safeway, Inc., 121 Nev. Adv. Rep. 73 (2005); 121 P.3d 1026 (Nev. 2005), involved a mentally handicapped Safeway employee who was sexually assaulted at work. The perpetrator was a nighttime employee of a janitorial company that provided services to the store. A lawsuit was filed against Safeway and the janitorial company. The District Court granted summary judgment to Safeway, as it was immune from suit based on The Nevada Industrial Insurance Act. The janitorial company was also granted summary judgment as Nevada statutory law precluded liability of an employer for an intentional tort committed by its employee when such an act is determined to be a superseding cause.

In affirming the granting of summary judgment, the Nevada Supreme Court rejected the “slightest doubt” standard, found in prior Nevada summary judgment jurisprudence. The “slightest doubt” standard became a part of Nevada’s summary judgment analysis in 1954, when it quoted from a 2nd Circuit Court of Appeals case. Nevada common law then embraced two lines of summary judgment jurisprudence, one of which was the “slightest doubt” standard, while the other was the more modern federal standard summarized as follows:

“[A] genuine issue of material fact exists [precluding summary judgment] where the evidence is such that a reasonable jury could return a verdict for the non-moving party.” Id. at 1038. (citation omitted).

The existence of both standards caused confusion, for which the Supreme Court was criticized. Since 1954, various other jurisdictions throughout the country have been critical of the slightest doubt standard for unduly limiting the use of summary judgment. The Wood Court looked to two United States Supreme Court cases from 1986 that undermined the slightest doubt standard. The Court also looked at other Nevada Supreme Court cases that seemingly rejected the standard.

The Wood Court stated:

"We take this opportunity to put to rest any questions regarding the continued viability of the "slightest doubt" standard. We now adopt the standard employed in [two US Supreme Court cases]. Summary judgment is appropriate under NRCP 56 when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that are properly before the court demonstrate that no genuine issue of material fact exists, and the moving party is entitled to judgment as a matter of law. The substantive law controls which factual disputes are material and will preclude summary judgment; other factual disputes are irrelevant. A factual dispute is genuine when the evidence is such that a rational trier of fact could return a verdict for the nonmoving party.

While the pleadings and other proof must be construed in a light most favorable to the nonmoving party, that party bears the burden to ‘do more than simply show that there is some metaphysical doubt’ as to the operative facts in order to avoid summary judgment being entered in the moving party's favor. The nonmoving party ‘must, by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine issue for trial or have summary judgment entered against him.’ The nonmoving party ‘is not entitled to build a case on the gossamer threads of whimsy, speculation, and conjecture.’ To the extent that [plaintiff] relies on the ‘slightest doubt’ standard, our discussion above abrogates that standard from Nevada’s summary judgment law and renders her arguments irrelevant." Id. at 1031. (internal citations omitted, emphasis added)

The Court reviewed the facts and applicable law vis a vis each defendant, and determined that summary judgment was warranted as no genuine issues of fact remained that could affect plaintiff’s recovery. Thus, the District Court’s decision was upheld.

The strong language laid out in the Wood case should be a cue to the Nevada District Courts that summary judgment should be granted not only in the most extreme cases, but should be considered, “an integral part of the [Rules of Civil Procedure] as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.” Id. at 1030. The general reluctance of the courts to grant summary judgment in lieu of allowing a trial on the merits should be balanced with the intent of the Supreme Court in clarifying the appropriate standard.

03-31-2007

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Kamlet Shepherd & Reichert, LLP.

Five Kamlet Shepherd Attorneys Named Outstanding in Colorado Poll
Five Kamlet Shepherd & Reichert attorneys were named this month as 2007 Super Lawyers in Colorado by Law & Politics, an award winning magazine based in Washington, D.C. Jay F. Kamlet and Willie E. Shepherd, co-founders; E. Lee Reichert; Fredric M. Winocur; and Stephen D. Gurr, partners, were recognized as top lawyers in Colorado.

More than 13,000 active lawyers in Colorado were balloted. Those lawyers nominated and voted on the state’s best attorneys who “they have personally observed in action.” A blue ribbon panel of lawyers in more than 55 practice areas within the state monitored and participated in the selection process.

Super Lawyers are comprised of the top five percent of attorneys in each state. In addition to the Kamlet Shepherd partners, other top Colorado lawyers who were recognized include prosecutors, in-house counsel and public service lawyers.

Kamlet Shepherd partners have achieved this recognition two years in a row.

“This is a testament to our commitment to hiring highly skilled and experienced lawyers,” said Shepherd, chair of Kamlet Shepherd. “We strongly believe in bringing aboard the very best attorneys with sophisticated knowledge and expertise in our firm’s core practice areas.”

Kamlet heads a practice group focusing on real estate transactions and finance while Shepherd is head of the practice group concentrating on the areas of environmental and natural resources.

As the head of the firm’s litigation group, Gurr’s practice consists of complex commercial litigation.

Reichert is head of the corporate and securities group and is involved with a full range of corporate and commercial law for a wide variety of companies, ranging from Fortune 500 companies to emerging growth companies.

Winocur specializes in the defense of white-collar and economic crimes for both corporate and individual clients. His practice combines white-collar defense and criminal defense, where he has developed a niche practice defending high profile individuals throughout the state. A complete listing of Colorado Super Lawyers appears in a special section in the April 2007 edition of 5280 magazine.

03-31-2007

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Honigman Miller Schwartz and Cohn LLP Attorneys and Counselors

Honigman To Open Ann Arbor Office In May - Historic Allmendinger Building Will House Firm's Attorneys
Honigman Miller Schwartz and Cohn LLP, a premier Michigan-based business law firm, and First Martin, an Ann Arbor-based commercial real estate development and management firm, announced today that Honigman has signed a lease for space on the fourth floor of the historic Allmendinger Building, at 130 South First St. in downtown Ann Arbor. Renovation work will begin immediately with occupation scheduled for early May.

“Honigman is committed to Ann Arbor and being located in the heart of the city was important to our business,” said David Parsigian, partner in Honigman’s Corporate and Securities Practice and managing partner of the firm’s Ann Arbor office. “The historic Allmendinger Building is a fantastic location for servicing clients in Ann Arbor and beyond. Our corporate, private equity and venture capital, mergers and acquisitions, real estate, tax, intellectual property, litigation, labor and employment, and other business-related services ideally position Honigman to help clients grow with the Ann Arbor economy.”

The Allmendinger Building was originally constructed in the late 1800s to house the Allmendinger Piano and Organ Factory. First Martin Corporation renovated the building in 1986 preserving many of the structure's original features including exposed brick walls and wood columns, beams and joists. Glass is used throughout the building to open and expose the building's historic charm. Displayed in the building's lobby entrance are some of the original organs and pianos constructed at the building.

“First Martin is pleased to add a distinguished law firm such as Honigman to the group of excellent tenants in this building,” said Bob Gates, a Vice President of First Martin.

03-31-2007

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Chamberlain, Hrdlicka, White, Williams & Martin, P.C.

Seven Chamberlain Hrdlicka Houston Lawyers Named "Rising Stars"
Seven Chamberlain Hrdlicka Houston lawyers recently were named Rising Stars by Texas Monthly Magazine’s "Super Lawyers 2007.” Julia Calnek, Jaremi Chilton, Jonathan DePriest, Norman Giles, Charles Jeremiah, Juan Vasquez and Montere Wuensche received the honor.

03-31-2007

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