1. 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, 23218 Phone (804.775.3100) Fax (804.775.3800) www.lawmh.com

2. Defending Against Suit

3. 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!

4. Who Will File Suit?  Customers/Clients  Subcontractors  Property Owner/General Contractor  Other third parties (employees, consumers, etc.)

5. Review Identified Causes of Action  Contract  Tort  Fraud  Warranty/Strict Liability

6.  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”

7.  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”

8.  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

9. Bringing Suit or Enforcing Your Rights

10. Analyze Remedies/Claims  Mechanic’s Lien  Contract  Quantum Meruit  Indemnity/Contribution  Tort  Surety Bond  Fraud

11. 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.

12. Damages Analysis (Plaintiff or Defendant)

13. 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

14. Questions?

15. Thank you! Patricia A.C. McCullagh, Esq. McCandlish Holton, P.C. 1111 East Main Street Richmond, VA 23219 http://www.lawmh.com (804) 775-3100 (phone) (804) 775-3800 (fax)