Is Your Contractor Insured?
- Michael P. Cross
When you hire a contractor to perform work on your home or business, the contractor will often present a certificate of insurance coverage, assuring the customer that the contractor is insured and giving the impression that the customer could make a claim to that insurance company if something were to go wrong with the project. The insurance policy is known as a "commercial general liability" ("CGL") policy. But does this policy provide coverage for the contractor's faulty workmanship? Often, the answer is "no."
The Colorado Court of Appeals recently ruled that a standard CGL policy only provides insurance coverage for bodily injury caused by the contractor's work or property damage to something other than the insured's work product. Accordingly, the general rule is that a CGL policy purchased by a contractor does not cover damage to the contractor's work product. For example, if a contractor is hired to construct a $50,000.00 addition to a home, and a wall falls down and injures a resident, the CGL policy would provide coverage. However, if the contractor's work is faulty and the addition needs substantial repair and reconstruction, it is likely that the CGL policy will not provide coverage for these losses.
A few of our clients have found themselves in a situation where a contractor's work requires substantial and expensive repairs, yet the insurer denies coverage for the claim. Therefore, the only recourse was to pursue the contractor. Due to the state of the construction industry, many contractors have become insolvent, and instead of providing compensation for the damage the contractor will shut down the business and open a new company under a different name.
As a result, there is a greater burden on the person or business hiring the contractor to conduct research into the contractor's background. Positive attributes of a contractor include: (1) the contractor has been in business for a substantial period of time; (2) the contractor is a member of an organization such as the Associated General Contractors of Colorado or American Subcontractors Association of Colorado; (3) the absence of complaints against the contractor with the Better Business Bureau; and (4) a positive recommendation from a friend or colleague based on past performance. Conducting this research prior to hiring the contractor will increase the likelihood that the contractor you hire will deliver a quality product or provide an avenue for relief if you need to seek compensation.
What You Post Can Hurt You
- Nicole Quintana
In 2010, almost half of the American population ages 12 and older maintained a profile on a social media website. Social media websites, such as Facebook, MySpace, and YouTube, have become invaluable tools to stay connected with family, reconnect with old friends, keep informed of Presidential or Congressional action, or simply to catch a quick clip of entertainment. People post their relationship status, photographs of their family activities or vacations, comments venting about personal frustrations, and wall-to -wall conversations with friends.
However, social media websites have also become a haven of information for attorneys looking to prosecute or defend a lawsuit. Even more, insurance agents and adjusters are admitting that these sites are now their first stop in investigating applications and claims. Both attorneys and adjusters are seeking information off social media accounts and personal blogs in order to minimize damages related to a claim or in order to establish fraud.
In particular, information gained from these sites allows attorneys and adjusters to compare the injuries claimed by individuals and employees with the reality of what may be posted on these sites. In many circumstances, the statements or admissions online contradict statements made in insurance applications or lawsuits. For instance, someone may claim on an application that he or she lives a conservative lifestyle or may claim in a lawsuit to suffer from significant back injuries when his or her Facebook page shows photographs or video clips of scuba diving or mountain climbing excursions.
Most of these sites allow users to set particular privacy settings, such as "friends" or "friends of friends," in order to prevent just anyone from viewing the information or photographs posted. These privacy settings do not, however, protect a user in all circumstances. For instance, others can "tag" photos with a person's name that will turn up in a search, or statements may be obtained from a friends "wall" that is not privacy protected. Most importantly, courts are now beginning to permit parties to obtain information off these sites for use in lawsuits.
According to a California court, the Stored Communications Act, enacted in 1986, generally prevents social media websites, which qualify as electronic communication services ("ECS") or remote computing services ("RCS") under the Act, from disclosing information in response to a subpoena, unless the subpoena relates to a criminal case. However, courts in civil actions are now requiring parties to execute consent forms that are served along with subpoenas so that the ECS/RCS provider cannot refuse to turn over the requested information.
The greater the privacy protections, the greater the likelihood a court will prevent access to the information contained on an individual's account; however, users must be cognizant of how these websites work, who is searching for information on them, and the repercussions of posting certain types of information and photographs. Above all, the next time you fill out an insurance application or become involved in litigation, beware that what you post can hurt you.
Getting the Right Result: Trial and Perseverance
- Thomas Neville
Trial is the act of testing, trying, or putting to the proof. In medieval times, conflicts could be resolved via trial by combat or trial by ordeal. In a trial by combat, the parties (or their representatives) would fight a judicially sanctioned duel. The winner of the duel was also the winner of the dispute. In a trial by ordeal, the subject was made to endure some physical test (such as removing a rock from a pot of boiling water). An impartial observer would then examine the subject to determine whether God had protected him or her from injury.
As a society, we have thankfully left these concepts to history. We now try cases based on fact and law. Trial is the ultimate goal if resolution of disputes cannot be achieved earlier by settlement. In today's world, however, the quest for trial is difficult and the process is frustrating.
Five years ago, we lost a case during the preliminary stages of litigation. It was a good case. Our client was a young woman, paralyzed by a drunk driver in 1999. His insurance company had a legal obligation to reach out to her to protect him, and to help her deal with an ever-growing pile of hospital bills. The insurance company did nothing for over 18 months. In the end, the driver took matters into his own hands, and settled his case with the woman he had hurt. He was a teenager, and he did not own anything of value, but his insurer had abandoned him. The settlement involved a large judgment against him, which he "paid" by giving our client his right to sue his insurance company. In exchange, our client promised not to execute on the judgment, which would have destroyed his future. This kind of deal (or one very much like it) had been approved by our Supreme Court in 1975.
Five years ago, due to a little known case, a district court judge decided that the settlement in this case was invalid. Though he was uncomfortable with the idea, he let the insurance company off the hook before we ever got to try the case. We appealed that ruling to the Colorado Court of Appeals. Despite newer case law that supported our position, the appeals court affirmed the trial court. Last year, we took the case to the Supreme Court of Colorado. I will never forget how honored I felt to be arguing our client's case to that Court. At the end of last November, we got the Supreme Court's ruling. We won.
While the past five years have been an ordeal for our client, perseverance paid off. She will now be allowed to have her day in court with a trial to a jury of her peers. Our justice system is not perfect. It can be slow. It can be unfair. It can even be wrong. But unlike the medieval justice system, it does allow for second chances. And it can, and does, eventually get the right result.
We are trial lawyers. We represent both plaintiffs and defendants in civil cases. We have tried hundreds of cases in jurisdictions all over the country in state and federal courts. The courtroom is our natural habitat, but we will not take you there unless your case should be tried. If there is a better remedy, whether mediation, negotiation, arbitration or some other form of alternative dispute resolution, we will let you know. Please call us today at (303) 861-7472.
News