Another waiver of subrogation claim decision..this time in Nebraska

The Nebraska Supreme Court held in Lexington Ins. Co. v. Entrex Communication Services, Inc., 749 N.W.2d 124 (Neb. 2008), that a waiver of subrogation provision in a construction contract will bar claims of gross negligence. The court further held that the waiver applied to not only the property included within the Project/work, but other non-work related property.

How to Fight Back When a Contractor Believes Dishonesty is Involved, Come out Swinging!

I praise the article written by Steve J. Koprince, Esq., an attorney in Virginia citing to the decision of DSC Logistics, Inc. v. Innovative Movements, Inc. 2004 WL 421977 (N.D.Ill. 2004), where he cited the judge's decision to allow a defamation, commercial disparagement and interference with contractual and business relations stand after Innovative Movements made some negative statements about DSC to Solo Cup.

What I think is really pertinent to all contractors is IMI's use of e-mail to disparage DSC. As Kelly Campbell of Spencer Fane has illustrated to our clients over and over again is that e-mail messages are discoverable. The types of statements uttered by IMI most likely would not have been known even a few years ago as they would have been verbal and virtually unprovable in a court of law. But with world's decision to communicate almost exclusively via e-mail, an unlimited depository of evidence is now available to all litigators!

Time to train your sales folks!

Issues with destroying evidence in a construction lawsuit

What does this case mean? Missouri courts do not like it when folks destroy evidence....but stay tuned...the justices will not put up with this for long!

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Court declines to recognize cause of action for third-party intentional spoliation of evidence in Missouri, but sets forth the elements that would be required if such were recognized. Brian Fisher, Plaintiff/Appellant v. Bauer Corporation, Defendant, and Adzick Construction Co., LLC, Defendant/Respondent, No. 89432 (Mo. App. E.D., December 4, 2007), Crane, P.J.

 

While working on a construction site as a subcontractor, plaintiff fell from a ladder he borrowed from the general contractor. He filed suit against the general contractor and the manufacturer of the ladder for his injuries. Plaintiff's petition also included a claim against the general contractor, seeking damages for the general's alleged destruction or loss of the ladder, which plaintiff claimed was vital to his cause of action against the manufacturer of the ladder. General contractor filed a motion to dismiss, asserting that Missouri law does not recognize intentional or negligent spoliation of evidence as a separate tort claim. The trial court dismissed, and the plaintiff appealed.

Held

The appeals court noted that, in Brown v. Hamid, 856 S.W.2d 51 (Mo. banc 1993), the Missouri Supreme Court declined to recognize a new tort of intentional spoliation in Missouri. The court of appeals also noted that in the few jurisdictions which have recognized such a tort, the elements required in each of those jurisdictions are: (1) a pending or potential civil lawsuit; (2) knowledge on the part of the spoliator that the litigation is pending or probable; (3) intentional destruction of evidence; (4) intent of the spoliator to interfere with or disrupt or defeat the potential lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the elements of the lawsuit, and (6) damages.

In this case, plaintiff failed to plead that the destruction of the ladder was intentional; he merely pleaded that general contractor caused the ladder to be lost or destroyed with the intent to disrupt his claims. The court opined: This conclusory allegation is insufficient. . . . Plaintiff has not alleged sufficient facts from which the intentional destruction of evidence can be inferred. The failure to plead any one element is fatal. Because plaintiff has not alleged facts supporting each of the essential elements of a potential tort for third-party intentional spoliation, we do not reach the question of whether such a tort should be recognized in Missouri.

: Trial court's dismissal of "spoliation" tort affirmed.

Arbitration Agreements

The U.S. Supreme Court in Equal Employment Opportunity Commission v. Waffle House, Inc. (534 U.S. 279 (2002) appears to have ruled employees must arbitrate their claims as opposed to seeking relief elsewhere when so written into an agreement. While this case may be very fact driven, it would seem the high court supports the use of contractual arbitration provisions, suggesting such provisions can be an appealing device for employers to use to deal with employee's complaints.

So is it time to review all employment agreements?