After finishing this course, counsel and claims personnel should possess the tools they will need to navigate commercial and residential construction defect claims. Moreover, this course will provide insight into the procedures and strategies utilized in commercial and residential construction defect claims. Texas allows for non-resident adjuster licensure by reciprocity, so adjusters holding other licenses that adjust Texas claims will understand the similarities and differences between Texas claims and attendees will learn to identify the pertinent issues arising out of construction defect claims.
A. Theories of Liability
This topic covers the main theories of liability and causes of action found in construction defect litigation including Negligence, Breach of Contract, and Breach of Warranty. This section includes the necessary elements for each cause of action as well as the applicable limitations.
This topic covers a party’s contractual right regarding indemnity. Moreover, this topic covers Texas law requirements of fair notice, the express negligence test, what satisfies the conspicuousness requirement, and provides examples of indemnity language that meets the fair notice requirements. Additionally, this section provides a legislative update following the new anti-indemnity statute codified in Texas Insurance Code section 151.101. The anti-indemnity statute is explained in detail and the attendees will learn the statute and its application, exceptions, and exclusions.
C. Responsible Third Party Practice
This topic will teach attendees how to navigate the responsible third party laws in Texas including how to disclose a potential responsible third party, how to designate a responsible third party, and how challengers utilize motions to strike the designation of responsible third parties. In addition, attendees will learn the limitations of the responsible third party practice, what happens if liability is assessed against the responsible third party, and seeking contribution from a responsible third party.
D. Waiver of Consequential Damages
This topic covers the types of damages arising from breach of contract construction defect cases. The attendees will learn the difference between direct and consequential damages, how to categorize different types of damages, and how parties will seek to waive consequential damages in their contract. Further, the attendees will learn how to enforce a waiver of consequential damages in the case where such waiver is advantageous to a litigant’s position.
E. Residential Construction Liability Act
This topic covers the Texas Residential Construction Liability Act (RCLA) and its intended purpose of limiting the application of the Texas Deceptive Trade Practices Act in residential construction cases. The attendees will learn about the RCLA procedures for notice, inspection, and settlement of claims arising from construction defects. Further, the attendees will learn about the limitations on damages provided by RCLA , and the categories of damages available if a reasonable settlement offer is not made.
F. Economic Loss Rule
This topic covers the scope of and the rationale behind the economic loss rule as well as the limits and exceptions applicable to the rule with particular focus on Texas case law. The attendees will learn how the economic loss rule bars recovery for economic damages when the loss is the subject matter of a contract between the parties, or, when the tort claims are based upon pure economic loss.
G. Conflict Resolution
This topic covers the available conflict resolution avenues which are available to parties in litigation or facing litigation. The attendees will learn about arbitration, mediation, and informal collaboration to resolve conflict without the filing of a formal lawsuit.
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