The Subrogation Strategist

In Atlanta Flooring Design Centers, Inc. v. R.G. Williams Construction, Inc., -- S.E.2d --, 2015 WL 4311070 (Ga. App. July 16, 2015), the Georgia Court of Appeals addressed the validity of a contract clause in a construction contract. In the contract, R.G. Williams Construction, Inc. (“Williams"), the general contractor, and Atlanta Flooring Design Centers, Inc. (“AFDC”) agreed to arbitrate any disputes related to the contract. In addition, Williams and AFDC expressly agreed “not to challenge the validity of the arbitration or the award.” The court, relying in part on analogous federal arbitration law, held that the clause – precluding judicial review of an arbitration award – altered Georgia’s statutory arbitration scheme, frustrated Georgia’s public policy and was void and unenforceable.Continue Reading

In Board of Commissioners of County of Jefferson v. Teton Corp., 30 N.E.3d 711 (Ind. 2015), Jefferson County hired Teton Corporation to perform renovation work on the Jefferson County courthouse. Teton hired subcontractors to perform the roofing work.

Jefferson County’s contract with Teton incorporated American Institute of Architects (“AIA”) General Conditions form A201-1987. The AIA contract required Jefferson County to obtain property insurance and included a waiver of subrogation clause that stated, in pertinent part:  “The Owner and Contractor waive all rights . . . for damage caused by fire or other perils to the extent covered by property insurance obtained pursuant to this Paragraph 11.3 or other property insurance applicable to the Work.” (Emphasis added). Instead of procuring a separate builder’s risk policy for the renovation work, Jefferson County relied on its existing “all risk” property insurance policy to cover the entire courthouse, including the renovation work.Continue Reading

In July of 2015, the North Carolina legislature amended N.C. Rule of Civil Procedure 26(b)(4), which governs expert discovery. The new rule becomes effective October 1, 2015 and applies to actions commenced on or after that date.

Under the old rule, parties can obtain discovery related to trial experts by issuing expert interrogatories. Parties can also, upon motion, obtain additional discovery, such as deposition testimony and, with respect to such additional discovery, the court may require the party seeking discovery to pay a fair portion of the fees and expenses incurred by the opposing party in obtaining this additional discovery from its expert.Continue Reading