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Finch, Thornton & Baird, LLP partner David W. Smiley.

David W. Smiley

Partner

When other dispute resolution remedies have been exhausted, David’s vast construction and insurance experience are invaluable assets to clients seeking positive outcomes. David practices in California and throughout southwest United States.

(858) 737-3100, Ext. 3032

(858) 737-3101

David Smiley is an experienced construction litigation attorney who works with company owners, presidents, CEOs and COOs of general contractors, large-scale specialty subcontractors, engineering design firms, and other construction industry businesses.  He is highly knowledgeable and skilled in handling construction defect, property damage, personal injury, and payment and collections litigation, as well as construction contract review, negotiations, and insurance coverage matters.  David practices in California and throughout southwestern United States.

CONSTRUCTION DEFECT LITIGATION

While mediation or litigation may be viable options, David first applies his proven negotiating skills, command of alternative dispute resolution approaches, and calming demeanor to every engagement.  Through his ability to collaborate well with other attorneys and insurance representatives, he is ideally suited to lead and manage the multi-party legal teams necessary to succeed in complex state and federal construction litigation.  From oversight of case investigations and insurance funding assessments to legal strategy development and implementation, David consistently achieves outstanding results under the most demanding circumstances.

PROPERTY DAMAGE LITIGATION

Resolving property damage disputes on state and federal construction projects — especially those of the catastrophic variety — present unique challenges to general contractors and specialty subcontractors.  Drawing upon over eighteen years of experience, David provides wisdom and guidance in handling property damage litigation matters.  Leading thorough and deliberate investigations, evaluating and determining responsibility, and working collaboratively with insurers are hallmarks of David’s practice.  It is a formula that consistently produces win-win outcomes for our clients.

PERSONAL INJURY LITIGATION

Given his long history and understanding of insurance company policies and practices, David is adept and well prepared for the unique challenges of third-party personal injury matters.  He has represented general contractors and subcontractors on claims brought both during and after the completion of construction projects with excellent results.  That insurers such as Zurich, AIG, and others have placed David on their approved panels are testament to his successful defense of their insureds.

EXTRA COST, DELAY, AND PAYMENT AND COLLECTION CLAIMS

The legal bureaucracy overlaying payment and collection matters on federal construction projects is complex and ever changing.  With little room for negotiation, many Finch, Thornton & Baird clients look to David to help them navigate these turbulent issues.  He responds by aggressively and methodically pursuing claims for extra costs or extra work, scheduled disruptions, delay, interruption, and more.  Calling upon his wealth of experience and successful prosecution of mechanic’s liens, stop payment notices, Miller Act, and other collection claims, David knows how to get clients paid!

CONSTRUCTION CONTRACTS REVIEW AND NEGOTIATION

It stands to reason that the attorney who so capably litigates claims on behalf of clients is equally well qualified to impart his expertise regarding litigation avoidance and risk management.  With an eye toward identifying the pitfalls of indemnity, insurance, terms of payment, termination, project schedule, and notice provisions, David’s review and negotiation of construction contracts and agreements is a sound investment in risk management.

COURSE-OF-PERFORMANCE COUNSEL

Could partnering with a legal authority who can effectively navigate the statutory framework that surrounds most construction projects enhance your profitability?  Many experienced general contractors and subcontractors believe it can — with good reason.  The litigation and non-litigation strategies that David brings to each engagement are well balanced and serve to expedite a wide range of claims and disputes.  From bid protests and bid substitution requests to contract terminations, David’s active involvement in long-troubled construction projects ensures our clients achieve most favorable results at lower cost.

  • Defense and litigation of construction defect, property damage, personal injury, and products liability disputes
  • Insurance coverage, bad faith, and extra-contractual liability
  • Course-of-performance counsel
  • Public and private works disputes
  • Business disputes
  • Delay, inefficiency, and extra work claims
  • Foreclosure on mechanic’s liens and enforcement of stop payment notices
  • State and local bid protests
  • Subcontractor listing and substitution issues
  • Contract review and negotiation
Subcontractor v. General Contractor

RAIL PROJECT

The firm represented the general contractor in defense of an underground utility subcontractor’s multi-million dollar dispute concerning project delays and contractor’s license issues related to work on a rail project in California. Less than a month before trial, the case settled on favorable terms.

Counsel: P. Randolph Finch Jr., Jason R. Thornton, and David W. Smiley 

Tree Service v. Truck Center

The firm represented a local tree service company client in its claims against a national truck repair company that severely damaged the client’s tree-trimming truck.  The truck repair company denied all liability and blamed the loss on the client.

Firm Obtains Repairs for DAMAGED Tree-Trimming Truck.

The firm took an aggressive approach and sued the truck repair company for the client’s costs of repair, lost profit, and other damage to its business.  This approach resulted in an out-of-court settlement which made the client whole.​

Counsel: David W. Smiley

Charter School v. Project Owner

RAIL PROJECT

The firm defended a general contractor against an indemnity claim brought by a public agency project owner in connection with an inverse condemnation claim.  As a result of the firm’s efforts, the public agency dismissed the firm’s client.

Counsel: P. Randolph Finch Jr. and David W. Smiley

Trade Subcontractor Dismissed From A 15-Home Construction Defect Case In Nevada

The firm represented a decorative stone veneer installation and manufacturing company in a construction defect case arising from a massive housing development project located in Las Vegas, Nevada.  Fifteen homeowner plaintiffs discovered various construction defects in their homes and sued the developer for the costs of repairs and legal fees.  The home developer promptly tendered its defense to the stone installation contractor and other subcontractors — threatening to embroil them in a years-long statutory claims process.

LEGAL INGENUITY PREVAILS IN ACCELERATING A SETTLEMENT.

Using a recently enacted statutory exception, requiring a showing of resultant damage from defects, the firm successfully argued that the client’s decorative stone veneer work on the homes did not cause resultant damage giving rise to an actionable construction defect claim under Nevada law.  Based on this, the firm successfully negotiated the client’s no-cost dismissal from the case.

Counsel: David W. Smiley and Daniel R. Spencer

Electrical Subcontractor Recovers Full Payment On Miller Act Claim

The firm represented an electrical subcontractor in a claim for the balance due for work on a Department of Veterans Affairs project.  The general contractor had run out of funds to pay its subcontractors.

SWIFT ACTION ACHIEVES DESIRED RESULT.

The firm filed suit against the general contractor and its Miller Act payment bond surety for recovery on the subcontract and the bond.  Within 30 days of the firm’s filing of the action, the surety paid the contract balance in full, plus interest and attorneys’ fees.

Counsel: David W. Smiley

HVAC Subcontractor Recovers Payment from General Contractor on Mechanic’s Lien

The firm represented a subcontractor in a claim for recovery on amounts due for work performed on a 49-unit apartment building project.  The firm was brought in after the general contractor refused to issue final payment following completion of the project, claiming numerous unsubstantiated back charges.

The firm filed suit against the contractor and the project’s owner for breach of contract and foreclosure of the client’s mechanic’s lien.  After the firm served the complaint, but before the general contractor and owner’s answer, the general contractor paid the subcontractor’s claim in full.

Counsel: David W. Smiley

Firm Wins Precedent Setting Decision On The Enforceability Of Forum-Selection Clauses In Federal Miller Act Claims

Forum-selection clause enables general contractor to litigate in agreed venue.

The firm’s client was a general contractor who hired a demolition subcontractor in connection with an Army Corps of Engineers project located in Nevada.  The subcontract contained a forum-selection clause, which placed venue for all disputes in the federal and state courts located in Maricopa County, Arizona.  When the subcontractor sued the general contractor and its surety for breach of contract and enforcement of its Miller Act payment bond in the United States District Court for the District of Nevada, the firm successfully enforced the subcontract’s valid forum-selection clause and had the case transferred to the federal district court located in the client’s home forum of Maricopa County, Arizona.

General contractors working on projects in foreign jurisdictions to benefit from precedent setting decision.

In a decision of first impression by a district court in the Ninth Circuit, the Court ruled that a valid forum-selection clause superceded the venue provisions of the Miller Act (40 U.S.C. § 3133(b)(3)(B)), which require Miller Act claims to be filed where the project is located.  The decision in this case is of paramount importance to general contractors who work on projects in foreign jurisdictions.  It also underscores how a properly drafted forum-selection clause can be effectively used to ensure that disputes are efficiently litigated in the contractor’s home jurisdiction.

Counsel: David W. Smiley

Firm Obtains Dismissal Of General Contractor In Design Defect Case

The firm’s client was hired by Caltrans to construct a retaining wall that was built in accordance with Caltrans issued plans and under the full-time continuous inspection of the agency’s resident engineer.  The plans specified the installation of weep holes at the base of the wall to allow for drainage of water in the backfill area behind the wall.  However, the plans failed to provide a design for the delivery of stormwater discharge away from the base of the wall.  This design failure resulted in massive flooding of four adjacent residential properties during rain events.

Scrutiny of investigative documents reveals unforeseen design defect.

In the ensuing negligence action against the firm’s client, the firm obtained key investigative documents from Caltrans showing that the damages were caused by an unforeseen defect with the wall’s design and not by any construction errors and omissions.  There was also evidence that the claims were barred by the three-year statute of limitations applicable to patent defects.  Shortly after the firm provided plaintiffs’ counsel with these key documents and proof that the claims were without merit as time barred, the plaintiffs dismissed the firms’s client with prejudice in exchange for a waiver of costs.

Counsel: David W. Smiley

Firm Defeats Lawsuit By Out-Of-State Vendor

​The Firm represented a California-based general contractor in a dispute with an out-of-state vendor over defective storage tanks.  The vendor filed a pre-emptive lawsuit in their state of business against the general contractor in order to obtain a more favorable venue for the claim.  The Firm defeated the lawsuit on the basis that the out-of-state court did not have jurisdiction over our California-based client.

Counsel: David W. Smiley and Christopher R. Sillari

Complete Defense of Landslide Claim

The Firm successfully represented a general contractor against the claim of an owner of property located next to a highway expansion project.  The owner’s lawsuit alleged that the general contractor’s work on the project had caused a landslide onto its property.

The Firm was able to secure the general contractor’s immediate dismissal from the lawsuit by providing the owner with pre- and post-construction geotechnical studies showing that the landslide was caused by a leak in the storm drain located on an adjoining property.

Counsel: David W. Smiley

Subcontractor v. Subcontractor: Firm Defeats Multi-Million Dollar Indemnity Claim

The firm represented a subcontractor as independent counsel in connection with a multi-million dollar personal injury case filed by one of its employees who was injured on a construction project.  The employee was exempt from workers’ compensation and sued the general contractor and the subcontractor, who created the injury-causing hazard.  The subcontractor responsible for causing the injury cross-claimed against the client for equitable indemnity, claiming that it failed to follow jobsite safety protocols.

The firm and its co-insurance defense counsel successfully defeated the claim by settling with the injured employee for a minor amount, which was approved by a court determination of good faith settlement.  The insurance company for the firm’s client was also disputing liability and coverage under the client’s commercial general liability policy.  The firm successfully convinced the insurer to provide the necessary defense and indemnity benefits to defeat the multi-million dollar indemnity claim.

Counsel: David W. Smiley

David Bahena v. KTA Construction, Inc.

A bicyclist sued the firm’s client for personal injuries from a bicycle accident that occurred in an alley near an open meter box maintained by the City of San Diego. During discovery, it was confirmed that the accident did not implicate the client or its work for the City. After presenting plaintiff’s counsel with overwhelming evidence that the accident did not occur anywhere near the client’s work area, plaintiff dismissed his lawsuit with prejudice for a waiver of costs.

Counsel:  David W. Smiley and Kelly A. Floyd

Zurich Specialties London Limited v. A&D Fire Protection, et al.

This case involved the Treo@Kettner condominium development located in downtown San Diego, which was completed in January 2003. Treo@Kettner was the subject of a very large construction defect action beginning in 2007. The construction defect action concluded by settlements reached in 2011. More than two years later, one of the insurers who paid for the developer’s defense sued a number of the developer’s subcontractors for subrogation and express contractual indemnity, seeking damages in excess of $1.5 million. The insurer’s lawsuit, filed in May 2013, was filed more than 10 years after the applicable statute of repose had expired.

The firm, defending 10 of the subcontractors sued in the action, immediately demurred to the insurer’s complaint, arguing that it was barred by the 10 year statute of repose stated in California Code of Civil Procedure section 337.15. The San Diego Superior Court agreed, and by order dated May 2, 2014, it dismissed the insurer’s untimely lawsuit. In its ruling, the Court concluded, “[h]aving taken judicial notice of the [notices of completion] (NOCs) and the date the original complaint in this case was filed, it can be determined that this action was filed more than 10 years after the recordation of the NOCs. . . . Based on the above findings, the Court concludes that this action was untimely filed and the demurrer is sustained.”

San Diego Superior Court Case No. 37-2013-00048004-CU-BC-CTL

Counsel: David W. Smiley and Kelly A. Floyd

Corona Summit, LLC v. GMI Construction Services, Inc.

The firm’s client was sued for alleged construction deficiencies on a commercial building that was substantially completed more than 10 years ago. The firm successfully demurred to the action on the basis that the claim was barred by the 10-year statute of repose. As a result, the client was dismissed by both the owner and developer in exchange for a waiver of costs.

Superior Court Case No. 30-2013-00639696-CU-BC-CJC

Counsel: David W. Smiley, and Daniel P. Scholz

Carmel Cove Homeowners’ Association, Inc. v. Carmel Cove, LLC, et. al.

The firm represented a condominium developer in a construction defect action brought by the homeowners’ association.  The homeowners’ association was seeking hundreds of thousands of dollars in allegedly unpaid reserve contributions and thousands of dollars in damages to repair alleged defects at the property.  The firm aggressively defended the developer on the grounds that the claims were barred by the statute of limitations and subject to mandatory arbitration in Las Vegas, Nevada as required by the governing CC&Rs.  The firm filed a petition to compel arbitration.  Prior to the court’s ruling on the petition to compel arbitration, the homeowners’ association dismissed the entire action with prejudice in exchange for a waiver of the developer’s fees and costs.

San Diego Superior Court Case No. 37-2012-00086274-CU-CD-CTL

Counsel: P. Randolph Finch Jr. and David W. Smiley

Valdivia v. CertainTeed Corp.

The firm defended a client in this multimillion dollar product defect lawsuit involving the installation of replacement windows in stucco construction homes.  In connection with this action, the firm filed a cross-action against the manufacturer for indemnity based on the client’s reliance on the manufacturer’s installation instructions for the installation of replacement windows sold by it.  In the face of joint motion for summary judgment, the plaintiff and class representative settled in exchange for a nominal amount from the manufacturer.  As a result, the firm’s client obtained a complete release and dismissal of a potentially devastating lawsuit against it with no contribution from the client.

San Diego Superior Court Case No. GIC885749

Counsel: P. Randolph Finch Jr., Jason R. Thornton, and David W. Smiley

Roel Construction Company, Inc. v. Alcala Co. et al.

The firm recovered over $1.5 million on behalf of its general contractor client and its insurers against numerous subcontractors and their insurers in a subrogation matter involving a pedestrian bridge collapse. The underlying claim was settled during a pre-litigation ADR process and the firm was nominated lead trial counsel for the client and the developer’s insurance carriers in the subsequent subrogation action against the subcontractors and their insurers. In the subrogation action, one of the insurers for a subcontractor filed a motion for summary judgment regarding its duty to defend the client as an additional insured in the underlying ADR proceeding. It was the insurer’s position that it had no duty to defend the client because no complaint was ever filed in the underlying claim. Prior to the hearing on the motion, the firm reached a settlement with the insurer for $1 million plus an additional $388,000.00 (representing reimbursement of defense fees in the underlying ADR proceeding) contingent on the firm beating the insurer’s motion for summary judgment. The firm prevailed against the motion, resulting in payment of the $388,000.00 to the client and its carriers, including reimbursement of the client’s out of pocket deductible expenses.

San Diego Superior Court Case No. 37-2007-00052066-CU-CD-CTL

Counsel: David W. Smiley

Casoleil LP v. Wermers, Inc. et al.

This case involved a multiparty construction defect action with claims by the owner in excess of $34 million. In the action, the firm’s client faced claims in excess of $5 million and insurance coverage was vigorously disputed by the client’s general liability carriers. The firm was able to obtain a favorable settlement within policy limits, including payment of the client’s defense fees and costs by the insurers.

San Diego Superior Court Case No. GIC862625

Counsel: P. Randolph Finch, Jr. and David W. Smiley

Antonio Lopez v. Sundt Construction, Inc.

The firm’s client was sued by an employee of a subcontractor for a workplace injury. After proving that the claim was barred by worker’s compensation, the firm was able to obtain a dismissal of its client, with prejudice, in exchange for a waiver of costs.

United States District Court Case No. 13-CV-02734 W NLS

Counsel: David W. Smiley

Rafael Gonzalez v. Hensel Phelps Construction Co.

The firm’s client was sued for indemnity in connection with a personal injury lawsuit filed by one of its employees. The client’s insurance company initially denied coverage. The firm successfully convinced the client’s insurer that its coverage denial was in error. As a result, the carrier provided defense and a settlement was reached that was fully funded by the insurer.

San Diego Superior Court Case No. 37-2012-00084464-CU-PO-CTL

Counsel: David W. Smiley

Ingeborg Hogue v. West Coast Air Conditioning

An asbestos claim was filed against the firm’s general contractor client by a former employee of a public school district, whom the general contractor performed modernization work for in the 1990s. Following an aggressive investigation into the project, and after confronting the plaintiff with conclusive evidence that the client performed no asbestos related work, the firm was able to obtain a pre-answer dismissal of the plaintiff’s complaint with no payment by the firm’s client.

San Diego Superior Court Case No. 37-2011-00084491-CU-AS-CTL

Counsel: David W. Smiley

Kevcon, Inc. v. L.B. Contracting, LLC

The firm successfully obtained the dismissal of a federal court action filed in California against an out-of-state subcontractor for lack of personal jurisdiction.

(S.D.Cal. January 3, 2013, Civ. A. No. 12-CV-2014 BEN) 2013 WL 78962

Counsel: David W. Smiley and Adam C. Witt

T.B. Penick & Sons, Inc. v. Hardy Construction, Inc.

The firm successfully represented T.B. Penick & Sons, Inc., on its claim for payment on the Reunion Trails Project, a public work of improvement located in Henderson, Nevada. Upon completion of its work, the general contractor failed to pay the firm’s client citing difficulties in obtaining payment from the City of Henderson. The firm proceeded with a lawsuit against the general contractor and its payment bond. The firm also convinced the City to release the remaining construction funds to expedite final payment. Ultimately, the firm recovered the entire principal balance due the client totaling $463,451.65, plus payment of interest and attorney’s fees.

Nevada, Clark County Superior Court Case No. A-12-655744-C

Counsel: David W. Smiley

United States of America, for the use and benefit of YMC, Inc. v. Insurance Company Of The West, et al.

The firm’s surety client’s funds were frozen by a writ of execution served on the surety’s bank account after its principal paid the judgment. In less than a week, the firm was able to obtain a federal court order releasing the client’s accounts from the writ with the costs paid for by the principal on the bond.

USDC Southern District California Case No. 11MC0263

Counsel: David W. Smiley

The Weitz Company I, Inc. v. Brethren Hillcrest Homes

The firm’s client was the general contractor charged with expanding and renovating a large retirement community. The project was delayed for more than one year. The parties disputed liability for the delay. The owner sought over $1.5 million in liquidated damages from the general contractor. A five day arbitration resulted in the firm successfully defending the owner’s delay claims and the litigation resulted in a net recovery for the firm’s client.

Arbitration Proceeding Case No. 1240019438

Counsel: Jeffrey B. Baird, David W. Smiley, and Christopher R. Sillari

C & L Coatings, Inc. v. Apex Development, Inc. et al.

The firm represented a contractor against a defaulting subcontractor for breach of contract and indemnity relating to its work on a public work of improvement. During the project the contractor obtained the consent of the public agency to substitute its listed subcontractor with another subcontractor. At the end of the project the replacement subcontractor’s supplier sued the subcontractor and the contractor’s payment bond.

[expand title=”Read More” swaptitle=”Less”]In the action initiated by the firm against the subcontractor for breach of contract and express indemnity, the subcontractor moved for summary judgment arguing that its contract with the contractor was void because the public agency failed to give the original subcontractor notice of the substitution and an opportunity for a substitution hearing. The trial court granted the motion for summary judgment and the firm appealed the decision to the California Court of Appeal on petition for writ of mandate. The Court of Appeal agreed with the firm that the contract was valid because the failure to comply with the notice and hearing requirements of the Public Contract Code was not caused by the contractor who obtained public entity consent. Accordingly, it reversed the summary judgment order and allowed the contractor to proceed to trial on its breach of contract and express indemnity claims against the defaulting subcontractor.

Court of Appeal of the State of California, 2nd Dist. Case No. B215701
[/expand]

David Smiley is an experienced construction litigation attorney who works with company owners, presidents, CEOs and COOs of general contractors, large-scale specialty subcontractors, engineering design firms, and other construction industry businesses.  He is highly knowledgeable and skilled in handling construction defect, property damage, personal injury, and payment and collections litigation, as well as construction contract review, negotiations, and insurance coverage matters.  David practices in California and throughout southwestern United States.

CONSTRUCTION DEFECT LITIGATION

While mediation or litigation may be viable options, David first applies his proven negotiating skills, command of alternative dispute resolution approaches, and calming demeanor to every engagement.  Through his ability to collaborate well with other attorneys and insurance representatives, he is ideally suited to lead and manage the multi-party legal teams necessary to succeed in complex state and federal construction litigation.  From oversight of case investigations and insurance funding assessments to legal strategy development and implementation, David consistently achieves outstanding results under the most demanding circumstances.

PROPERTY DAMAGE LITIGATION

Resolving property damage disputes on state and federal construction projects — especially those of the catastrophic variety — present unique challenges to general contractors and specialty subcontractors.  Drawing upon over eighteen years of experience, David provides wisdom and guidance in handling property damage litigation matters.  Leading thorough and deliberate investigations, evaluating and determining responsibility, and working collaboratively with insurers are hallmarks of David’s practice.  It is a formula that consistently produces win-win outcomes for our clients.

PERSONAL INJURY LITIGATION

Given his long history and understanding of insurance company policies and practices, David is adept and well prepared for the unique challenges of third-party personal injury matters.  He has represented general contractors and subcontractors on claims brought both during and after the completion of construction projects with excellent results.  That insurers such as Zurich, AIG, and others have placed David on their approved panels are testament to his successful defense of their insureds.

EXTRA COST, DELAY, AND PAYMENT AND COLLECTION CLAIMS

The legal bureaucracy overlaying payment and collection matters on federal construction projects is complex and ever changing.  With little room for negotiation, many Finch, Thornton & Baird clients look to David to help them navigate these turbulent issues.  He responds by aggressively and methodically pursuing claims for extra costs or extra work, scheduled disruptions, delay, interruption, and more.  Calling upon his wealth of experience and successful prosecution of mechanic’s liens, stop payment notices, Miller Act, and other collection claims, David knows how to get clients paid!

CONSTRUCTION CONTRACTS REVIEW AND NEGOTIATION

It stands to reason that the attorney who so capably litigates claims on behalf of clients is equally well qualified to impart his expertise regarding litigation avoidance and risk management.  With an eye toward identifying the pitfalls of indemnity, insurance, terms of payment, termination, project schedule, and notice provisions, David’s review and negotiation of construction contracts and agreements is a sound investment in risk management.

COURSE-OF-PERFORMANCE COUNSEL

Could partnering with a legal authority who can effectively navigate the statutory framework that surrounds most construction projects enhance your profitability?  Many experienced general contractors and subcontractors believe it can — with good reason.  The litigation and non-litigation strategies that David brings to each engagement are well balanced and serve to expedite a wide range of claims and disputes.  From bid protests and bid substitution requests to contract terminations, David’s active involvement in long-troubled construction projects ensures our clients achieve most favorable results at lower cost.

  • Defense and litigation of construction defect, property damage, personal injury, and products liability disputes
  • Insurance coverage, bad faith, and extra-contractual liability
  • Course-of-performance counsel
  • Public and private works disputes
  • Business disputes
  • Delay, inefficiency, and extra work claims
  • Foreclosure on mechanic’s liens and enforcement of stop payment notices
  • State and local bid protests
  • Subcontractor listing and substitution issues
  • Contract review and negotiation
Subcontractor v. General Contractor

RAIL PROJECT

The firm represented the general contractor in defense of an underground utility subcontractor’s multi-million dollar dispute concerning project delays and contractor’s license issues related to work on a rail project in California. Less than a month before trial, the case settled on favorable terms.

Counsel: P. Randolph Finch Jr., Jason R. Thornton, and David W. Smiley 

Tree Service v. Truck Center

The firm represented a local tree service company client in its claims against a national truck repair company that severely damaged the client’s tree-trimming truck.  The truck repair company denied all liability and blamed the loss on the client.

Firm Obtains Repairs for DAMAGED Tree-Trimming Truck.

The firm took an aggressive approach and sued the truck repair company for the client’s costs of repair, lost profit, and other damage to its business.  This approach resulted in an out-of-court settlement which made the client whole.​

Counsel: David W. Smiley

Charter School v. Project Owner

RAIL PROJECT

The firm defended a general contractor against an indemnity claim brought by a public agency project owner in connection with an inverse condemnation claim.  As a result of the firm’s efforts, the public agency dismissed the firm’s client.

Counsel: P. Randolph Finch Jr. and David W. Smiley

Trade Subcontractor Dismissed From A 15-Home Construction Defect Case In Nevada

The firm represented a decorative stone veneer installation and manufacturing company in a construction defect case arising from a massive housing development project located in Las Vegas, Nevada.  Fifteen homeowner plaintiffs discovered various construction defects in their homes and sued the developer for the costs of repairs and legal fees.  The home developer promptly tendered its defense to the stone installation contractor and other subcontractors — threatening to embroil them in a years-long statutory claims process.

LEGAL INGENUITY PREVAILS IN ACCELERATING A SETTLEMENT.

Using a recently enacted statutory exception, requiring a showing of resultant damage from defects, the firm successfully argued that the client’s decorative stone veneer work on the homes did not cause resultant damage giving rise to an actionable construction defect claim under Nevada law.  Based on this, the firm successfully negotiated the client’s no-cost dismissal from the case.

Counsel: David W. Smiley and Daniel R. Spencer

Electrical Subcontractor Recovers Full Payment On Miller Act Claim

The firm represented an electrical subcontractor in a claim for the balance due for work on a Department of Veterans Affairs project.  The general contractor had run out of funds to pay its subcontractors.

SWIFT ACTION ACHIEVES DESIRED RESULT.

The firm filed suit against the general contractor and its Miller Act payment bond surety for recovery on the subcontract and the bond.  Within 30 days of the firm’s filing of the action, the surety paid the contract balance in full, plus interest and attorneys’ fees.

Counsel: David W. Smiley

HVAC Subcontractor Recovers Payment from General Contractor on Mechanic’s Lien

The firm represented a subcontractor in a claim for recovery on amounts due for work performed on a 49-unit apartment building project.  The firm was brought in after the general contractor refused to issue final payment following completion of the project, claiming numerous unsubstantiated back charges.

The firm filed suit against the contractor and the project’s owner for breach of contract and foreclosure of the client’s mechanic’s lien.  After the firm served the complaint, but before the general contractor and owner’s answer, the general contractor paid the subcontractor’s claim in full.

Counsel: David W. Smiley

Firm Wins Precedent Setting Decision On The Enforceability Of Forum-Selection Clauses In Federal Miller Act Claims

Forum-selection clause enables general contractor to litigate in agreed venue.

The firm’s client was a general contractor who hired a demolition subcontractor in connection with an Army Corps of Engineers project located in Nevada.  The subcontract contained a forum-selection clause, which placed venue for all disputes in the federal and state courts located in Maricopa County, Arizona.  When the subcontractor sued the general contractor and its surety for breach of contract and enforcement of its Miller Act payment bond in the United States District Court for the District of Nevada, the firm successfully enforced the subcontract’s valid forum-selection clause and had the case transferred to the federal district court located in the client’s home forum of Maricopa County, Arizona.

General contractors working on projects in foreign jurisdictions to benefit from precedent setting decision.

In a decision of first impression by a district court in the Ninth Circuit, the Court ruled that a valid forum-selection clause superceded the venue provisions of the Miller Act (40 U.S.C. § 3133(b)(3)(B)), which require Miller Act claims to be filed where the project is located.  The decision in this case is of paramount importance to general contractors who work on projects in foreign jurisdictions.  It also underscores how a properly drafted forum-selection clause can be effectively used to ensure that disputes are efficiently litigated in the contractor’s home jurisdiction.

Counsel: David W. Smiley

Firm Obtains Dismissal Of General Contractor In Design Defect Case

The firm’s client was hired by Caltrans to construct a retaining wall that was built in accordance with Caltrans issued plans and under the full-time continuous inspection of the agency’s resident engineer.  The plans specified the installation of weep holes at the base of the wall to allow for drainage of water in the backfill area behind the wall.  However, the plans failed to provide a design for the delivery of stormwater discharge away from the base of the wall.  This design failure resulted in massive flooding of four adjacent residential properties during rain events.

Scrutiny of investigative documents reveals unforeseen design defect.

In the ensuing negligence action against the firm’s client, the firm obtained key investigative documents from Caltrans showing that the damages were caused by an unforeseen defect with the wall’s design and not by any construction errors and omissions.  There was also evidence that the claims were barred by the three-year statute of limitations applicable to patent defects.  Shortly after the firm provided plaintiffs’ counsel with these key documents and proof that the claims were without merit as time barred, the plaintiffs dismissed the firms’s client with prejudice in exchange for a waiver of costs.

Counsel: David W. Smiley

Firm Defeats Lawsuit By Out-Of-State Vendor

​The Firm represented a California-based general contractor in a dispute with an out-of-state vendor over defective storage tanks.  The vendor filed a pre-emptive lawsuit in their state of business against the general contractor in order to obtain a more favorable venue for the claim.  The Firm defeated the lawsuit on the basis that the out-of-state court did not have jurisdiction over our California-based client.

Counsel: David W. Smiley and Christopher R. Sillari

Complete Defense of Landslide Claim

The Firm successfully represented a general contractor against the claim of an owner of property located next to a highway expansion project.  The owner’s lawsuit alleged that the general contractor’s work on the project had caused a landslide onto its property.

The Firm was able to secure the general contractor’s immediate dismissal from the lawsuit by providing the owner with pre- and post-construction geotechnical studies showing that the landslide was caused by a leak in the storm drain located on an adjoining property.

Counsel: David W. Smiley

Subcontractor v. Subcontractor: Firm Defeats Multi-Million Dollar Indemnity Claim

The firm represented a subcontractor as independent counsel in connection with a multi-million dollar personal injury case filed by one of its employees who was injured on a construction project.  The employee was exempt from workers’ compensation and sued the general contractor and the subcontractor, who created the injury-causing hazard.  The subcontractor responsible for causing the injury cross-claimed against the client for equitable indemnity, claiming that it failed to follow jobsite safety protocols.

The firm and its co-insurance defense counsel successfully defeated the claim by settling with the injured employee for a minor amount, which was approved by a court determination of good faith settlement.  The insurance company for the firm’s client was also disputing liability and coverage under the client’s commercial general liability policy.  The firm successfully convinced the insurer to provide the necessary defense and indemnity benefits to defeat the multi-million dollar indemnity claim.

Counsel: David W. Smiley

David Bahena v. KTA Construction, Inc.

A bicyclist sued the firm’s client for personal injuries from a bicycle accident that occurred in an alley near an open meter box maintained by the City of San Diego. During discovery, it was confirmed that the accident did not implicate the client or its work for the City. After presenting plaintiff’s counsel with overwhelming evidence that the accident did not occur anywhere near the client’s work area, plaintiff dismissed his lawsuit with prejudice for a waiver of costs.

Counsel:  David W. Smiley and Kelly A. Floyd

Zurich Specialties London Limited v. A&D Fire Protection, et al.

This case involved the Treo@Kettner condominium development located in downtown San Diego, which was completed in January 2003. Treo@Kettner was the subject of a very large construction defect action beginning in 2007. The construction defect action concluded by settlements reached in 2011. More than two years later, one of the insurers who paid for the developer’s defense sued a number of the developer’s subcontractors for subrogation and express contractual indemnity, seeking damages in excess of $1.5 million. The insurer’s lawsuit, filed in May 2013, was filed more than 10 years after the applicable statute of repose had expired.

The firm, defending 10 of the subcontractors sued in the action, immediately demurred to the insurer’s complaint, arguing that it was barred by the 10 year statute of repose stated in California Code of Civil Procedure section 337.15. The San Diego Superior Court agreed, and by order dated May 2, 2014, it dismissed the insurer’s untimely lawsuit. In its ruling, the Court concluded, “[h]aving taken judicial notice of the [notices of completion] (NOCs) and the date the original complaint in this case was filed, it can be determined that this action was filed more than 10 years after the recordation of the NOCs. . . . Based on the above findings, the Court concludes that this action was untimely filed and the demurrer is sustained.”

San Diego Superior Court Case No. 37-2013-00048004-CU-BC-CTL

Counsel: David W. Smiley and Kelly A. Floyd

Corona Summit, LLC v. GMI Construction Services, Inc.

The firm’s client was sued for alleged construction deficiencies on a commercial building that was substantially completed more than 10 years ago. The firm successfully demurred to the action on the basis that the claim was barred by the 10-year statute of repose. As a result, the client was dismissed by both the owner and developer in exchange for a waiver of costs.

Superior Court Case No. 30-2013-00639696-CU-BC-CJC

Counsel: David W. Smiley, and Daniel P. Scholz

Carmel Cove Homeowners’ Association, Inc. v. Carmel Cove, LLC, et. al.

The firm represented a condominium developer in a construction defect action brought by the homeowners’ association.  The homeowners’ association was seeking hundreds of thousands of dollars in allegedly unpaid reserve contributions and thousands of dollars in damages to repair alleged defects at the property.  The firm aggressively defended the developer on the grounds that the claims were barred by the statute of limitations and subject to mandatory arbitration in Las Vegas, Nevada as required by the governing CC&Rs.  The firm filed a petition to compel arbitration.  Prior to the court’s ruling on the petition to compel arbitration, the homeowners’ association dismissed the entire action with prejudice in exchange for a waiver of the developer’s fees and costs.

San Diego Superior Court Case No. 37-2012-00086274-CU-CD-CTL

Counsel: P. Randolph Finch Jr. and David W. Smiley

Valdivia v. CertainTeed Corp.

The firm defended a client in this multimillion dollar product defect lawsuit involving the installation of replacement windows in stucco construction homes.  In connection with this action, the firm filed a cross-action against the manufacturer for indemnity based on the client’s reliance on the manufacturer’s installation instructions for the installation of replacement windows sold by it.  In the face of joint motion for summary judgment, the plaintiff and class representative settled in exchange for a nominal amount from the manufacturer.  As a result, the firm’s client obtained a complete release and dismissal of a potentially devastating lawsuit against it with no contribution from the client.

San Diego Superior Court Case No. GIC885749

Counsel: P. Randolph Finch Jr., Jason R. Thornton, and David W. Smiley

Roel Construction Company, Inc. v. Alcala Co. et al.

The firm recovered over $1.5 million on behalf of its general contractor client and its insurers against numerous subcontractors and their insurers in a subrogation matter involving a pedestrian bridge collapse. The underlying claim was settled during a pre-litigation ADR process and the firm was nominated lead trial counsel for the client and the developer’s insurance carriers in the subsequent subrogation action against the subcontractors and their insurers. In the subrogation action, one of the insurers for a subcontractor filed a motion for summary judgment regarding its duty to defend the client as an additional insured in the underlying ADR proceeding. It was the insurer’s position that it had no duty to defend the client because no complaint was ever filed in the underlying claim. Prior to the hearing on the motion, the firm reached a settlement with the insurer for $1 million plus an additional $388,000.00 (representing reimbursement of defense fees in the underlying ADR proceeding) contingent on the firm beating the insurer’s motion for summary judgment. The firm prevailed against the motion, resulting in payment of the $388,000.00 to the client and its carriers, including reimbursement of the client’s out of pocket deductible expenses.

San Diego Superior Court Case No. 37-2007-00052066-CU-CD-CTL

Counsel: David W. Smiley

Casoleil LP v. Wermers, Inc. et al.

This case involved a multiparty construction defect action with claims by the owner in excess of $34 million. In the action, the firm’s client faced claims in excess of $5 million and insurance coverage was vigorously disputed by the client’s general liability carriers. The firm was able to obtain a favorable settlement within policy limits, including payment of the client’s defense fees and costs by the insurers.

San Diego Superior Court Case No. GIC862625

Counsel: P. Randolph Finch, Jr. and David W. Smiley

Antonio Lopez v. Sundt Construction, Inc.

The firm’s client was sued by an employee of a subcontractor for a workplace injury. After proving that the claim was barred by worker’s compensation, the firm was able to obtain a dismissal of its client, with prejudice, in exchange for a waiver of costs.

United States District Court Case No. 13-CV-02734 W NLS

Counsel: David W. Smiley

Rafael Gonzalez v. Hensel Phelps Construction Co.

The firm’s client was sued for indemnity in connection with a personal injury lawsuit filed by one of its employees. The client’s insurance company initially denied coverage. The firm successfully convinced the client’s insurer that its coverage denial was in error. As a result, the carrier provided defense and a settlement was reached that was fully funded by the insurer.

San Diego Superior Court Case No. 37-2012-00084464-CU-PO-CTL

Counsel: David W. Smiley

Ingeborg Hogue v. West Coast Air Conditioning

An asbestos claim was filed against the firm’s general contractor client by a former employee of a public school district, whom the general contractor performed modernization work for in the 1990s. Following an aggressive investigation into the project, and after confronting the plaintiff with conclusive evidence that the client performed no asbestos related work, the firm was able to obtain a pre-answer dismissal of the plaintiff’s complaint with no payment by the firm’s client.

San Diego Superior Court Case No. 37-2011-00084491-CU-AS-CTL

Counsel: David W. Smiley

Kevcon, Inc. v. L.B. Contracting, LLC

The firm successfully obtained the dismissal of a federal court action filed in California against an out-of-state subcontractor for lack of personal jurisdiction.

(S.D.Cal. January 3, 2013, Civ. A. No. 12-CV-2014 BEN) 2013 WL 78962

Counsel: David W. Smiley and Adam C. Witt

T.B. Penick & Sons, Inc. v. Hardy Construction, Inc.

The firm successfully represented T.B. Penick & Sons, Inc., on its claim for payment on the Reunion Trails Project, a public work of improvement located in Henderson, Nevada. Upon completion of its work, the general contractor failed to pay the firm’s client citing difficulties in obtaining payment from the City of Henderson. The firm proceeded with a lawsuit against the general contractor and its payment bond. The firm also convinced the City to release the remaining construction funds to expedite final payment. Ultimately, the firm recovered the entire principal balance due the client totaling $463,451.65, plus payment of interest and attorney’s fees.

Nevada, Clark County Superior Court Case No. A-12-655744-C

Counsel: David W. Smiley

United States of America, for the use and benefit of YMC, Inc. v. Insurance Company Of The West, et al.

The firm’s surety client’s funds were frozen by a writ of execution served on the surety’s bank account after its principal paid the judgment. In less than a week, the firm was able to obtain a federal court order releasing the client’s accounts from the writ with the costs paid for by the principal on the bond.

USDC Southern District California Case No. 11MC0263

Counsel: David W. Smiley

The Weitz Company I, Inc. v. Brethren Hillcrest Homes

The firm’s client was the general contractor charged with expanding and renovating a large retirement community. The project was delayed for more than one year. The parties disputed liability for the delay. The owner sought over $1.5 million in liquidated damages from the general contractor. A five day arbitration resulted in the firm successfully defending the owner’s delay claims and the litigation resulted in a net recovery for the firm’s client.

Arbitration Proceeding Case No. 1240019438

Counsel: Jeffrey B. Baird, David W. Smiley, and Christopher R. Sillari

C & L Coatings, Inc. v. Apex Development, Inc. et al.

The firm represented a contractor against a defaulting subcontractor for breach of contract and indemnity relating to its work on a public work of improvement. During the project the contractor obtained the consent of the public agency to substitute its listed subcontractor with another subcontractor. At the end of the project the replacement subcontractor’s supplier sued the subcontractor and the contractor’s payment bond.

[expand title=”Read More” swaptitle=”Less”]In the action initiated by the firm against the subcontractor for breach of contract and express indemnity, the subcontractor moved for summary judgment arguing that its contract with the contractor was void because the public agency failed to give the original subcontractor notice of the substitution and an opportunity for a substitution hearing. The trial court granted the motion for summary judgment and the firm appealed the decision to the California Court of Appeal on petition for writ of mandate. The Court of Appeal agreed with the firm that the contract was valid because the failure to comply with the notice and hearing requirements of the Public Contract Code was not caused by the contractor who obtained public entity consent. Accordingly, it reversed the summary judgment order and allowed the contractor to proceed to trial on its breach of contract and express indemnity claims against the defaulting subcontractor.

Court of Appeal of the State of California, 2nd Dist. Case No. B215701
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When other dispute resolution remedies have been exhausted, David’s vast construction and insurance experience are invaluable assets to clients seeking positive outcomes. David practices in California and throughout southwest United States.

(858) 737-3100, Ext. 3032

(858) 737-3101

Sarah Faller
Senior Legal Secretary
  • Construction Law
    • Claims & Disputes
    • Local Agency, Municipal & State Contracts
    • Federal Procurement & Claims
    • Project Counsel
    • Prime Contracts & Subcontracts
    • Real Estate
    • Collections
    • Insurance Defense
  • Business & Commercial Litigation
  • Liability Defense
  • California: State Courts
  • Arizona: State Courts
  • Colorado: State Courts
  • Nebraska: State Courts  (Inactive)
  • Nevada: State Courts
  • U.S. District Courts of California: Central, Eastern, Northern, Southern
  • U.S. District Court of Colorado  (Inactive)
  • U.S. District Court of Nevada
  • U.S. District Court of Arizona
  • U.S. Court of Appeals, Ninth Circuit
  • Creighton University, J.D.
    • Law Review
  • University of Colorado at Boulder, B.A., History and Classics
  • State Bar of California
  • State Bar of Arizona
  • State Bar of Colorado
  • State Bar of Nebraska
  • State Bar of Nevada
  • 2012 Top Attorneys in Real Estate and Construction Litigation by the San Diego Daily Transcript
  • 2007 Young Attorneys Finalist by the San Diego Daily Transcript
  • Recipient, Judge Donald P. Lay Law Review Student Prize
  • Liaison to Cardiff School Board, Citizens Oversight Committee for Proposition U

Mr. Smiley is an accomplished public speaker and regularly addresses the construction community on a range of training and educational topics, including:

Collection Strategies and Practical Advice for Public & Private Works Projects

Indemnity & Insurance Construction Law

Construction Project Management Best Practices: A Legal Perspective

Contract Negotiation Best Practices

Insurance Basics for the Construction Industry

Fundamentals of Insurance Procurement and Claims on Construction Projects

Insurance Coverage of Construction Projects: Getting the Most From Your Broker and Carrier

2012 Mechanic’s Lien Law Update

Announcement of legal seminar Construction Warranty, Defects, and Property Damage to be presented to AGC by firm partner David W. Smiley and CMR Risk & Insurance Service's Cameron N. Stewart.
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