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Image of David W. Smiley, a partner at Finch, Thornton & Baird, LLP.

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. 3031

(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 southwest United States.

Prior to joining Finch, Thornton & Baird, LLP, Mr. Smiley was associated with a Denver, Colorado firm where he gained extensive experience in insurance litigation by representing insureds and insurers in a wide variety of disputes.  When other dispute resolution remedies have been exhausted, David’s vast construction and insurance experience are invaluable assets to clients seeking positive outcomes.

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
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: Dustin R. Jones, 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.

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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

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 southwest United States.

Prior to joining Finch, Thornton & Baird, LLP, Mr. Smiley was associated with a Denver, Colorado firm where he gained extensive experience in insurance litigation by representing insureds and insurers in a wide variety of disputes.  When other dispute resolution remedies have been exhausted, David’s vast construction and insurance experience are invaluable assets to clients seeking positive outcomes.

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
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: Dustin R. Jones, 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.

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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

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. 3031

(858) 737-3101

Sarah Faller
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
  • Nevada: State Courts
  • U.S. District Courts of California: Central, Eastern, Northern, Southern
  • U.S. District Court of Colorado
  • 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
  • San Diego County Bar Association
    • Co-chair, Construction Law Section
  • 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

Image promoting "Insurance and Indemnity: The Basics" seminar presented by Finch, Thornton & Baird, LLP partners David Smiley and Christopher Sillari.
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