{"id":903224,"date":"2024-08-29T14:36:24","date_gmt":"2024-08-29T20:36:24","guid":{"rendered":"https:\/\/www.myconstructionexpert.com\/blog\/?p=903224"},"modified":"2024-08-29T14:36:24","modified_gmt":"2024-08-29T20:36:24","slug":"attorney-client-privilege-and-expert-retention-lessons","status":"publish","type":"post","link":"https:\/\/www.myconstructionexpert.com\/blog\/attorney-client-privilege-and-expert-retention-lessons\/","title":{"rendered":"Protecting Expert Opinions: Lessons Regarding Attorney-Client Privilege and Expert Retention in Construction Litigation"},"content":{"rendered":"\n

David McLain | Higgins, Hopkins, McLain & Roswell<\/a><\/p>\n\n\n\n

The\u00a0Hill Hotel Owner LLC v. Hanover Insurance Company\u00a0case has garnered attention due to its implications on the scope of attorney-client privilege in construction litigation.\u00a0 This blog post delves into the project\u2019s background, the ensuing litigation, and the intricate work undertaken by attorneys and experts, highlighting the potential pitfalls associated with assumptions about privilege protections<\/a>.<\/p>\n\n\n\n

Background of the Project<\/strong><\/p>\n\n\n\n

Hill Hotel Owner LLC initiated a construction project in Boulder, Colorado, which included building a basement-level parking garage with an 18\u201d thick concrete slab floor.  The project utilized \u201cvoid form,\u201d a cardboard underlayment intended to create a gap between the foundation and the underlying soil.  Unfortunately, the void form became wet and collapsed under the weight of the fresh concrete, causing considerable damage, and necessitating millions of dollars in remediation costs.<\/p>\n\n\n\n

Insurance Claim and Denial<\/strong><\/p>\n\n\n\n

Seeking to cover the remediation costs, Hill Hotel Owner LLC filed a claim with Hanover Insurance Company under its builder\u2019s risk policy.  Builder\u2019s risk policies generally cover physical loss or damage during construction but often exclude damages resulting from faulty workmanship or negligence.  Following an investigation, Hanover denied the claim, attributing the damage to contractor negligence, which was not covered under the policy.<\/p>\n\n\n\n

Litigation and Discovery Disputes<\/strong><\/p>\n\n\n\n

Dissatisfied with Hanover\u2019s denial, Hill Hotel Owner LLC filed a lawsuit against the insurer, alleging bad faith in handling the claim.  This litigation spotlighted several disputes regarding the applicability of attorney-client privilege and work-product protection to communications involving Hanover\u2019s attorneys and third-party experts.<\/p>\n\n\n\n

Role of Attorneys and Experts<\/strong><\/p>\n\n\n\n

Hanover engaged Kelly Huff, a structural engineer from S-E-A Limited, to assess the damage.  Ms. Huff\u2019s findings, which pointed to contractor negligence, were critical in Hanover\u2019s decision to deny the claim.  Anticipating potential subrogation, Hanover\u2019s outside counsel consulted Ms. Huff to integrate her technical insights into their legal strategy.  Additionally, Hanover consulted Peter Marxhausen, another structural engineer, to review Ms. Huff\u2019s findings and provide further guidance.<\/p>\n\n\n\n

These interactions and communications between Hanover\u2019s attorneys and the engineers became the central issue in the privilege dispute.\u00a0 Hill Hotel Owner argued that these communications were not protected under attorney-client privilege<\/a> or work-product doctrine, asserting that they were part of routine business activities and not made in anticipation of litigation.<\/p>\n\n\n\n

The Trial Court\u2019s Ruling<\/strong><\/p>\n\n\n\n

The trial court ruled against Hanover, determining that the communications involving Ms. Huff and Mr. Marxhausen were not protected by attorney-client privilege or work-product doctrine.  The court concluded that these communications were not prepared in anticipation of litigation.  This ruling raised substantial concerns among legal professionals, as it appeared to narrow the traditional understanding of privilege protections.<\/p>\n\n\n\n

Appeal to the Colorado Supreme Court<\/strong><\/p>\n\n\n\n

Recognizing the broader implications of the trial court\u2019s decision, Hanover Insurance Company appealed to the Colorado Supreme Court.  The Supreme Court\u2019s decision to review the case underscores the critical nature of the issues at stake, particularly regarding the scope of attorney-client privilege in pre-litigation contexts.<\/p>\n\n\n\n

Several amicus curiae briefs were filed, underscoring the case\u2019s importance and its potential impact on legal practices.  The Colorado Trial Lawyers Association (\u201cCTLA\u201d) and United Policyholders submitted briefs supporting Hill Hotel Owner.  They argued that the trial court\u2019s ruling aligns with a broader understanding of privilege and is essential to ensuring transparency and fairness in insurance claims handling.<\/p>\n\n\n\n

Alliance Construction Solutions, Inc. v. Department of Corrections<\/strong><\/p>\n\n\n\n

To understand the broader context of attorney-client privilege, it is useful to consider the Colorado Supreme Court\u2019s decision in Alliance Construction Solutions, Inc. v. Department of Corrections.  In this case, the Colorado Supreme Court addressed whether communications between a governmental entity\u2019s attorney and its independent contractor were protected by attorney-client privilege.<\/p>\n\n\n\n

In that matter, the Department of Corrections (\u201cDOC\u201d) contracted with Alliance Construction Solutions for the construction of the Trinidad Correctional Facility.  DOC also engaged CRSS Constructors, Inc. (\u201cCRSS\u201d) as an independent contractor to serve as the project manager.  Alliance was later terminated, leading to a wrongful termination lawsuit.  During discovery, Alliance sought communications between DOC\u2019s legal counsel and CRSS, arguing that they were not privileged.<\/p>\n\n\n\n

The Colorado Supreme Court held that communications between a governmental entity\u2019s attorney and its independent contractor are protected by attorney-client privilege if:<\/p>\n\n\n\n