The Virtues of Texting

Last Updated on Sunday, 27 August 2023 03:18 Written by Chris Griswold Tuesday, 14 October 2014 02:53

Texting.  We all do it….  What did we do without it?  Outside of the car wrecks and other casualties that sometimes unfortunately result from irresponsible texting, taken in its best light and done responsibly, texting is probably still one of the handiest inventions in recent times for business people.  From a legal perspective, however, there are times when, shockingly, as to employees, texting is preferable to emailing and other venues when discussing certain sensitive, business related matters which might otherwise be discoverable later on during litigation (in addition to the fact that texting is more spontaneous and less restrictive than emailing and other venues).  Let’s talk about it below.… (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

The Virtues of Texting

Although electronic discovery in both State and Federal Courts now extends well into electronic transmissions of all types (including social media venues which are within the public domain), if you’re an employee of a company which is involved (or soon to be involved) in litigation, given employers’ universal duties to defend and indemnify their employees, the texts made on an employee’s personal smartphone (not the employee’s issued, company owned smartphone) with any other company employees (including any other intra-company communications of any nature conducted through such texts), generally speaking, require additional effort on the part of any other litigant to such lawsuit to obtain during the discovery phase of litigation since the device is owned personally by such employee, not corporately owned by the business entity involved in such lawsuit, and even if obtained, still require the company’s indemnification of such employee.  Note:  An exception to the indemnification rule set forth above is something called an “ultra vires act” exclusion whereby the employee acts well outside the course and scope of its employment (something called an ultra vires act on the part of such employee) thereby negating the employer’s duty to indemnify such employee.

So, if you’re an employee using your own personal smartphone to sometimes conduct your company’s business affairs, the texts you share on your personally owned smartphone with other company persons on their personally owned smartphones (except with the business owners themselves) are usually just that much harder to obtain during the discovery process.  The same thing could ostensibly apply to emails sent on the employee’s personally owned smartphone, however, unlike texting (where only phones are usually involved) if the emails are unintentionally sent to other company owned computers and/or other devices (as is usually the case since smartphones are usually set up to send/receive email through such corporate owned, host computers), the protective effect I mention above would be lost once such emails were received on such corporate owned computers and/or devices.

Lastly, remember that texting can be helpful in other ways too for everyone (whether or not you’re an employee).  How?  By texting, you can keep an excellent record of events come litigation time – reconstructing timelines, recounting various positions taken by different parties, etc… becomes much easier when looking back on old texts.

What My Clients Are Saying

“I have been extremely pleased with the legal services provided by Chris.  He is an expert on real estate issues; devotes immediate attention to our needs and follows through with all required action.  I look forward to a continuing relationship with Chris.”
 Harrison Levy / Chairman / Newmark Grubb Levy Strange Beffort / Oklahoma City, Oklahoma

Constructive Evictions – When the “Beer Ain’t Cold” Anymore

Last Updated on Sunday, 27 August 2023 03:18 Written by Chris Griswold Thursday, 4 September 2014 02:24

Landlords, Tenants, Brokers, Lenders and those people who deal a lot with commercial leasing – this one’s for you this month.  What exactly is a “constructive eviction?”  When can a commercial tenant claim a constructive eviction?  Let’s get a better understanding of the legality of this often misused term… (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Constructive Evictions – “Voting With Your Feet”

Under a residential lease contract, there is an implied “warranty of habitability.”  This means there has to be, among other things, running water, reasonable amounts of hot running water (and reasonable amounts of heat for such hot water) located within the premises for bathing/drinking, a door that locks (for safety reasons), a working heating and air conditioning system (especially during the hot, Summer and cold, Winter months), and certain other basic, essential things; without which, the landlord has breached the implied warranty of habitability (i.e., the implied warranty that the premises can actually be lived in by a human being) and, under such conditions, the tenant can claim that they’ve been “constructively evicted” by their landlord due to the absence of such basic, essential things.  Example: in the middle of December, a residential tenant could claim they’ve been constructively evicted by their landlord since the premises has no hot running water and the climate heating system isn’t working….

In stark contrast, under a commercial lease contract, there is no implied warranty of habitability.  Why?  People don’t live (or at least they’re not supposed to live) in commercial buildings (except under certain situations, none of which will be discussed here).

So when can a commercial tenant claim that they’ve been constructively evicted by their landlord (so as to justify their non-payment of rent under their lease)?

Whatever the crazy fact pattern, the end result must be the same: tenant must actually physically leave and vacate the premises due to the alleged, unreasonable conduct (or omission(s) to act) on the part of landlord.  Put another way, whatever the tenant claims constitutes a constructive eviction, the tenant’s claim won’t be successful if tenant is still occupying the premises when the tenant claims such constructive eviction – the court just sees it as free rent for the tenant….  So, if things are as bad as tenant claims, tenant must “vote with their feet” and actually leave the commercial premises to claim a constructive eviction.

What My Clients Are Saying

“Chris Griswold has been a tremendous asset in making my dream a reality! His legal advice, strong business acumen and initiative in helping me find the answers got me started on the right track. His honesty, common sense and strong interest in helping me succeed was a welcome addition in finding the right partner for legal advice and direction. I look forward to working with him again in the future.”
Margaret Holloway / Partner, Café 501 and Boulevard Steakhouse; President, Senior Care Network / Oklahoma City, Oklahoma

Rise and Fall

Last Updated on Sunday, 27 August 2023 03:18 Written by Chris Griswold Friday, 6 June 2014 05:36

This month I want to quickly discuss the insurance-related “ins and outs” of the nationally televised construction defects of the nation’s largest and most expensive high school football stadium ever built (located in Allen, Texas) which recently came to light after significant cracks were discovered in the concrete of the project’s structure (Note:  the stadium was controversial to begin with after costing taxpayers some $50,000.000.00+ to construct).  This should further one’s insurance knowledge… (and don’t forget to click on my Facebook or YouTube links below to also see my short video on this material).

Rise and Fall

What is the insurance side of this fact pattern?  There will, in all likelihood, be 3 sorts of insurance claims which could possibly be made. What are they?

1)      Professional liability of the engineers and architects who completed/built/oversaw the project.  Since these policies are typically “claims made” policies (which means the claim must be made while the policies are still paid up and effective), let’s hope these engineers/architects have kept their policies up lest they become personally liable with no insurance coverage to help them.

2)      Commercial General Liability of the both the builders and the vendors who supplied materials for the project.  After a certificate of occupancy is issued on a structure (in this case, the stadium has been in use now for 2 plus years – so the certificate of occupancy has long since been issued), the builders risk policy held by the builders (which is the property coverage policy which covers the unfinished structure) lapses and, simultaneously, the builders’ and vendors’ commercial general liability policies continue to protect these parties through what is known as “completed operations coverage.”  In other words, there is no longer any commercial general liability coverage predicated upon the builders/vendors active operations in constructing the project, instead, the coverage continues in what the builders/vendors have left behind – the completed project.  Interesting to note: the Commercial General Liability policies of builders, contractors and vendors, unlike the professional liability policies of the engineers and architects, is “occurrence based.”  What does this mean?  It means that these builders, contractors and vendors general liability policies continue to protect them long after the project is complete – so long as the occurrences giving rise to the claims now possibly being made against the builders, contractors and/or vendors occurred during the time which their respective commercial general liability policies were paid up and in effect (i.e., usually during the time before the certificate of occupancy was issued and the project was still actively being constructed).  However, how long does this “extension of coverage” last?  Each State has its own statute of limitations on the length of time during which the terms and provisions of a written contract (which includes written insurance contracts) remain enforceable.  In Texas, it’s 4 years.  In Oklahoma, it’s 5 years.  So, these builders, contractors and/or vendors remain on the hook for another 2 or so years from now (since the project was completed around 2 years ago now).

3)      Lastly, the builders, contractors and vendors may also have their own “professional errors and omissions” policies which might protect them and these may be called upon soon.  Again, these would be “claims made” policies.  The claims which may possibly be made upon these policies would, like the foregoing, previously described liable insurance policies, be in the nature of latent, construction defect claims brought by the Allen Independent School District and/or the City of Allen, among other possible plaintiffs….

What My Clients Are Saying

“I can’t say enough good things about Chris Griswold and his firm.  He jumped in and tactfully assisted me in navigating a hostile easement issue with the City.   Based upon Chris, we were successful in negotiating a fair settlement in a very timely manner.  I would highly recommend Chris Griswold to anyone and I plan on using him again in the future.”
David Ostrowe / Principal & Owner, O&M Restaurant Group / Oklahoma City, Oklahoma