Marks, Finch, Thornton & Baird, LLP (858) 737-3100
David W. Smiley, Attorney
David W. Smiley practices in the areas of business litigation, construction law, construction defect, and insurance coverage. Prior to joining the firm, Mr. Smiley was associated with a Denver, Colorado firm and gained extensive experience in the field of insurance litigation, representing insureds and insurers in a wide variety of disputes including personal injury, property damage, products liability, insurance coverage, bad faith, and extra-contractual liability. His representation of public and private construction companies covers a wide array of matters including breach of contract, delay, collection, defect, insurance coverage, and bad faith.
Mr. Smiley is admitted to practice before all Arizona, California, Colorado, Nebraska, and Nevada state courts. He is also admitted to practice before the Central and Southern United States District Courts of California, the United States District Court of Colorado, and the United States District Court of Nevada. He is a member of the Arizona, California, Colorado, Nebraska, and Nevada American Bar Associations and currently is co-chair of the Construction Law Section of the San Diego County Bar Association. Mr. Smiley is also an active member of the Wallace Inn of Court. Mr. Smiley received his juris doctor from Creighton University School of Law, where he was the assistant editor of the Creighton Law Review and recipient of the Judge Donald P. Lay Law Review Student Prize. At Creighton, he also earned academic achievement awards in the areas of Trusts and Estates, and Alternative Dispute Resolution. Mr. Smiley received his Bachelor of Arts degree in History and Classics from the University of Colorado at Boulder. He was named a Finalist in the San Diego Daily Transcripts list of Young Attorneys in 2007.
Representative Experience
Valdivia v. CertainTeed Corp. San Diego Superior Court Case No. GIC885749
2011: 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.
United States of America, for the use and benefit of YMC, Inc. v. Insurance Company Of The West, et al USDC Southern District California Case No. 11MC0263
2011: 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.
Ingeborg Hogue v. West coast Air conditioning San Diego Superior Court Case No. 37-2011-00084491-CU-AS-CTL
2011: 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.
The Weitz Company I, Inc. v. Brethren Hillcrest Homes Arbitration Proceeding Case No. 1240019438
2010: 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.
Roel Construction Company, Inc. v. Alcala Co. et al. San Diego Superior Court Case No. 37-2007-00052066-CU-CD-CTL
2009: 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.
C & L Coatings, Inc. v. Apex Development, Inc. et al. Court of Appeal of the State of California, 2nd Dist. Case No. B215701
2009: 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. 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.
Casoleil LP v. Wermers, Inc. et al. San Diego Superior Court Case No. GIC862625
2009: 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.
First Class Water and Shower v. B. L. Murphy, dba B. L. Murphy & Sons San Diego Superior Court Case No. GIC840592
2006: Two week jury trial regarding breach of contract and conversion resulting in 10-2 verdict in favor of firm's client on plaintiff's complaint and 12-0 verdict in favor of firm's client on its cross-complaint.
