​Thursdays are for The DYOJO Podcast - helping contractors shorten their DANG learning curve. Join host Jon Isaacson as we explore contractor stories, experiences, and best practices to help listeners thrive in the skilled trades.

SOURCES: 

Prior article - https://www.thedyojo.com/blog/insurance-claims-whistleblowers#/ 
Video from 60 Minutes - Florida Insurance Carriers Used Altered Hurricane Damage Reports, Whistleblowers Say - https://www.youtube.com/watch?v=j5re7zBzrJk 
TDP 92 - Contractor Bankrupted by Storm Response RJC vs AISD Part 1 https://www.youtube.com/watch?v=yjsJYljF9_0&t=124s&pp=ygUOdGhlIGR5b2pvIFJKQyA%3D 
TDP 93 - Contractors Behaving Badly? RJC vs AISD Part 2
https://www.youtube.com/watch?v=J8I-z9kSr8o&t=182s&pp=ygUOdGhlIGR5b2pvIFJKQyA%3D
TDP 96 - Moisture Damage Documentation RJC vs AISD Part 3 
https://www.youtube.com/watch?v=pZlJa5jz64s&t=375s&pp=ygUUdGhlIGR5b2pvIFJKQyBwYXJ0IDM%3D
TDP 98 - The Secret Life of Construction Contracts RJC vs AISD Part 4 - https://www.youtube.com/watch?v=uJ_Z5nOOtNg&t=684s&pp=ygUWdGhlIGR5b2pvIGppbSB0aG9tcHNvbg%3D%3D ​

SUMMARY: ​The DYOJO Podcast discusses a $200 million wrongful death trial in Oregon over the fatal shooting of Freddie Nelson Jr. in a Lowe's parking lot by a security guard, Logan Gimble, who is now serving life for second-degree murder. Nelson had a verbal altercation with a Lowe's employee over pallets, despite having permission from store staff. Gimble, who was not authorized to carry a firearm, pepper-sprayed Nelson and his wife before shooting him. The trial involves the property management firm TMT and the security company Cornerstone, with arguments centering on de-escalation training and the high crime area of the parking lot.

In recent years, many contractors have likely noticed heightened security measures at home improvement stores like Home Depot and Lowe's. It’s becoming more common to see tools locked up and armed security personnel present. This shift raises an important question: What happens when an altercation involving security personnel escalates, leading to the use of force?

A tragic case from Oregon offers a sobering example of what can go wrong when security protocols and training fall short. The incident, now at the center of a $200 million wrongful death lawsuit, involves the fatal shooting of Freddy Nelson Jr. in a Lowe's parking lot in North Portland.

The Incident

On May 29, 2021, Freddy Nelson Jr. was shot and killed by Logan Gimbel, a private security guard employed by Cornerstone, the firm contracted to provide security at the Lowe's location. Nelson had an arrangement with a Lowe’s employee to collect and recycle broken pallets, but the property management company, TMT, had implemented a strict "zero tolerance" policy for any unauthorized activity on the premises.

On the day of the incident, Nelson was in the parking lot to pick up pallets when Gimbel confronted him. The altercation quickly escalated. Gimbel pepper-sprayed Nelson and his wife, who was in the truck with him, and then fired four fatal shots through the windshield of Nelson’s vehicle as he attempted to drive away. Gimbel, now serving a life sentence for second-degree murder, was later found to be carrying a firearm he was not legally allowed to have as a security guard.

The Civil Lawsuit

Kari Nelson, Freddy’s widow, is now suing both TMT and Cornerstone, seeking $200 million in damages. Her attorney, Tom D’Amore, argues that the shooting could have been avoided if Cornerstone had provided better de-escalation training to its security personnel. He asserts that Gimbel's actions were unnecessary and that Cornerstone’s lack of proper supervision and training led to Nelson’s death.

On the defense side, the case is complex. TMT’s attorney, Sharon Collier, acknowledged the tragedy but placed the blame on Cornerstone, claiming the security company did not follow TMT’s instructions to avoid engaging with Nelson. She explained that the Lowe's location was in a high-crime area known for drug activity and gang violence, which is why they hired Cornerstone in the first place.

On the other hand, Cornerstone’s attorney, CJ Martin, admitted the company’s negligence but pointed out that Gimbel had passed all necessary background checks and training programs. She emphasized that Oregon law requires security personnel to prioritize de-escalation whenever possible, which she argues was not adequately considered under TMT’s zero tolerance policy.

Lessons for Contractors and Business Owners

For contractors and business owners, this case highlights several critical lessons when it comes to security on job sites and other properties.

1. Clear Communication and Policies: When property owners and contractors hire security companies, it’s essential to ensure there’s a clear understanding of policies and procedures. In this case, the lack of communication between TMT and Cornerstone regarding their handling of Nelson created confusion that may have contributed to the tragedy.

2. Proper Training for Security Personnel: The most important takeaway is the need for comprehensive, ongoing training in de-escalation techniques for security guards. Gimbel’s actions underscore what can happen when a situation is mishandled, leading to fatal consequences. If Cornerstone had provided better training, or if Gimbel had adhered to a de-escalation protocol, Nelson might still be alive today.

3. Liability and Risk Management: This case serves as a reminder that liability doesn’t just fall on the individual responsible for the incident—it can also extend to the companies that hired and trained them. Contractors, business owners, and property managers must vet the security firms they work with carefully, ensuring that proper safeguards and training programs are in place to prevent unnecessary escalation.

4. Balancing Security Needs and Safety: Finally, it’s essential to strike a balance between protecting property from theft and ensuring that security measures don’t endanger the safety of individuals. While security is crucial in areas with high crime, the policies and procedures guiding that security must prioritize the safety of everyone involved.

Closing Thoughts 

The tragic death of Freddy Nelson Jr. is a sobering reminder of the importance of clear security protocols and proper training. As contractors and business owners continue to navigate the complexities of maintaining secure job sites, this case offers an important lesson in ensuring that those tasked with enforcing security are adequately trained to handle situations without resorting to unnecessary force. 

As the trial continues, it will be interesting to see how the jury weighs the arguments and assigns responsibility. What’s certain, however, is that this case will have lasting implications for how security companies and their clients handle risk, liability, and training moving forward. 

For those working in industries that rely on security partnerships, this case emphasizes the importance of making sure everyone understands their role and how to safely resolve conflicts before they turn tragic.

Sources: 

Video - KPTV Fox 12 - https://www.youtube.com/watch?v=DouSndVI4gI
Article - CVN - https://blog.cvn.com/25m-trial-over-fatal-shooting-in-lowes-parking-lot-begins-watch-gavel-to-gavel-via-cvn 

​​

Transcript from the Jimmy Patronis video shared above: ​

Are door-to-door sales predatory? Are we to understand that if a consumer who has someone knocking on the door offering to provide a service that they need the logic of the CFO of the state of Florida says that they are likely a predator? If this is the case, what is his solution? Patronis instructs consumers to call their agent, their insurance company, or his office (the government).
​

• So, the bad team is staffed by contractors, public adjusters, and one would assume he forgot to name lawyers as well.
• But the good team is staffed by insurance employees and the government. 

Patronis says that if your first call is to one of the three members of the good team, "There's almost zero chance you can be taken advantage of." I think history has shown, especially in the state of Florida, that no one cares more for the consumer than the government and the insurance companies, right? 

If a policyholder who has severe damages to their home in the state of Florida follows Patronis' advice, how does the reader think this scenario will play out? 

• Call Number One - The Agent: 

The policyholder calls their local insurance agent. Hmmm, does the reader forsee any issue there? A local insurance agent who lives in the same hurricane ravaged area as the policyholder. If they aren't dealing with their home and office being destroyed, what is the likelihood that their office phone is overwhelmed with similar calls? What is the chance that the consumer gets through to their local insurance agent, it's probably very low. So, what should they do, just keep calling and wait patiently until they can get through? 

• Call Number Two - The Carrier:

The policyholder calls their insurance company's claims line. After a catastrophic event, it's likely that they will get through quickly and that the carrier will have a representative out in a timely manner as well, right? The reader knows that hurricane recovery is a process and it takes time. But, does that mean the home or business owner should keep calling and wait patiently until they can get through? 

• Call Number Three - Jimmy's Office: 

The policyholder calls the office of Jimmy Patronis. After a catastrophic event, it's likely that they will get through quickly and that the carrier will have a representative out in a timely manner as well, right? The reader knows that hurricane recovery is a process and it takes time. But, does that mean the home or business owner should keep calling and wait patiently until they can get through? 

• The Checking Writing Insurance Village

Mr. Patronis says his office will model prior hurricanes and create an insurance village where carriers will be writing checks onsite. If the reader watches the video clip from The DYOJO Podcast or reads the transcript, Jimmy advises, "If it sounds too good to be true, it probably is." But of course, his statement wouldn’t apply to the government or the insurance companies (the good guys) only to the bad guys.

If consumers don't wait for the government and the insurance companies to get their insurance village set up and then meet them there, Patronis says they are at fault? ​​​

Most people listening to the Patronis speech get caught up in the "locust" comment. But there are so many items he brings up that are far more concerning. Jimmy wants policyholders to make the calls, wait for the answers, and then join him in the insurance village for their check. He warns consumers, "When you start complicating the claim, because you've allowed predators to get involved with your claim, you're going to drag it out." In summary, Jimmy says that policyholders complicate their claims and drag them out by allowing predators into the process. 

Jimmy says that policyholders complicate their claims and drag them out by allowing predators into the process.

As we have said many times, The Restoration Triangle should be respected. The policyholder, the contractor, and the insurance carrier each have roles and responsibilities during the claims process. If the consumer does not believe that the claims process is going the way it should, that the policy is not being enforced the way it was sold to them, or the way it is stipulated in their insurance policy, then claims advocates, public adjusters, and lawyers are options well within their rights.

When Patronis encourages consumers not to understand nor exercise their rights is the government playing its role in protecting the consumer?

​If there was a contractor or a public adjuster or a lawyer that was advising policyholders to ignore their insurance company, that could be a legitimate orange flag. The consumer, their contractor of record, and the carrier each has a role to play. The carrier should not overstep in the relationship between the contractor and the consumer. Nor should the contractor overstep in the relationship between the carrier and the policyholder. 

The claims questions should include:

• What does the policy say?
  
• What does the policy cover and what does it exclude?
  
• What are the conditions of the structure (letting the structure speak for itself)? 
  
• What is the agreed-upon scope and the estimated cost to perform the work?
  

​Patronis says his office is going to "Be here, bringing the carriers back, and they will write checks onsite." His message is, "Come trust the government and the insurance companies. Don't exercise your rights to consult with a contractor, public adjuster, or a lawyer." What is the reason that a policyholder should not exercise their rights? According to the CFO of Florida, it will complicate the process of reaching an outcome that is “fair for everybody”. 

Bad actors should be called to account. Yet, the disbursement of consequences is as lopsided as the disbursement of funds from those holding the policy monies. As we have discussed before, if a policyholder is negligent or misrepresents the truth on their claim (i.e. fraud), they can be criminally prosecuted. If an insurance company delays, denies, or defends a claim, to the detriment of the policyholder, they are often civilly prosecuted at most. The consumer may go to jail while the carrier may only pay a fine. 

As David Princeton, author of the C&R Magazine segment “Dear David”, mentions in the closing segment of this video clip from The DYOJO Podcast,  "Is there something that needs to be done? Certainly. But I also think something needs to be done on the carrier side because at least on the public side there's scrutiny to look at that and on the carrier side there's no scrutiny." This video and this article are not dismissing the reality of predatory practices by contractors, public adjusters, and lawyers, but calling for equal scrutiny of the people claiming to be the solution. ​

The DYOJO Podcast Episode 100 will feature Bill Wilson, author of When Words Collide: Resolving Insurance Coverage and Claims Disputes, as well as David Princeton, Advocate Claim Service. 

​Tale number two is a case that came across the desk here at The DYOJO Podcast. It's called Conway Construction versus the city of Puyallup. Some of you may recognize that is the town that I currently reside in. It's just outside of Tacoma, which is just South of Seattle in Washington State.

Are you aware that when a contract is terminated, there's two terms under which it can be terminated:

• Terminated for cause which is by default of the contractor such as for defective performance
• Terminated for convenience, terminating the agreement at will provided it is not done in bad faith

These distinctions are something that all contractors should be aware of and ensure they are addressed in their contracts. There needs to be specific language that outlines what happens if the customer finds a defect or is unhappy with the performance of the contractor. Language should include a description of the notification process as well as how the contractor will respond.

​Usually the customer is responsible to notify the contractor of a defect in writing. The contractor will have X number of days to come up with a remedial plan that is agreeable to all parties. If the issue isn't resolved with the corrective actions,  or if the parties can't come to agreement, then the contract explains how the process will proceed. One of the most important things any contractor and customer can do to avoid litigation is to agree on a process for how disagreements will be resolved. In the event that the worst happens, how will both parties terminate the agreement with the least amount of collateral damage?

If the customer is going to terminate the contract for cause, there is a process. Every contractor should have a conversation with their client explaining that if they believe there's something wrong with the project, the contractor has first rights to try to remedy the issue. A quality contractor wants to make things right. If this process is outlined in the contractual agreement but the customer doesn't follow that, as the City of Puyallup didn't follow their own contract, then they may surrender their default claim.

Most contracts can be terminated at will, or for convenience, as long as no bad will is in play. So a customer doesn't need a reason to kick a contractor off of a job but they will need to follow the termination for convenience process outlined in the contract. Especially, as was in the case of Conway v. Puyallup, if the customer was the one that drafted the contract terms. 

This case reminds contractors and customers to be aware another item which is "the plain and ordinary meaning" of the words utilized in the contract. The Supreme Court of Washington emphasized when the contract terms are clear, the court will enforce it as written. As a contractor, it is important that a non-legal person can read and understand the contract.

Within the contract between Conway Construction and the City of Puyallup, it stated that a termination for convenience would entitle the contractor to greater damages than if it was terminated for cause. Under the agreement, a contractor terminated for convenience was entitled to be paid for all actual work performed until the date of termination. While the city terminated the contract claiming it was because of the contractors alleged breach of the agreement. When the trial judge reviewed the facts they ruled that the termination was not for cause.

Since the termination was not for cause, the contract terms converted the termination of Conway Construction to one for convenience. The Supreme Court of Washington ultimately affirmed that decision. The high court reached this conclusion simply by reviewing the plain language of the contract. The termination for cause could only be based on defective work if the contractor neglected or refused to correct rejected work. This mutual agreement further provided that upon 15 days written notice the contractor had to remedy the work to the satisfaction of the city. 

If the reader has been following our review of RJC vs. AISD, they will note that the facts of this Conway case vary significantly from those outlined in the Robert Jordan court documents.

• For contractors it is critical to know what's in the contract
• For contractors it is essential to document conversations during the course of the project
• For contractors it is essential to quickly respond to defect or default claims 

A contractor should document everything from the agreements that they make, the conversations that they have with any party to the project, and any essential communication related to defects, defaults, and remedies. A typical communication (or Comms) log, such as those we have recommended before on the podcast, might include:

• The date of an interaction 
• Who was present for the interaction, even if this is by phone or email 
• The content of the interaction - what did the customer say, what did the contractor say, what was agreed to, were any dates provided? 

The contractor in this case was able to document that it took steps to remedy the alleged defaults and reached out to the city to determine if the corrective efforts were sufficient. The city however, refused to meet with the contractor. The trial judge therefore found that the contractor was not neglecting or refusing to correct the defect and that the city's failure and refusal to meet with the contractor to discuss the remedial actions was unreasonable or made in bad faith which had the effect of making the termination one for convenience rather than one for cause.

The court stated their decision was thereby bound by the terms of the contract. ​

If you would like to be in person with people that are experts in the industry that have years and years of experience, and are sharing their stories, join us Thursday, January 26, 2023. The DYOJO is traveling to Naples, Florida, for the Andrew Ask Building Science Symposium (aka Winter Break 2023). Andrew Ask runs Tuesday and Wednesday, then separate from that but at the same location, Pete Consigli and Jon Isaacson will be putting together a one day workshop titled Lessons Learned from Storm Response and Hurricane Recovery. Be there or be square. ​

An unexpected winter vortex rips through Arlington, Texas in February 2021 causing incredible damage throughout the South. Contractor Erick Hernandez who works in the Houston area notes that in the days prior everything seemed normal. Like many Texans, Erick was scrambling to save his home from the effects of freezing conditions and widespread lack of power. ​

RJC has sued the Arlington Independent School District (AISD). So, I invited Bebo Crain (Jonesboro, AR) to review the court documents with me so that we can extract as many lessons to help contractors shorten their DANG learning curve as possible. As Bebo says, "It's hard to drive from the backseat after the ride is over," but we will do our best to share the many lessons that can be learned from this case.

​This upcoming series of episodes on The DYOJO Podcast will reveal information that will help contractors respond to everyday insurance claims, regional damage events (such as Winter Storm Uri from 2021), and catastrophe responses (such as Hurricane Ian in 2022). ​

IN THIS EPISODE: 
​
0:00 Episode 92 
1:50 Customer used contractors estimate to hire someone cheaper 
3:20 A new series - RJC vs. AISD 
5:55 RJC's YouTube video received over 33,000 views 
9:06 Winter Storm Uri timeline 
12:04 Input from Houston contractor Erick Hernandez 
15:13 "It's hard to drive from the backseat after the ride is over" - Bebo Crain 
18:05 Breaking down the response with Bebo 
22:51 Questions about insurance coverage during storm response

​Thursdays are for The DYOJO Podcast - helping contractors shorten their DANG learning curve for personal and professional development. ​