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DIRECTORY AND CAPABILITIES

Homebuyers Get Break as Loan Rates Defy Fed Tapering: Mortgages

February 14, 2014 — Kathleen M. Howley – Bloomberg
Ashley Underwood is taking advantage of the unexpected drop in mortgage rates by rushing to buy her first home before they go up again. “I’m ready to cancel plans at a moment’s notice to go look at a house,” said Underwood, 27, who lives in Indianapolis, Indiana. “I didn’t expect to see rates falling again, and I want to lock in something before I lose out.” The drop in the last month proved forecasters wrong, said Douglas Duncan, chief economist of Fannie Mae in Washington. After the Federal Reserve announced in December that it would begin tapering purchases of mortgage-backed securities, all the major housing forecasters said rates would jump this quarter. Economists didn’t foresee that investors would react to the Fed’s retreat by moving money from emerging markets into U.S. Treasuries, driving down home-loan rates. Read the court decision
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Reprinted courtesy of Kathleen M. Howley, Bloomberg
Ms. Howley may be contacted at kmhowley@bloomberg.net

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Blue Gold: Critical Water for Critical Energy Materials

October 24, 2022 — Robert A. James & Ashleigh Myers - Gravel2Gavel Construction & Real Estate Law Blog
As demand increases for low-carbon technologies to power the energy transition, the acquisition of critical materials—so-called given their integral role in the transition of energy activities—is becoming increasingly important. As described in our previous post, such critical materials include rare earth elements (REE), lithium, nickel and platinum group metals. In short, the transition endeavors to reduce use of one non-renewable resource—fossil fuel—by significantly ramping up our use of other non-renewable resources. While critical material discussions have largely centered on the availability and economic extractability of the minerals themselves, Pillsbury is also counseling on the other resources needed to bring the materials to market at the scales required for our decarbonization goals. Chief among these resources is water. The extraction, processing and manufacture of critical materials into low-carbon technologies all require significant volumes of water. For example, up to 5,000 gallons of water are needed to produce one ton of lithium. Critical materials are often found in arid climates that are already experiencing water stress (such as the “lithium triangle” of Argentina, Bolivia and Chile, and copper in Chile), or in areas experiencing conflict and challenges to water development (such as cobalt production in the Democratic Republic of the Congo). In the U.S., development potential resides largely in the water-constrained western and southwestern states, such as Arizona (copper), California (REE), New Mexico (copper, REE), Texas (REE), Utah (magnesium, lithium, platinum, palladium, vanadium, copper), and Wyoming (REE, platinum, titanium, vanadium). Reprinted courtesy of Robert A. James, Pillsbury and Ashleigh Myers, Pillsbury Mr. James may be contacted at rob.james@pillsburylaw.com Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com Read the court decision
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What is a Personal Injury?

September 03, 2019 — Bremer Whyte Brown & O'Meara LLP
Essentially, a personal injury is when an individual is hurt during an accident. Whether driving on the road, walking down the street, or sitting in a chair, accidents happen. When there is an accident, medical treatment may be necessary. Individuals who sustain injuries usually seek compensation for their medical treatment and pain and suffering in the form of a personal injury lawsuit. Personal injury lawsuits can result from a variety of claims including negligence, strict liability, or intentional torts. Yet, for the most part, personal injury lawsuits tend to arise from a claim of negligence. The individual or entity injured in the accident, “Plaintiff”, files a lawsuit against the individual or entity, “Defendant” who allegedly caused harm. Personal injury lawsuits resulting from claims of negligence tend to have two main components: liability and damages. Yet, in order to prevail in a suit for negligence, a Plaintiff must demonstrate the following: (1) a legal duty to use due care, (2) a breach of that duty, (3) a reasonably close, causal connection between that breach and Plaintiff’s resulting injury, and (4) actual loss or damage to Plaintiff. Wylie v. Gresch (1987) 191 Cal.App.3d 412. First, a finding of negligence rests upon a determination that the actor has failed to perform a duty of care owed to the injured party. Ronald S. v. County of San Diego (1993) 16 Cal.App.4th 887. This means that an individual or entity must act reasonably to avoid injuring others. When an injury occurs, a Plaintiff will generally argue that an individual or entity breached a duty owed to them. Read the court decision
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Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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In South Carolina, Insurer's Denial of Liability Does Not Waive Attorney-Client Privilege for Bad Faith Claim

October 14, 2019 — Ashley L. Cooper & Bethany L. Barrese - Saxe Doernberger & Vita, P.C.
Determining the scope of discovery can be challenging, particularly when an insurance bad faith claim is involved. Courts often face the difficult decision of weighing the importance of preserving attorney-client privilege with the public policy rationale of protecting an insured against their insurer’s bad faith behavior. The Supreme Court of South Carolina recently recognized this dilemma by rejecting a hardline approach to bad faith discovery disputes and adopting a case-by-case analysis. The case, In re Mt. Hawley Ins. Co.,1 arose out of a construction defect claim. ContraVest Construction Company (“ContraVest”) constructed a development in South Carolina and was later sued for alleged defective construction. ContraVest sought coverage for the lawsuit from its insurers, including Mount Hawley Insurance Company (“Mount Hawley”), which had provided excess commercial liability insurance to ContraVest during the relevant timeframe. Mount Hawley denied the claim, which prompted ContraVest to sue it for bad faith, breach of contract, and unjust enrichment. Reprinted courtesy of Ashley L. Cooper, Saxe Doernberger & Vita, P.C. and Bethany L. Barrese, Saxe Doernberger & Vita, P.C. Ms. Cooper may be contacted at alc@sdvlaw.com Ms. Barrese may be contacted at blb@sdvlaw.com Read the court decision
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An Uncharted Frontier: Nevada First State to Prohibit Defense-Within-Limits Provisions

July 10, 2023 — Geoffrey B. Fehling & Andrew S. Koelz - Hunton Insurance Recovery Blog
Nevada recently became the first state to prohibit defense-within-limits provisions in liability insurance policies. Defense-within-limits provisions—resulting in what’s called “eroding” or “wasting” policies—reduce the policy’s applicable limit of insurance by amounts the insurer pays to defend the policyholder against a claim or suit. These provisions are commonly included in errors and omissions (E&O), directors and officers (D&O) and other management liability policies. This is in contrast to other policies, most commonly commercial general liability policies, which provide defense “outside of limits” where defense costs do not reduce the policy’s limit. Reprinted courtesy of Geoffrey B. Fehling, Hunton Andrews Kurth and Andrew S. Koelz, Hunton Andrews Kurth Mr. Fehling may be contacted at gfehling@HuntonAK.com Mr. Koelz may be contacted at akoelz@HuntonAK.com Read the court decision
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Jason Smith and Teddie Arnold Co-Author Updated “United States – Construction” Chapter in 2024 Legal 500: Country Comparative Guides

May 28, 2024 — Jason Smith & Edward (Teddie) Arnold - The Construction Seyt
Jason Smith and Teddie Arnold, partners in Seyfarth’s Washington, DC office, have co-authored an updated “United States – Construction” chapter in the 2024 edition of The Legal 500: Country Comparative Guides. Seyfarth continues to participate as an exclusive contributor for this comprehensive overview of construction-specific laws and regulations in the United States. Topics covered include, but are not limited to, requirements and obligations, permits and licencing, procurement, financing and security, and disputes, as well as insight and opinion on current challenges and opportunities. To access and download a copy of the chapter, click here. Reprinted courtesy of Jason N. Smith, Seyfarth and Edward V. Arnold, Seyfarth Mr. Smith may be contacted at jnsmith@seyfarth.com Mr. Arnold may be contacted at earnold@seyfarth.com Read the full story... Read the court decision
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When Construction Contracts Go Sideways in Bankruptcy

February 16, 2017 — Tracy Green - California Construction Law Blog
The contractor on a project files a bankruptcy case. How should the property owner and subcontractors proceed? When a party to a contract files bankruptcy, the other party’s actions are constrained by the bankruptcy code. Types of Bankruptcies The typical bankruptcy case involves a chapter 7 complete liquidation, chapter 13 reorganization for an individual, or a chapter 11 reorganization or liquidation. In a chapter 7 the business ceases to operate and a panel trustee is appointed immediately upon the filing of the case. The chapter 7 trustee’s duties are to liquidate assets for the benefit of creditors and to prosecute litigation that can result in assets for the creditors. In a chapter 13, the individual debtor continues to operate, and there is a trustee, but the trustee’s roll is limited to reviewing the chapter 13 plan and making sure that the plan is performed. In a chapter 11, the debtor retains control of its assets and continues to operate its business until a plan is confirmed. During the chapter 11 period before a plan is approved, the debtor will decide which contracts it wants to assume or reject, all while operating the company and preparing a plan. Read the court decision
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Reprinted courtesy of Tracy Green, Wendel Rosen Black & Dean LLP
Ms. Green may be contacted at tgreen@wendel.com

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Construction Defects in Home a Breach of Contract

September 09, 2011 — CDJ STAFF

The Supreme Court of North Dakota has ruled in Leno v. K & L Homes, affirming the verdict of the lower court. K & L Homes argued that district court had erred in several ways, including by refusing to instruct the jury on comparative fault, denying a request for inspection, and not allowing a defendant to testify on his observations during jury viewing.

The Lenos purchased a home constructed by K & L Homes, after which they alleged they found cracks, unevenness, and shifting, which they attributed to improper construction. They claimed negligence on the part of K & L Homes. K & L Homes responded that the Lenos were responsible for damage to the home. The Lenos dropped their negligence claim, arguing breach of contract and implied warranties.

Before the trial, after the discovery period had passed, K & L Homes requested to inspect the home. This was rejected by the court. Kelly Moldenhauer, the owner of K & L Homes sought to testify about his observations during the jury’s viewing of the house. The court denied this too. The jury found that K & L was in breach of contract and awarded damages to the Lenos.

The North Dakota Supreme Court noted that K & L Homes gave “warranties that the home had been built according to local building codes and laws, and that the house was fit for its particular purpose as a residence.” The court found that a defective home breached this warranty. Further, the home violated an implied warranty of fitness.

The district court had denied K & L’s request to inspect the home, as the discovery period had ended and it would not give the Lenos time to do further discovery of their own. At the time of the request, there was only twenty-two days before the trial. The Supreme Court ruled that this was not an abuse of discretion of the part of the district court.

The Lenos had requested that Moldenhauer’s testimony not be permitted, as it would “have the same effect as if the court had granted K & L Homes’ pretrial request for inspection.” K & L Homes agreed to this in court, replying, “okay.”

The decision affirms the judgment of the district court and the damages awarded to the Lenos by the jury.

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