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DIRECTORY AND CAPABILITIES

Mississippi Supreme Court Addresses Earth Movement Exclusion

December 09, 2019 — Anthony Hatzilabrou - Traub Lieberman
Recently, the Mississippi Supreme Court held that structural damages to the foundation of an insured’s home came within the earth movement exclusion in a homeowner’s policy, notwithstanding a provision in the policy which provided coverage for water damage resulting “from accidental discharge or overflow of water … from within … [p]lumbing, heating, air condition or household appliance.” In Mississippi Farm Bureau Cas. Ins. Co. v. Smith, 264 So. 3d 737 (Miss. 2019), the appellee, Smith, filed a lawsuit against her homeowner's insurance company, Mississippi Farm Bureau Casualty Insurance Company (“Farm Bureau”) for its refusal to pay for repairs to the foundation of Smith’s home. Smith alleged that the refusal to pay for repairs amounted to breach of contract and asserted claims for bad faith and tortious breach of contract. In response, Farm Bureau filed a motion for summary judgment on the basis of the policy’s earth-movement exclusion, which provided that Farm Bureau “did not insure for loss caused directly or indirectly by…Earth Movement…[which] means…[a]ny other earth movement including earth sinking, rising or shifting... caused by or resulting from human or animal forces.” Smith filed a cross-motion for partial summary judgment on the basis that the earth-movement exclusion did not preclude coverage because her insurance policy also contained a clause expressly covering water damage. Read the court decision
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Reprinted courtesy of Anthony Hatzilabrou, Traub Lieberman
Mr. Hatzilabrou may be contacted at thatzilabrou@tlsslaw.com

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Anthony Garasi, Jared Christensen and August Hotchkin are Recognized as Nevada Legal Elite

July 06, 2020 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Bremer Whyte Brown & O’Meara, LLP is proud to announce Partners Anthony Garasi and Jared Christensen in our Las Vegas office, along with Associate August Hotchkin in our Reno office are being recognized as Nevada Legal Elites in the Nevada Business Magazine. The Nevada Legal Elite list includes the top 4 percent of attorneys in the state broken down by location. To qualify, each nominee goes through an extensive verification process resulting in the top attorneys in the state, chosen by their peers. Upon the nomination process closing, each ballot is individually reviewed for eligibility and every voting attorney is verified with the State Bar of Nevada. Read the court decision
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Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Sweet News for Yum Yum Donuts: Lost Goodwill is Not an All or Nothing Proposition

October 07, 2019 — Josh Cohen - California Construction Law Blog
Last month a California Court of Appeals clarified that a property owner facing eminent domain is only required to prove partial loss of goodwill, not total loss of goodwill, to be entitled to a trial on the amount of goodwill lost. Yum Yum Donuts operated a shop in Los Angeles that was subject to eminent domain by the Los Angeles Metropolitan Transportation Authority (MTA) to make way for light railway track. At trial, Yum Yum sought loss of goodwill as part of its condemnation damages under Code of Civil Procedure section 1263.510. At trial the MTA’s expert testified that Yum Yum could have reduced its goodwill loss if it relocated to one of three alternative locations rather than simply closing the shop. But the expert conceded that even if Yum Yum had relocated, it would have lost some goodwill. Yum Yum refused to relocate, arguing that its relocation costs would render the move unprofitable. The trial court found that Yum Yum’s failure to mitigate its damages barred Yum Yum from having a jury trial to recover any goodwill damages. Read the court decision
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Reprinted courtesy of Josh Cohen, Wendel, Rosen, Black & Dean LLP
Mr. Cohen may be contacted at jcohen@wendel.com

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Montana Federal Court Holds that an Interior Department’s Federal Advisory Committee Was Improperly Reestablished

December 09, 2019 — Anthony B. Cavender - Gravel2Gavel
On August 13, 2019, in a case that may have an impact on the leasing of federal lands for energy development in the future, the U.S. District Court for the Missoula, Montana Division, issued a ruling in the case of Western Organization of Resource Councils v. Bernhardt, which involves the application of the Federal Advisory Committee Act (FACA) to the Department of the Interior’s Royalty Policy Committee. This advisory committee, initially established in 1995 to provide advice to the Secretary on issues related to the leasing of federal and Indian lands for energy and mineral resources production, is subject to the provisions of FACA, codified at 5 U.S.C. app. Sections 1-16. The plaintiffs challenged the operations of this advisory committee, which was reestablished for two years beginning in 2017, because it allegedly “acts in secret and works to advance the goals of only one interest: the extractive industries that profit from the development of public gas, oil, and coal.” More specifically, the plaintiffs alleged that this advisory committee violated FACA because: (a) it was not properly established as provided in the implementing GSA rules (which are located at 41 CFR Section 102-3); (b) did not provide public notice of its meetings and publicly disseminate its materials; (c) ensure that its membership was fairly balanced; and (d) failed to exercise independent judgment without inappropriate influences from special interests. Read the court decision
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Reprinted courtesy of Anthony B. Cavender, Pillsbury
Mr. Cavender may be contacted at anthony.cavender@pillsburylaw.com

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ALERT: COVID-19 / Coronavirus-Related Ransomware and Phishing Attacks

April 13, 2020 — Christopher E. Ballod & Sean B. Hoar - Digital Insights Lewis Brisbois' Data Privacy & Cybersecurity Blog
As with other events that attract societal attention – whether it be an international sporting event like the Olympics or a natural disaster like the Australian bush fires - criminals often utilize the events to exploit consumers’ fears and, in turn, compromise the cybersecurity of businesses nationwide. With the advent of the Coronavirus, criminals have begun to take advantage of what consumers expect to receive via email to conduct phishing attacks. Criminals are also expected to take advantage of millions of vulnerable remote connections from employee home networks to their corporate networks. According to Proofpoint Inc., a cybersecurity firm, the use of sophisticated Coronavirus-related “phishing” strategies has been on the rise since January, with new malicious email campaigns surfacing each day. These emails, which appear to come from legitimate organizations, contain content such as advice on combatting the Coronavirus, phony invoices for purchases of face masks and medical supplies, advertisements for products that allegedly treat the illness, and phony alerts from the World Health Organization (WHO) or Centers for Disease Control and Prevention (CDC). When the email recipients open these messages, they unknowingly release malware, which allows the attacker to gain access to their personal information and to compromise the security of their employers’ networks. The recent emergence of Coronavirus-related “phishing” schemes demonstrates that businesses must remain vigilant. Employees and their employers are particularly vulnerable now, in light of the novel nature of the Coronavirus, the paucity of information concerning the illness, and the rapid and significant manner in which it is spreading. Individuals are thirsty for information and advice, and are eager to take any action necessary to protect themselves and their families. Reprinted courtesy of Christopher E. Ballod, Lewis Brisbois and Sean B. Hoar, Lewis Brisbois Mr. Ballod may be contacted at Christopher.Ballod@lewisbrisbois.com Mr. Hoar may be contacted at Sean.Hoar@lewisbrisbois.com Read the court decision
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Hong Kong Popping Housing Bubbles London Can’t Handle

July 30, 2014 — Frederik Balfour – Bloomberg
Take a look at the world’s dizzying surges in the price of housing for 12 months at the end of June: London, up 20 percent. Manhattan, 18 percent. Sydney, 15.4 percent. Then there are Singapore and Hong Kong: down 3.7 percent and 0.6 percent. Prompted by concerns over potential property bubbles and affordability for the middle class, the governments of the two Asian cities have been reining in home prices by imposing measures including mortgage caps, taxes on property flippers, and levies on foreign buyers as high as 15 percent. Read the court decision
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Reprinted courtesy of Frederik Balfour, Bloomberg
Mr. Balfour may be contacted at fbalfour@bloomberg.net

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Considerations in Obtaining a Mechanic’s Lien in Maryland (Don’t try this at home)

February 23, 2016 — Christopher G. Hill – Construction Law Musings
For this week’s Guest Post Friday at Construction Law Musings I welcome Matthew Evans. Matt is the owner of Law Offices of Matthew S. Evans, III, LLC located in Annapolis, Maryland. He has practiced construction, real estate and land use law in Maryland and D.C. for thirteen years. Prior to opening his own firm in May 2011, Mr. Evans was a partner at a mid-sized firm in Anne Arundel County, Maryland. Mr. Evans lives in Historic Annapolis (only three short blocks from his office) with his wife Margaret, and three children, Matthew (5), Bo (4) and Peyton (2). Some of the most common calls I get are from irate contractor or subcontractor clients who have not been paid demanding that I “lien the property”. Many times after calming the client down, I determine, to their dismay, that they are not entitled to a mechanic’s lien. In Maryland, the mechanic’s lien law is driven by statute, which contains specific requirements which must be met before the client is entitled to a lien. The first question is whether the contractor or subcontractor is entitled to a lien for the work performed. Under Maryland law, “every building erected and every building repaired, rebuilt, or improved to the extent of 15 percent of its value is subject to establishment of a lien…for the payment of all debts.” It’s easy when dealing with new construction. No matter how small your portion of the work, the property is subject to the establishment of a lien. It is more difficult to determine entitlement when there is either a total or partial renovation or other work. The question becomes how do you determine the value of the building, and whether it has been improved “to the extent of 15 percent of its value.” Believe me, I have seen creative and some not so creative methods of calculation used by counsel to prove that certain work does or does not meet the requirement. Read the court decision
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Reprinted courtesy of Christopher G. Hill, Law Office of Christopher G. Hill, PC
Mr. Hill may be contacted at chrisghill@constructionlawva.com

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New Jersey Appellate Court Reinstates Asbestos Action

March 05, 2015 — Beverley BevenFlorez-CDJ STAFF
According to the New Jersey Law Journal, an asbestos case involving “a long-time ship worker who died of mesothelioma was reinstated by a New Jersey appellate court on March 3.” A lower court judge had “dismissed the claims against them based on his view that the evidence presented by the plaintiff was insufficient to show that the ships on which he worked contained asbestos and that he was exposed to it.” However, the appeals judges disagreed. “Although the summary judgment motion was decided on a very narrow ground, we conclude that the record as a whole establishes a triable issue as to whether plaintiff was exposed to asbestos or asbestos-containing products on defendant’s dredges,” judges Susan Maven and Henry Carroll stated, according to the New Jersey Law Journal. Read the court decision
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Reprinted courtesy of

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