There's No Such Thing as a Free House
April 01, 2015 —
Megan McArdle – BloombergShould people be able to get a free house by refusing to pay their mortgage?
That's the question Florida has to answer. The housing crisis is over, and the housing market is healing itself, though slowly in some places. But a backlog of foreclosures still remains ... and it has been going on so long that some homes are now past the statute of limitations for collecting debt. Lawyers for the homeowners are arguing that this means they get to keep the house. Lawyers for the banks are, unsurprisingly, arguing that each month they fail to pay the mortgage payment starts the statutory clock anew.
Both arguments create problems if the courts endorse them. If failing to pay really restarted the clock every month, then there wouldn't be a statute of limitations on debt -- creditors could just keep sending you bills forever and dun you right up to the edge of your grave. There's a very good reason that we have statutes of limitations on most crimes and most debts: The law recognizes that our interests in justice and contract rights must be balanced against other considerations. People need to be able to plan their lives without decades-old problems coming back to bite them, and also, as cases age, they get harder and harder to prove as witnesses die, evidence gets lost and memories fade.
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Megan McArdle, BloombergMs. McArdle may be contacted at
mmcardle3@bloomberg.net
Out of the Black
May 30, 2022 —
John Drentlaw - Construction ExecutiveEven if you previously weren’t familiar with the term “black swan event,” you’ve likely become intimately familiar with what one looks like over the past two years. Coined by author Nassim Taleb in his book The Black Swan: The Impact of the Highly Improbable, the term refers to a rare, unpredictable event—perhaps, say, a pandemic—that has an extreme impact.
“Extreme” certainly seems to be an accurate description of the impact that the COVID-19 pandemic has had on the construction industry, at nearly every level. The Commercial Construction Index (CCI) fell from 74 to 56 during Q2 2020 and remained statistically unchanged through Q3 of that year. Recovery has been slow, with the CCI remaining eight points below pre-pandemic levels through the end of 2021. Prices for raw materials such as lumber and steel have been extremely volatile, reaching historic highs and dramatic lows. March and April of 2020 alone saw 1.1 million jobs disappear from the industry—roughly half as many jobs as were lost throughout the entire Great Recession (although many of these jobs have since returned).
While the industry has persevered through what should be the worst of these effects, many contractors and project owners are now wondering: How can we predict the next black swan event?
Reprinted courtesy of
John Drentlaw, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Home Builders and Developers Beware: SC Supreme Court Beats Up Hybrid Arbitration Clauses Mercilessly
November 15, 2022 —
Matthew Devries - Best Practices Construction LawToday’s guest post is by one of my favorite construction lawyers and friends, Burr partner Ned Nicholson in our Columbia, SC office. Ned regularly represents clients in construction defect and compensation claims, manufacturer/dealer disputes, and insurance coverage lawsuits. He is also a South Carolina certified mediator. Ned can be reached at nnicholson@burr.com or (803) 799-9800.
If you are a homebuilder, residential housing developer, construction industry insurer, or any one of the many participants in the industry providing affordable and decent housing for the citizens of South Carolina, you are already aware that South Carolina courts have for decades prioritized the promotion of consumer (i.e., home buyer) rights, usually at the expense of the providers of housing. There is nothing inherently wrong with that; the goal is laudable. But as in so many things, the implementation has been extremely costly for the residential construction industry as a savvy plaintiff’s bar has taken advantage of grey areas that are inevitably created in our judicial system.
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Matthew Devries, Burr & Forman LLPMr. Devries may be contacted at
mdevries@burr.com
Judge Gives Cintra Bid Protest of $9B Md. P3 Project Award New Life
March 21, 2022 —
Jim Parsons - Engineering News-RecordThe Maryland Dept. of Transportation will have to reconsider a protest lodged by the losing bidder for the initial phase of its $9-billion Express Lanes project, according to a Feb. 17 state circuit court judge's ruing. The decision likely stalls the state's ambitious plan to add capacity along portions of the I-495/Beltway and I-270 west of Washington, DC, using a progressive public-partnership.
Reprinted courtesy of
Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.com
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Wildfire Insurance Coverage Series, Part 6: Ensuring Availability of Insurance and State Regulations
August 03, 2022 —
Scott P. DeVries & Yosef Itkin - Hunton Insurance Recovery BlogBecause of the potential exposure associated with wildfires, many insurers have attempted to withdraw from the property coverage market in various states. In this post in the Blog’s Wildfire Insurance Coverage Series, we discuss the challenges businesses and individuals face in obtaining wildfire insurance coverage, and the regulatory scheme that is intended to help them secure adequate coverage.
Given the increasing exposures associated with climate change, numerous insurers have sought to withdraw from the wildfire-related coverage market or increase rates to a level where they are effectively unavailable. States have been resistant to their doing so. As one commentator reports, “[e]ven where insurers have tried to withdraw policies or raise rates to reduce climate-related liabilities, state regulators have forced them to provide affordable coverage anyway, simply subsidizing the cost of underwriting such a risk policy or, in some cases, offering it themselves.” At least 30 states have developed regulation, referred to as “Fair Access to Insurance Requirements” (FAIR), to ensure the continued availability of insurance. The FAIR plan provides a channel to insurance for property owners who would be stuck without any reasonable access to insurance without state intervention.
Reprinted courtesy of
Scott P. DeVries, Hunton Andrews Kurth and
Yosef Itkin, Hunton Andrews Kurth
Mr. DeVries may be contacted at sdevries@HuntonAK.com
Mr. Itkin may be contacted at yitkin@HuntonAK.com
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Biden Administration Issues Buy America Guidance for Federal Infrastructure Funds
April 25, 2022 —
Garret Murai - California Construction Law BlogAs you know, late this past year Congress passed and President Biden signed the largest infrastructure bill since President Franklin D. Roosevelt’s “New Deal” in 1933. The infrastructure bill provides $1.2 trillion in spending on the nations’ infrastructure over the next five years.
On Monday, the Biden Administration issued Initial Implementation Guidance requiring that, beginning May 14, 2022, materials paid for with infrastructure bill funds be made in America. The Guidance, which implements the “Buy America” provisions of the infrastructure bill requires that:
1. All iron and steel used in a project be produced in the United States;
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
Eastern District of Pennsylvania Confirms Carrier Owes No Duty to Defend Against Claims for Faulty Workmanship
April 05, 2021 —
Anthony L. Miscioscia & Marianne Bradley - White and Williams LLPOn March 17, 2021, the Eastern District of Pennsylvania issued its decision in Estate Chimney & Fireplace v. IFG Companies & Burlington Insurance Company, 2021 U.S. Dist. LEXIS 50360 (E.D. Pa. March 17, 2021), finding that an insurance carrier had no duty to defend its insured where the allegations in the underlying litigation involved claims of faulty workmanship.
Estates Chimney & Fireplace, LLC (Estates Chimney) had performed inspections and replaced chase covers for a number of chimneys in a condominium complex. Chase covers are pieces of metal, which are placed over chimneys in order to keep out environmental elements. Several condominium owners sued Estates Chimney, alleging that Estates Chimney had improperly installed, then improperly replaced, their chimney caps, which caused their chimneys to cease working properly. As a result, the underlying plaintiffs allegedly incurred costs to repair or replace the chimney caps and chimneys.
Estates Chimney sought coverage from its carrier, who denied coverage based upon its determination that the claims in the underlying lawsuits arose out of faulty workmanship, which did not result in damage to the property of a third party. Estates Chimney filed a declaratory judgment action, seeking a declaration that it was entitled to coverage under the policy. Both parties moved for summary judgment, and the Eastern District ruled in favor of the carrier.
Reprinted courtesy of
Anthony L. Miscioscia, White and Williams LLP and
Marianne Bradley, White and Williams LLP
Mr. Miscioscia may be contacted at misciosciaa@whiteandwilliams.com
Ms. Bradley may be contacted at bradleym@whiteandwilliams.com
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EPA Announces Decision to Retain Current Position on RCRA Regulation of Oil and Gas Production Wastes
June 03, 2019 —
Anthony B. Cavender - Gravel2GavelAfter much study, EPA has decided against changing its current RCRA Subtitle D rules affecting the state regulation of oil and gas exploration & production waste. Since 1988, EPA has determined that most such wastes should be regulated as only non-hazardous wastes subject to RCRA Subtitle D, and not the more onerous hazardous waste provisions of RCRA Subtitle C. (See the Regulatory Determination of Oil and Gas and Geothermal Exploration, Development and Production Wastes, 53 FR 25,446 (July 6,1988).)
As a result, under the Subtitle D rules, the primary regulators of such waste are state regulatory agencies, which follow the state plan non-hazardous waste guidelines developed by EPA. This regulatory disposition has proven to be fairly controversial, and it was recently challenged in a lawsuit filed in the U.S. District Court for the District of Columbia: Environmental Integrity Project, et al. v. McCarthy. To settle this lawsuit, EPA and the plaintiffs entered into a consent decree by which EPA was to make certain determinations about the future of the program after conducting an appropriate study. That study, Management of Exploration, Development and Production Wastes: Factors Informing a Decision on the Need for Regulatory Action, has been completed, and it concludes, after a fairly comprehensive review of these state regulatory programs, that “revisions to the federal regulations for the management of E&P wastes under Subtitle D of RCRA (40 CFR Part 257) are not necessary at this time.” In a statement released on April 23, 2019, EPA accepted these findings and promised that it would continue to work with states and other stakeholders to identify areas for improvement and to address emerging issues to ensure that exploration, development and production wastes “continue to be managed in a manner that is protective of human health and the environment.”
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
