One of the biggest risks contractors and subcontractors face on construction projects is liability for consequential damages, although many of them may not even know about that risk, much less understand it. Consequential damages are damages which flow indirectly from a breach of contract and are typically related to delays in performance and delays in completion of a project. Such damages can be huge. In fact, it can represent a bet-the-company risk. However, many contractors and subcontractors enter into contracts every day without even knowing the risks they face with respect to such damages. It is important to ensure that your clients know, understand and evaluate this risk on every project. Click here to read the article.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Constructionhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngConstruction2020-12-03 11:42:492020-12-03 11:42:49Consequential Damages in Construction – The Silent Killer
Is there a member of your firm or a fellow attorney who should be recognized for his or her pro bono service this year? Have you participated in pro bono projects throughout the year? If so, please consider submitting a nomination for the 2020 Bankruptcy Pro Bono Award!
The Pro Bono Committee for the Bankruptcy Law Section is now seeking nominations for the 2020 Pro Bono Award to be presented at the Section’s upcoming annual meeting. The outstanding individual achievement award will be given to at least one Bankruptcy Section member who has actively participated in pro bono activities during 2020. All nominations must be submitted by Thursday, Dec. 31, 2020. Please see the nomination form for more information. Self- and third-party nominations will be accepted. We look forward to honoring this year’s award winner!
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Bankruptcyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngBankruptcy2020-12-03 11:29:082020-12-03 11:52:21Seeking Nominations for the 2020 Bankruptcy Pro Bono Award
Equitable subrogation as a remedy has been an established common law doctrine in the United States for over a century.[i] Recognized as a “legal fiction,” equitable subrogation arises in situations “whereby an obligation, extinguished by a payment made by a third [party], is treated as still subsisting for the benefit of this third [party], so that by means of it one creditor is substituted to the rights, remedies, and securities of another.”[ii] Equitable subrogation is used “only to further an equitable result” and its use “will be denied where it would lead to an uncontemplated and inequitable result or where it would work any injustice to the right of others.”[iii] The doctrine is highly favored by courts and given a liberal application due to it being “sufficiently elastic to meet the ends of justice.”[iv] It is now applied in a variety of legal contexts and in many jurisdictions across the United States, including North Carolina. Most commonly, the doctrine is invoked in mortgage priority disputes that arise during mortgage foreclosure actions.[v] In November of 2019, a divided panel of the North Carolina Court of Appeals in U.S. Bank Nat’l Ass’n v. Estate of Wood held for the first time that a party in North Carolina could assert the doctrine of equitable subrogation in the real estate purchase transaction context, resulting in a novel expansion of the doctrine under North Carolina law.[vi] Read more
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00RealPropertyhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngRealProperty2020-12-02 14:48:182021-01-04 11:33:43Note: Consistency is Key: The Court of Appeals of North Carolina Extends Equitable Subrogation in Real Estate Purchase Transactions in U.S. Bank Nat’l Ass’n v. Estate of Wood
A U.S. District Court decision issued on Nov. 25, 2020, is a good illustration of the rule that if a Complaint implicates the possibility of coverage, the insurer’s duty to defend cannot be eliminated by extrinsic evidence that demonstrates no coverage, and if it is determined that the insurer’s refusal to defend was unjustified, it will be obligated to pay the underlying judgment. In Craige v. Gov’t Employees Ins. Co., 1:19-cv-408 (M.D.N.C. 2020), two insurers refused to defend based on their investigation that the defendant driver did not qualify as an insured of the policies because he was not a resident of the named insureds’ household. The Court ruled that the insurers are now liable for the underlying judgment against the driver because the Complaint and available evidence put the insurers on notice of a possibility of coverage.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00InsuranceLawhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngInsuranceLaw2020-12-02 14:47:322020-12-02 16:05:00Duty to Defend Triggered by Extrinsic Evidence
I love when the new year rolls around. I know that time really has no boundaries, and December 31 rolls effortlessly into January 1 with no fireworks of its own accord. But the thought of starting anew is exhilarating to many people, and the New Year’s resolutions that everyone talks about are a result of this excitement. It is as if we are shedding off the old and physically stepping into a new year. In January of 2020, I was enrolled in a Bachelor of Science program at the University of North Carolina at Pembroke, looking to buy a house, and had sworn off wine and any kind of unhealthy food. I had such high hopes for the coming year.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Paralegalshttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngParalegals2020-12-02 13:13:132020-12-10 11:38:31The Year of the Mask
The Constitutional Rights & Responsibilities Section annual CLE is right around the corner, and there is still time to register. There is a stellar lineup of speakers and panels that makes this an event you should not miss. The topics include:
2020 Cases from the North Carolina Supreme Court | Former Justice Edmunds Jr., Former Justice Jackson and Shelton
Listen as a panel reviews 2020 cases of significance from the North Carolina Supreme Court.
Beginning Jan. 1, 2021, the North Carolina appellate courts will use the universal citation method for judicial opinions and publications. Each opinion filed by the Supreme Court of North Carolina and the North Carolina Court of Appeals will receive a unique opinion number and include paragraph numbers. The universal citation method increases access to judicial opinions by providing an identifying number independent from any third-party publisher’s volume of cases and making it easier to find opinions online. Universal citations will be used as parallel citations only, and citations to the official printed reporters will remain the same.
You can read more about the Supreme Court’s order adopting the universal citation method here and here.
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Appellatehttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngAppellate2020-11-24 12:42:352020-11-24 12:42:35Supreme Court of North Carolina Announces Move to Universal Citation Method
Unfortunately, prognostications that COVID-19 would disappear post-election did not turn out to be true. As House Stark would say, winter is coming. Everyone seems to be preparing, including Gov. Cooper, who on Monday mandated that masks must be worn indoors whenever someone not in the same household is present and outdoors whenever physical distancing isn’t possible.
Our counties’ court staff, who have already been diligently working to keep courtrooms safe and the wheels of justice turning, have seen Chief Justice Beasley’s emergency directives extended, and in some counties, have issued new updates regarding courthouse procedure and courtroom accessibility. For instance, in Wake County, directives have been issued reducing civil court and clerk operations for Thanksgiving week and beyond, including eliminating all in-person civil superior court hearings through 12/31. Criminal trials have resumed and will continue, but with a significant different look and feel (click here for WRAL’s peek into the courtroom, and here for a picture of the jury packet being given to jurors). A bulleted outline of Wake County’s courthouse operation is below. Read more
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00Litigationhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngLitigation2020-11-24 10:38:252020-11-24 10:38:25From Orange to Red: The COVID-19 Wave, Being Prepared, and Being Safe
Ashley Coghill is now an associate attorney at Cranfill Sumner & Hartzog LLP (CSH Law). She practices in the firm’s Wilmington office. She focuses on professional liability, admiralty & maritime, and construction law. Before joining CSH Law, Coghill practiced in civil litigation at a firm in Durham, where she worked for five years. She also was a pre-litigation support analyst. Coghill has volunteer experience providing legal services for North Carolina farmers. Coghill graduated from Campbell Law School and received a Bachelor of Arts from Appalachian State University.
Harrison Wicker is now an associate attorney with Safran Law Offices. Before he joined the firm, he was an intern with Nelson Mullins PLLC and Safran Law Offices. He also has experience working as an econometrics analyst with the North Carolina Department of Instruction. Wicker graduated from the University of North Carolina at Chapel Hill with a degree in economics and from Campbell Law School with a Juris Doctorate.
Poyner Spruill has named Cheslie Kryst as the firm’s first Diversity Advisor. Kryst will help to advance the firm’s diversity and inclusion development. She will work with the Diversity and Inclusion Committee on initiatives and recruiting efforts. Kryst was a member of the firm’s litigation team, and her focus was on complex civil litigation. She was selected as Miss USA 2019. Kryst earned her Bachelor of Science from the Honors College at the University of South Carolina, her MBA from Wake Forest University, and her Juris Doctorate from Wake Forest University School of Law.
The Minorities in the Profession (MIP) Committee recently hosted its annual Attorney-Student Networking Social on Wednesday, Oct. 28. Historically, this social is hosted by one of the North Carolina law schools and serves as MIP’s kickoff reception for the 2020-2021 bar year. The goal is to connect MIP members with one another and introduce diverse, future member law students to the Committee. This year’s event presented a unique challenge to organizers. How do you foster an organic, in-person networking event in a virtual setting? Fortunately, MIP Co-Chairs and event organizers, Jasmine McGhee and LaToya Powell, were up for the challenge!
https://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00NCBA MIPhttps://ncbarblogprod.wpengine.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngNCBA MIP2020-11-23 16:05:122020-11-23 17:34:52Virtual Networking - Connecting Diverse Law Students and Attorneys
Consequential Damages in Construction – The Silent Killer
Construction Law SectionOne of the biggest risks contractors and subcontractors face on construction projects is liability for consequential damages, although many of them may not even know about that risk, much less understand it. Consequential damages are damages which flow indirectly from a breach of contract and are typically related to delays in performance and delays in completion of a project. Such damages can be huge. In fact, it can represent a bet-the-company risk. However, many contractors and subcontractors enter into contracts every day without even knowing the risks they face with respect to such damages. It is important to ensure that your clients know, understand and evaluate this risk on every project. Click here to read the article.
Seeking Nominations for the 2020 Bankruptcy Pro Bono Award
BankruptcyIs there a member of your firm or a fellow attorney who should be recognized for his or her pro bono service this year? Have you participated in pro bono projects throughout the year? If so, please consider submitting a nomination for the 2020 Bankruptcy Pro Bono Award!
The Pro Bono Committee for the Bankruptcy Law Section is now seeking nominations for the 2020 Pro Bono Award to be presented at the Section’s upcoming annual meeting. The outstanding individual achievement award will be given to at least one Bankruptcy Section member who has actively participated in pro bono activities during 2020. All nominations must be submitted by Thursday, Dec. 31, 2020. Please see the nomination form for more information. Self- and third-party nominations will be accepted. We look forward to honoring this year’s award winner!
Read more
Note: Consistency is Key: The Court of Appeals of North Carolina Extends Equitable Subrogation in Real Estate Purchase Transactions in U.S. Bank Nat’l Ass’n v. Estate of Wood
Real PropertyI. Introduction
Equitable subrogation as a remedy has been an established common law doctrine in the United States for over a century.[i] Recognized as a “legal fiction,” equitable subrogation arises in situations “whereby an obligation, extinguished by a payment made by a third [party], is treated as still subsisting for the benefit of this third [party], so that by means of it one creditor is substituted to the rights, remedies, and securities of another.”[ii] Equitable subrogation is used “only to further an equitable result” and its use “will be denied where it would lead to an uncontemplated and inequitable result or where it would work any injustice to the right of others.”[iii] The doctrine is highly favored by courts and given a liberal application due to it being “sufficiently elastic to meet the ends of justice.”[iv] It is now applied in a variety of legal contexts and in many jurisdictions across the United States, including North Carolina. Most commonly, the doctrine is invoked in mortgage priority disputes that arise during mortgage foreclosure actions.[v] In November of 2019, a divided panel of the North Carolina Court of Appeals in U.S. Bank Nat’l Ass’n v. Estate of Wood held for the first time that a party in North Carolina could assert the doctrine of equitable subrogation in the real estate purchase transaction context, resulting in a novel expansion of the doctrine under North Carolina law.[vi]
Read more
Duty to Defend Triggered by Extrinsic Evidence
Insurance Law SectionA U.S. District Court decision issued on Nov. 25, 2020, is a good illustration of the rule that if a Complaint implicates the possibility of coverage, the insurer’s duty to defend cannot be eliminated by extrinsic evidence that demonstrates no coverage, and if it is determined that the insurer’s refusal to defend was unjustified, it will be obligated to pay the underlying judgment. In Craige v. Gov’t Employees Ins. Co., 1:19-cv-408 (M.D.N.C. 2020), two insurers refused to defend based on their investigation that the defendant driver did not qualify as an insured of the policies because he was not a resident of the named insureds’ household. The Court ruled that the insurers are now liable for the underlying judgment against the driver because the Complaint and available evidence put the insurers on notice of a possibility of coverage.
Read more
The Year of the Mask
Paralegal DivisionI love when the new year rolls around. I know that time really has no boundaries, and December 31 rolls effortlessly into January 1 with no fireworks of its own accord. But the thought of starting anew is exhilarating to many people, and the New Year’s resolutions that everyone talks about are a result of this excitement. It is as if we are shedding off the old and physically stepping into a new year. In January of 2020, I was enrolled in a Bachelor of Science program at the University of North Carolina at Pembroke, looking to buy a house, and had sworn off wine and any kind of unhealthy food. I had such high hopes for the coming year.
Read more
Last Chance for Constitutional Romance, Dec. 3, 2020!
Constitutional Rights & Responsibilities Section“COVID-19 v. The Constitution: The New Normal?” Don’t miss it!
The Constitutional Rights & Responsibilities Section annual CLE is right around the corner, and there is still time to register. There is a stellar lineup of speakers and panels that makes this an event you should not miss. The topics include:
2020 Cases from the North Carolina Supreme Court | Former Justice Edmunds Jr., Former Justice Jackson and Shelton
Listen as a panel reviews 2020 cases of significance from the North Carolina Supreme Court.
Read more
Supreme Court of North Carolina Announces Move to Universal Citation Method
Appellate PracticeBeginning Jan. 1, 2021, the North Carolina appellate courts will use the universal citation method for judicial opinions and publications. Each opinion filed by the Supreme Court of North Carolina and the North Carolina Court of Appeals will receive a unique opinion number and include paragraph numbers. The universal citation method increases access to judicial opinions by providing an identifying number independent from any third-party publisher’s volume of cases and making it easier to find opinions online. Universal citations will be used as parallel citations only, and citations to the official printed reporters will remain the same.
You can read more about the Supreme Court’s order adopting the universal citation method here and here.
From Orange to Red: The COVID-19 Wave, Being Prepared, and Being Safe
Litigation SectionUnfortunately, prognostications that COVID-19 would disappear post-election did not turn out to be true. As House Stark would say, winter is coming. Everyone seems to be preparing, including Gov. Cooper, who on Monday mandated that masks must be worn indoors whenever someone not in the same household is present and outdoors whenever physical distancing isn’t possible.
Our counties’ court staff, who have already been diligently working to keep courtrooms safe and the wheels of justice turning, have seen Chief Justice Beasley’s emergency directives extended, and in some counties, have issued new updates regarding courthouse procedure and courtroom accessibility. For instance, in Wake County, directives have been issued reducing civil court and clerk operations for Thanksgiving week and beyond, including eliminating all in-person civil superior court hearings through 12/31. Criminal trials have resumed and will continue, but with a significant different look and feel (click here for WRAL’s peek into the courtroom, and here for a picture of the jury packet being given to jurors). A bulleted outline of Wake County’s courthouse operation is below.
Read more
Checking In: Nov. 24, 2020
Checking InCompiled by Jessica Junqueira
New Hires and Appointment
Ashley Coghill is now an associate attorney at Cranfill Sumner & Hartzog LLP (CSH Law). She practices in the firm’s Wilmington office. She focuses on professional liability, admiralty & maritime, and construction law. Before joining CSH Law, Coghill practiced in civil litigation at a firm in Durham, where she worked for five years. She also was a pre-litigation support analyst. Coghill has volunteer experience providing legal services for North Carolina farmers. Coghill graduated from Campbell Law School and received a Bachelor of Arts from Appalachian State University.
Harrison Wicker is now an associate attorney with Safran Law Offices. Before he joined the firm, he was an intern with Nelson Mullins PLLC and Safran Law Offices. He also has experience working as an econometrics analyst with the North Carolina Department of Instruction. Wicker graduated from the University of North Carolina at Chapel Hill with a degree in economics and from Campbell Law School with a Juris Doctorate.
Poyner Spruill has named Cheslie Kryst as the firm’s first Diversity Advisor. Kryst will help to advance the firm’s diversity and inclusion development. She will work with the Diversity and Inclusion Committee on initiatives and recruiting efforts. Kryst was a member of the firm’s litigation team, and her focus was on complex civil litigation. She was selected as Miss USA 2019. Kryst earned her Bachelor of Science from the Honors College at the University of South Carolina, her MBA from Wake Forest University, and her Juris Doctorate from Wake Forest University School of Law.
Read more
Virtual Networking – Connecting Diverse Law Students and Attorneys
Minorities In the ProfessionThe Minorities in the Profession (MIP) Committee recently hosted its annual Attorney-Student Networking Social on Wednesday, Oct. 28. Historically, this social is hosted by one of the North Carolina law schools and serves as MIP’s kickoff reception for the 2020-2021 bar year. The goal is to connect MIP members with one another and introduce diverse, future member law students to the Committee. This year’s event presented a unique challenge to organizers. How do you foster an organic, in-person networking event in a virtual setting? Fortunately, MIP Co-Chairs and event organizers, Jasmine McGhee and LaToya Powell, were up for the challenge!
Read more