CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - MONDAY, OCTOBER 20, 2025

Mystery puzzle house

Despite similar legal allegations and factual predicates, the outcomes may differ for these two tracts of land.

Shiloh and Vallejo: The DOI Tale of Two Properties

October 20, 2025
Heidi McNeil Staudenmaier & Caitlin Vanderkarr - Snell & Wilmer

California courts have certainly been busy as of late. In particular, challenges abound as to the Department of the Interior (the DOI) and its decisions to take certain parcels of land into trust for the purpose of rendering such parcels eligible for gaming activities by certain California tribes.

The DOI Shiloh Parcel Dispute
The Shiloh parcel, a tract of land the DOI previously approved as land taken into trust for gaming purposes under the restored lands exception of the Indian Gaming Regulatory Act (IGRA) on behalf of the Koi Nation of Northern California (The Koi), has been the subject of considerable controversy.

Reprinted courtesy of Heidi McNeil Staudenmaier, Snell & Wilmer and Caitlin Vanderkarr, Snell & Wilmer

Ms. Staudenmaier may be contacted at hstaudenmaier@swlaw.com
Ms. Vanderkarr may be contacted at cvanderkarr@swlaw.com

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CDJ NEWS THIS WEEK



Two men and one woman wearing superhero capes

Each year, no more than 5 percent of the lawyers in the region (and 2.5 percent for Rising Stars) are selected by the research team at Super Lawyers to receive this honor.

Five Kahana Feld Attorneys Recognized in 2025 Upstate New York Super Lawyers®

October 20, 2025 — Eva Paulson - Kahana Feld

NEW YORK - September 29, 2025 - Kahana Feld is pleased to announce that Eric Bernhardt, Marc Schulz, and Alice A. Trueman were included in the 2025 edition of Upstate New York Super Lawyers, and Adam Amirault and Marina Barci were selected to the 2025 Upstate New York Rising Stars list.

Eric Bernhardt was awarded for his work in the Appellate practice area. Admitted in New York and California, Bernhardt is a partner in the firm’s Buffalo, NY office, and a member of Kahana Feld’s National Appellate Litigation & Consulting Group, as well as the New York general litigation team. His practice encompasses multiple types of litigation including the defense of New York Labor Law, construction, product liability, trucking, automobile accident, and premises liability cases.

Reprinted courtesy of Eva Paulson, Kahana Feld

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Compass

Changes are coming, and contractors and their employees alike should know what lies ahead and understand how to navigate the changes.

Noncompete Agreements: How to Navigate the Changing Landscape

October 20, 2025 — Kellie M. Ros - ConsensusDocs

Contractors who care about protecting proprietary company information and attracting and retaining high-quality employees (all contractors) should consider making noncompete agreements a part of their normal business practices. A recent failed attempt by the federal government to completely ban noncompetes reignited the contentious debate about the balance between freedom of contract versus freedom to work, and states have now put the issue at the forefront of their legislative agendas. Changes are coming, and contractors and their employees alike should know what lies ahead and understand how to navigate the changes.

Implications of Noncompetes in Construction
Noncompetes or noncompetition agreements affect nearly one in five working adults in the United States. A noncompete agreement is just what it sounds like - it’s an agreement between an employer and their employee where the employee agrees not to compete with their employer once their employment ends. In essence, the agreement restricts the employee from immediately joining a competing business or starting a competing business after leaving their employer.

Ms. Ros may be contacted at kros@pecklaw.com

Reprinted courtesy of Kellie M. Ros, Peckar & Abramson, P.C.

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Question marks above woman

When does your contract need a survival clause?

When Is a Survival Clause Absolutely Necessary?

October 20, 2025 — Scott L. Baker - Los Angeles Litigation Blog

Beginnings and endings in the business world are delicate things. Whether initiating a business deal and partnership or terminating an employee, business owners must take great care to secure their business and adhere to California law.

A contract will inform and outline these business relationships, from beginning to end. However, just because a contract ends does not mean the terms included in it should. That is when a survival clause will be critical.

What are the Basics of a Survival Clause?
As discussed above - and in a previous blog post - a survival clause defines what terms of a contract will continue to be enforced even after a contract ends.

Mr. Baker may be contacted at slb@bakerslaw.com

Reprinted courtesy of Scott L. Baker, Baker & Associates

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AI and Human Handshake

At its core, construction technology is about making us more human, not less.

'Time to Be Human': Paul Doherty Talks Tech and Architecture

October 20, 2025 — Maggie Murphy - Construction Executive

Paul Doherty has worn more hats than most in the built environment. Trained as an architect in Manhattan, he detoured into technology early in his career - designing trade show booths for IBM in the late 1980s, back when Apple was still an upstart. That experience sparked a revelation: Computer companies, with their networks of component suppliers, looked a lot like general contractors managing subcontractors.

Today, Doherty is president and CEO of the Digit Group, advising governments and developers worldwide on smart cities and emerging technologies. His work touches everything from blockchain-enabled smart contracts to AI agents, robotics and even the role of cultural anthropology in city design.

In a recent conversation with Construction Executive, Doherty explains why he believes buildings are “computers we can live in,” how blockchain might finally deliver the trust construction contracts need and why small contractors shouldn’t be intimidated by cutting-edge tech. Above all, he stresses, technology should give people time back. Time to walk the site instead of sit in the trailer. Time to have better conversations with clients, coworkers and communities. Time to be human.

Reprinted courtesy of Maggie Murphy, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

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Woman holding up question mark sign

After the project is completed, the real process begins: discussions, mediation, arbitration or litigation?

Court or Arbitration? Why Contractors Can’t Afford to Get this Wrong

October 13, 2025 — Matthew DeVries - Best Practices Construction Law

As a construction litigation lawyer, dispute resolution is a recurring issue. It starts before the project begins at the time of contract negotiation, where the parties decide whether to require litigation or arbitration of their disputes. During project performance, disputes can often be addressed formally or informally. And after the project is completed, the real process begins: discussions, mediation, arbitration or litigation?

The Tennessee Court of Appeals recently decided a case that shows how arbitration and litigation can overlap. In Carbon Fiber Recycling, LLC v. Spahn (Oct. 2, 2025), a Tennessee company sued one of its members for misusing confidential information. The company asked the court for damages, an injunction, and to expel the member from the business. The trial court dismissed the case, reasoning that the operating agreement required arbitration in Delaware.

On appeal, the court agreed in part and disagreed in part. It held that the claims for damages and expulsion had to go to arbitration because of the contract language. But it also held that the trial court was wrong to dissolve the temporary restraining order. Even though arbitration was required, the company could still go to court for injunctive relief to stop ongoing harm while the arbitration process moved forward.

Mr. DeVries may be contacted at mdevries@buchalter.com

Reprinted courtesy of Matthew DeVries, Buchalter

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Roof damage

The insureds claimed their home was damaged in a wind and hail storm.

Insurer Disposes of Bad Faith Claim on Summary Judgment

October 13, 2025 — Tred R. Eyerly - Insurance Law Hawaii

The magistrate judge recommended that the insurer's motion for summary judgment regarding the insured's bad faith claims be granted. Thornton v. HJB State Farm Lloyds, 2025 U.S. Dist. LEXIS 151342 (W.D. Texas Aug. 5, 2025).

The insureds claimed their home was damaged in a wind and hail storm. A claim was submitted and State Farm inspected a couple of days later. The inspection report indicated neither wind nor hail damage to the roof's shingles, but instead noted wear and tear and general deterioration. The report did note "small dents'" on a single vent which was consistent with hail damage. State Farm did not inspect the interior the insureds' home. The insureds verbally described water damage in the kitchen and master bedroom.

State Farm denied the claim. The only covered losses were the dents to the single roof vent and the water damage to the kitchen and bedroom State Farm estimated the replacement cost value (RCV) for these losses was $2,541.81, less that the insureds' deductible. State Farm further stated that the remaining damage resulted from rot and deterioration, neither of which were covered losses under the policy.

Mr. Eyerly may be contacted at te@hawaiilawyer.com

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

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Man with hand raised in Don't or Stop gesture

There is arbitral immunity and if you were allowed to sue an arbitrator (or judge), it would open up Pandora’s box in a huge negative way.

Quick Note: Don’t Sue Your Arbitrator

October 13, 2025 — David Adelstein - Florida Construction Legal Updates

As you know from prior posts, arbitration is a creature of contract. This means if you want arbitration to resolve your disputes, then include a binding arbitration provision in your contract. If you don’t want to arbitrate disputes, then do NOT include a binding arbitration provision in your contract. But whether you arbitrate or litigate, you may not like the arbitrator or judge that presides over your case. And, you may not like the outcome or rulings made during the course of the dispute. This happens. However, this does NOT mean you can sue an arbitrator (or judge). There is arbitral immunity and if you were allowed to sue an arbitrator (or judge), it would open up Pandora’s box in a huge negative way. In a recent case, discussed here, a party sued an arbitrator. This was quickly disposed of on appeal because of arbitral immunity. Don’t be this party. If this concerns you, i.e., the person presiding over your case, then don’t agree to arbitrate, which does not have appellate rights. Agree to litigation and make it a dealmaker provision when negotiating your contracts.

Mr. Adelstein may be contacted at dma@kirwinnorris.com

Reprinted courtesy of David Adelstein, Kirwin Norris

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Rewrite blocks

The process for submitting a claim to the Contracting Officer and appealing a Final Decision remains the same, with fewer words and less confusion.

Executive Order 14275: Restoring Common Sense to Federal Procurement

October 13, 2025 — Gravel2Gavel Team - Gravel2Gavel Construction & Real Estate Law Blog

Under the President’s Executive Order 14275: Restoring Common Sense to Federal Procurement, the government is undertaking a comprehensive overhaul of the Federal Acquisition Regulation (FAR). Led by the Office of Federal Procurement Policy (OFPP) and the Federal Acquisition Regulatory Council (FAR Council), the initiative aims to “return the FAR to its statutory roots,” regulate in plain language, and remove superfluous words and references. On August 27, the FAR Council released its revisions to FAR Part 33, which addresses Bid Protests, Contract Claims and Appeals of Contract Claims. We completed our deep dive into the Subpart 33.2 portion of the rewrite, which addresses claims and appeals. Construction companies that perform government contracts should welcome the changes rather than fear them.

Reprinted courtesy of Pillsbury

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Workers compensation

Through investigation and extensive discovery, it was learned that the plaintiffs initially opened a workers’ compensation claim for the incident but decided not to continue with providing the appropriate information to pursue the claim.

Los Angeles Team Secures Summary Judgment for Client in Wrongful Death Lawsuit over Construction Incident

October 13, 2025 — Lewis Brisbois Newsroom

Los Angeles, Calif. (August 25, 2025) - Los Angeles Partner Heather Hamby and Orange County Partner Steven Gatley recently secured summary judgment in favor of an owner, property developer and project holding company, in a wrongful death lawsuit involving a construction project incident. The Los Angeles Superior Court judge found that there were no triable issues of fact concerning whether or not workers’ compensation coverage would cover the incident.

The lawsuit involved the claims of three plaintiffs, the children and dependents of the decedent, who alleged that the defendants were liable for the severe jobsite injuries and eventual death of their father from the injuries when lumbar beams fell on him while he was working at defendants’ jobsite. The plaintiffs argued that the workers’ compensation exclusivity doctrine did not apply to the workplace incident because the decedent was an independent contractor. They argued that the decedent used his own tools at work, was not paid through payroll, and that there was no workers’ compensation coverage available because it was initially denied when the claim was opened.

Reprinted courtesy of Lewis Brisbois

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California state capitol

The implementation of SB 61 marks a significant shift in risk allocation and cash management for owners, developers, contractors, and subcontractors in California.

California’s SB 61: New Limits on Retention Payments in Private Construction Contracts

October 13, 2025 — Erinn Contreras & Julia Anderson - Construction & Infrastructure Law Blog

Retention payments are a longstanding practice in construction contracts, serving as a form of financial security for project owners to ensure proper and timely completion of work. It is typical for Owners in private work contracts to withhold up to ten percent (10%) from each payment owed to contractors and subcontractors. While this practice was intended to guarantee quality and incentivize completion, it often resulted in considerable financial stress for contractors and subcontractors, particularly in an industry characterized by slim profit margins and steady ongoing obligations for payroll, benefits, and material costs. Recognizing these challenges, California legislators introduced and recently passed Senate Bill 61 (“SB 61”) to update retention laws for private construction projects, with the stated goal of fostering greater fairness and financial stability across the construction industry.

SB 61’s Modifications to Retention Rules
Under existing California law, parties contracting for private works of improvement are allowed to negotiate the percentage retention to be withheld. SB 61 offers greater financial protection to contractors and subcontractors by applying a five percent (5%) retention cap applicable to most private construction contracts. In particular, for contracts executed on or after January 1, 2026, owners, developers, direct contractors and subcontractors may withhold no more than five (5%) retention from progress payments, and the total amount of retention withheld may not exceed five (5%) of the total contract value. SB 61 also limits retention withheld from subcontractors by contractors and subcontractors to the same amount withheld from the contractor by the owner.

Reprinted courtesy of Erinn Contreras, Sheppard Mullin and Julia Anderson, Sheppard Mullin

Ms. Contreras may be contacted at econtreras@sheppardmullin.com
Ms. Anderson may be contacted at juanderson@sheppardmullin.com

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Downtown skyline of Louisville

Focused on all things contract negotiation and project start-up, it was fitting way to kick off the 2025-26 year of programmatic excellence.

Top 10 Take-Aways from the 2025 Fall Forum Meeting in Louisville

October 13, 2025 — Marissa L. Downs - The Dispute Resolver

Last week saw the first-ever meeting of the ABA Forum on Construction Law in Louisville, Kentucky. The event brought together over 500 attorneys, ADR neutrals and consultants for what was the first meeting helmed by incoming Forum Chair, Tracy James. Thanks to the hard work and dedication of countless individuals, including but not limited to Program Coordinators Colbie Campbell and Liz Kraengel, the program was an unbridled success. Focused on all things contract negotiation and project start-up, it was fitting way to kick off the 2025-26 year of programmatic excellence. As usual, the lessons learned were many and varied but read on for my top 10 take-aways.

10. The Kentucky Derby is the most-watched and most-attended horse race in the United States. The iconic Louisville race has been run every year since its inception in 1875. Traditionally held the first Saturday in May as the first leg of the Triple Crown, the Derby is referred to colloquially as the "run for the roses" and "the most exciting two minutes in sports." While the Derby event itself is brief, the Churchill Downs is a bustling city of racing-related activity for most of the year and stables over 1,400 horses annually. Travis Stone (the voice of the Kentucky Derby) and Derby bugler, Steve Buttleman (who has been playing the "call to the post" at Churchill Downs for over 30 years) opened the Fall Meeting in grand style with a live demonstration of their skills and a little bit of Derby spirit.

9. Don't settle for business as usual when it comes to arbitrator selection. When it comes to arbitrator selection in complex disputes, business as usual may no longer cut it. At the Division 1 lunch Wendy Venoit and Sean Dillon spoke of newer, more robust tools which parties can avail themselves to ensure that all of the arbitrator candidates they are presented with have the expertise and calendar availability needed to effectively resolve the dispute at hand. The AAA-ICDR offers an Enhanced Arbitrator Selection process on large, complex cases, which allows parties to receive additional information before making their selections. Gone are the days of having to stealthily suss out the predilections of your potential panel. . .if the parties agree, they can submit questions for candidates to answer, ask the AAA to pre-screen candidates by certain criteria, or the AAA can arrange for all parties to interview the candidates by telephone or video call.

Ms. Downs may be contacted at mdowns@lauriebrennan.com

Reprinted courtesy of Marissa L. Downs, Laurie & Brennan, LLP

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Business person opening suit like superhero

The publication, first released in 1991 by Law & Politics and later acquired by Thomson Reuters in 2010, continues to be a trusted resource for identifying distinguished attorneys.

Mountain States Super Lawyers Recognizes 19 Nevada Snell & Wilmer Attorneys in 2025 Rankings

October 13, 2025 — Snell & Wilmer

LAS VEGAS and RENO-TAHOE - Snell & Wilmer is pleased to announce that 19 attorneys from its Nevada offices have been named to the 2025 edition of Mountain States Super Lawyers. Among those honored, 13 attorneys earned recognition on the Rising Stars list.

Super Lawyers highlights attorneys across more than 70 practice areas who have achieved significant professional accomplishments and earned the respect of their peers. Selection is determined through a rigorous, multi-step process involving independent research, peer nominations, and peer evaluations. The publication, first released in 1991 by Law & Politics and later acquired by Thomson Reuters in 2010, continues to be a trusted resource for identifying distinguished attorneys.

Reprinted courtesy of Snell & Wilmer

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Forensic Architect CA, AZ, NV, CO, TX, UT, FL, NM, OK - NCARB - National Council of Architectural Registration Boards

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Hand holding house

Mapping a Way Out of the US Housing Affordability Crisis

October 20, 2025 — Kriston Capps - Bloomberg

Across the US, housing has cemented its status as a top-line issue for state and local lawmakers. Rural, urban and suburban leaders are all wrestling with ways to jump-start new housing, legalize apartment buildings and preserve affordable options. Even at the federal level, where there are fewer tools to directly authorize or obstruct new homes, housing policy is the subject of a robust debate about the government’s capacity for getting things done.

Reprinted courtesy of Kriston Capps, Bloomberg

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Businesspeople in hardhats meeting

McKinsey Finds Rising Infrastructure Appeal Among Private Investors

October 20, 2025 — Aileen Cho - Engineering News-Record

The growth of populations, data centers, AI, electrification, energy transition and urbanization is shaping an estimated $106-trillion infrastructure investment opportunity through 2040 that will increasingly involve private investors, according to researchers at McKinsey and Co.

Ms. Cho may be contacted at choa@enr.com

Reprinted courtesy of Aileen Cho, Engineering News-Record

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Businessperson holding insurance policy

Neat Result for Policyholders - SDNY Sides with Distillery in Collapse Dispute

October 20, 2025 — Michael S. Levine & Evan Warshauer - Hunton Insurance Recovery Blog

Earlier this month, the Southern District of New York issued an opinion in The Vale Fox Distillery LLC v. Central Mutual Insurance Company, No. 24-cv-4169 (S.D.N.Y.), which concerned a catastrophic collapse of storage racks holding whiskey barrels at Vale Fox’s distillery, destroying over $2.5 million worth of aging single malt whiskey. The court determined there was coverage for Vale Fox’s loss but left the issue of valuation to be determined another day.

Reprinted courtesy of Michael S. Levine, Hunton Andrews Kurth LLP and Evan Warshauer, Hunton Andrews Kurth LLP

Mr. Levine may be contacted at mlevine@hunton.com
Mr. Warshauer may be contacted at ewarshauer@hunton.com

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Seminar

2025 Insurance Coverage and Practice Symposium

October 20, 2025 — Beverley BevenFlorez – CDJ Staff

DRI’s three-day Insurance Coverage and Practice Symposium is relevant “for insurance executives, claims professionals, and outside counsel who specialize in insurance coverage.” Attendees of this event will have the “opportunity to engage with a distinguished faculty of insurance industry leaders and coverage lawyers on emerging and relevant issues facing the industry.” The symposium will cover “mass tort litigation to practical tips and strategies for handling excess exposure and reinsurance issues impacting claims.” In addition, the event “will also provide numerous exceptional networking opportunities for attendees to interact with industry and outside counsel colleagues and to build relationships with other professionals.”

December 3rd-5th, 2025
Sheraton New York Times Square
811 7th Ave
New York, NY 10019

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Palisades Fire Suspect Indicted, Faces Up to 45 Years in Prison Due to Additional Charges

Jonathan Rinderknecht, the suspect accused of igniting a fire that eventually led to the deadly Palisades Fire, was officially indicted by a federal grand jury on Wednesday, ABC7 reported.

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CA's First Solar-Covered Water Canal Now Generating Power

From the air, you could mistake it for the world's largest beach umbrella. But this solar canopy near Turlock is not only shading the water flowing underneath it - it's also producing enough clean electricity to power several thousand homes, ABC7 News Bay Area reported.

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