CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - TUESDAY, NOVEMBER 25, 2025

Aerial view of Washington state capitol

Reecer Creek Excavating was subcontracted by SRI-Rochlin Construction JV to perform excavation and paving work on a housing development in Ellensburg, Washington.

Washington Court of Appeals Narrows Arbitrator Authority in Construction Dispute

November 21, 2025
Joshua Lane - Ahlers Cressman & Sleight PLLC

In a recent opinion, Division III of the Washington Court of Appeals clarified arbitrator limits in Reecer Creek Excavating v. SRI-Rochlin Construction JV,[1] holding that consequential damage waivers are enforceable, fee-shifting depends on who “substantially prevails,” and arbitration awards can be vacated only in narrow circumstances.

Reecer Creek Excavating (“Reecer”) was subcontracted by SRI-Rochlin Construction JV (“SRI”) to perform excavation and paving work on a housing development in Ellensburg, Washington. When payment disputes arose, both parties filed breach-of-contract claims and later agreed to private arbitration. Their arbitration agreement included terms mandating that “the prevailing party shall be entitled to reasonable attorney fees and costs” and providing for an exception to the finality of the award where the arbitrator exceeded its authority.

After a multi-day arbitration, the arbitrator found both parties partly at fault - Reecer for incomplete and defective work, and SRI for withholding certain payments. The net award favored Reecer by about $55,000, with each side ordered to bear its own attorney’s fees.

Mr. Lane may be contacted at joshua.lane@acslawyers.com

Reprinted courtesy of Joshua Lane, Ahlers Cressman & Sleight PLLC

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CDJ NEWS THIS WEEK

Meeting with attorney over contract

Acuity v. Kinsale underscores that Colorado courts will distinguish carefully between contractual, equitable, and statutory theories in multi-insurer disputes.

Acuity v. Kinsale Insurance Company: Co-Carrier Obligations and Subrogation under Colorado Law

November 21, 2025 — Olivia Barden - Colorado Construction Litigation Blog

In Acuity v. Kinsale Insurance Company, 750 F. Supp. 3d 1229 (D. Colo. 2024), the United States District Court for the District of Colorado addressed the duties and rights of multiple insurers that issued commercial general liability (“CGL”) policies to the same insured. The decision clarifies how subrogation and contribution apply when one carrier funds a settlement and another refuses to participate.

Background
Phipps Construction Company served as the general contractor for the construction of a retirement community in Lakewood, Colorado. Phipps subcontracted the stucco work to Monarch Stucco, Inc. When the project owner, BMSH I Lakewood CO LLC, alleged construction defects, it brought an arbitration action against Phipps. Phipps in turn filed a third-party claim against Monarch, alleging defective and cracking stucco on fifteen buildings.

Reprinted courtesy of Higgins, Hopkins, McLain & Roswell, LLC

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Florida house under construction

In a recent personal injury dispute dealing with the tripping and falling on a public sidewalk, a key issue included the application of Florida’s Building Code on a FDOT project.

Applicability of Florida’s Building Code Is a Question of Law

November 21, 2025 — David Adelstein - Florida Construction Legal Updates

The application of Florida’s Building Code is a question of law for the court. It’s NOT a question for a witness to determine.

In a recent personal injury dispute dealing with the tripping and falling on a public sidewalk, a key issue included the application of Florida’s Building Code on a Florida Department of Transportation (FDOT) project. Summary judgment was granted for the defendants where a major portion of the ruling was based on the inapplicability of Florida’s Building Code to the public sidewalk. Even though the plaintiff had an expert witness that opined that the Florida Building Code did apply, the trial court rejected this opinion in determining the Code did not apply:

Whether the Florida Building Code is applicable to this case ultimately is a question of law belonging to the court, not the witness. See Lindsey v. Bill Arflin Bonding Ag., Inc., 645 So. 2d 565, 568 (Fla. 1st DCA 1994) (“The legal effect of a building code presents a question of law for the court, not a question of fact for the jury.”); see also Edward J. Seibert, A.I.A. Architect & Planner, P.A. v. Bayport Beach & Tennis Club Ass’n, Inc., 573 So. 2d 889, 891-92 (Fla. 2d DCA 1990) (“An expert should not be allowed to testify concerning questions of law and the interpretation of the building code presented a question of law. It was the duty of the trial court to interpret the meaning of the code . . . .” (citations omitted)). As such, it was the responsibility of the trial court to determine whether the building code applies to the sidewalk in this case and whether the code provided evidence of negligence. See Martin v. Omni Hotels Mgmt. Corp., No. 6:15-cv-1364-ORL-41KRS, 2017 WL 2928154, at *4 (M.D. Fla. April 19, 2017) (“Accordingly, [the expert] may not testify as to the applicability or inapplicability of any provision of the Florida Building Code. This Court will determine what provisions, if any, are applicable to the facts of this case.”).

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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Person signing contract

Like with any other construction contract, if certain items are not thoroughly addressed, it can raise doubts about the resultant risk allocation, breeding an environment ripe for dispute.

Fixed Price, Fluid Quantities: The Hidden Risks in Lump Sum Agreements with Variable Units

November 21, 2025 — Virginia Trunkes - Construction Law Zone

Lump sum construction agreements are the most basic of the different design-bid-build options: the contractor agrees to complete the entire scope of work for a fixed price, and assumes most of the quantity and cost risks. If the contractor’s actual costs exceed its estimates, the contractor absorbs the loss. Adding a clause into the construction agreement that allows unit quantities to increase or decrease based on actual job quantities creates a mechanism that can reduce the risk of estimating, but it is a clause that should be carefully drafted and closely guarded.

There are times when it makes sense for parties to deviate from their lump sum agreement and allow for greater flexibility: when there are uncertainties in site conditions or scope, and/or to reduce disputes over changed conditions. The parties can introduce elements of unit-price contracts into the lump sum framework, either choosing to shift the risk entirely to one party or the other, or sharing the risk, e.g., by including an equitable adjustment clause that allows for a price adjustment if the variation exceeds a certain threshold. Even with that balance, incorporating opportunities for adjustments can favor more than just the contractor: it creates a disincentive for the contractor to inflate unit prices to hedge against quantity risks.

Ms. Trunkes may be contacted at vtrunkes@rc.com

Reprinted courtesy of Virginia Trunkes, Robinson & Cole

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Gavel in front of the law books

The plaintiff, Alejandro Garcia-Terrazas, had a policy issued by State Farm.

Insured’s Breach of Contract Claim Survives Motion to Dismiss, but Bad Faith Claim Does Not

November 21, 2025 — Tred R. Eyerly - Insurance Law Hawaii

The court denied the insurer’s motion to dismiss the insured’s breach of contract claim, but granted the motion to dismiss without prejudice the bad faith claim. Terrazas v. State Farm Fire & Cas. Co., 2025 U.S. Dist. LEXIS 173920 (D. Colo. Sept 5, 2025).

The plaintiff, Alejandro Garcia-Terrazas, had a policy issued by State Farm. The policy covered the abrupt and accidental discharge or overflow of water.

Terrazas noticed a water discharge or overflow in the kitchen. The water caused damage to the floors, cabinets, and other items in the kitchen. A claim was filed with State Farm. State Farm investigated but refused to pay the full value of the claim.

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

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

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Construction at tunnel

This activity comes despite the company’s statement to ENR that tunneling has not yet started and final permit approvals remain pending, prompting renewed scrutiny over oversight and public engagement.

$400M Tunnel Project Faces Scrutiny from Nashville Leaders

November 21, 2025 — Vince Kong - Engineering News-Record

As state and local officials in Tennessee raise concerns over limited transparency surrounding the proposed $400-million Music City Loop - a transit tunnel in Nashville intended to connect downtown with the city’s international airport - lead developer The Boring Co. has quietly begun excavation near the Tennessee State Capitol.

Mr. Kong may be contacted at kongv@enr.com

Reprinted courtesy of Vince Kong, Engineering News-Record

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Attorney client priviledge on blocks in front of gavel

The court vacated a district court order that would have required FirstEnergy Corporation to produce, in civil litigation, privileged and work-product-protected documents related to two internal investigations.

Circuit Court Supports Attorney-Client Privilege and Work Product Protections in Connection with Internal Investigations

November 21, 2025 — Jason Spitalnick, Taryn J. Gallup & Kourtney George - Snell & Wilmer

On October 3, 2025, the U.S. Court of Appeals for the Sixth Circuit reaffirmed that the attorney-client privilege and work-product protections cover documents and communications concerning corporate internal investigations - even when companies later use those documents or related findings to make business decisions.1 In doing so, the court vacated a district court order that would have required FirstEnergy Corporation to produce, in civil litigation, privileged and work-product-protected documents related to two internal investigations.

FirstEnergy, a public utility company headquartered in Ohio, became embroiled in a high-profile public-corruption scheme involving substantial alleged payments to state officials in exchange for favorable legislative efforts. In response, FirstEnergy and an independent committee of its board retained separate outside counsel to conduct internal investigations. FirstEnergy then faced civil litigation related to the same underlying facts.

Reprinted courtesy of Jason Spitalnick, Snell & Wilmer, Taryn J. Gallup, Snell & Wilmer and Kourtney George, Snell & Wilmer

Mr. Spitalnick may be contacted at jspitalnick@swlaw.com
Ms. Gallup may be contacted at tgallup@swlaw.com
Ms. George may be contacted at kegeorge@swlaw.com

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Q&A

Here are some steps Homeowners Associations (HOA) can take to protect themselves during cold season.

Homeowners Associations Must Prepare for Cold Season Maintenance and Repairs in Western Washington

November 21, 2025 — Andre Egle - VF Law

Washington experiences major winter storms in the Greater Puget Sound area approximately two or three times per winter. While this depends on whether the winter weather pattern is affected by either El Nino or the La Nina Pacific Ocean current, associations must prepare for storm impacts rather than scramble after a storm has hit. La Nina conditions are ongoing and are likely to persist into the winter of 2025-2026, though forecasts indicate it will remain weak. Here are some steps Homeowners Associations (HOA) can take to protect themselves.

What Proactive Steps Can a Washington HOA Take to Identify and Minimize Potential Construction or Maintenance Risks Before a Major Storm?
Knowing that the chances for heavier-than-usual rains are in the forecast, a local HOA should inspect roofs, gutters, building envelopes, and drainage systems to identify vulnerabilities to water intrusion inside the buildings or ice buildup on the outside. Trees, landscaping features, walkways, and retaining walls need to be checked for dangers like dead limbs, tripping hazards, or any signs of shifting structure. Mechanical and utility systems such as plumbing, HVAC, and exterior lighting must be inspected to ensure they have sufficient insulation, protection, and proper operation. Contractors must ensure that all active construction sites are properly secured. They should also have a plan in place to protect materials from storm damage and address any other hazardous conditions.

What Key Questions Should HOA Boards and HOA Property Managers Ask Potential Contractors to Ensure Good Workmanship and Accountability?
The following five core questions capture the essentials of a contractor’s quality, reliability, and accountability: (1) Are you licensed, bonded, insured (inquire into the policy types and the applicable limits), and able to provide references for similar HOA projects? (2) Who will manage the project on-site work (request that person’s CV or work history), and how will you communicate work progress, potential issues, and timelines to the HOA? (3) What materials, methods, and quality-control procedures will you use, and how will you protect the property while performing the work, particularly during the rainy and stormy season? (4) Can you provide a detailed, written scope of work and price estimate, and explain, in writing, your company procedures for handling change orders or unexpected conditions? (5) What warranties do you provide for labor and materials that you will be using, and how do you handle a warranty or “punch-list” issues after the job is complete?

What are Some Insurance Pitfalls HOAs Often Overlook - and How to Avoid Them?
Here are the most common insurance pitfalls that HOAs may overlook, along with proposed solutions for addressing them. Pitfall No.1: Outdated or generic replacement-cost estimates that do not reflect actual construction costs in Washington. Solution: Obtain a professional replacement-cost appraisal every 3–5 years and ensure that the policy includes full replacement cost, not actual cash value. Pitfall No.2: Misunderstanding of the division of responsibility for covered losses between the HOA and individual owners. Solution: Educate the owners that under most an HOA’s contemporary governing documents such as the Declarations Of Conditions, Covenants, and Restrictions (DCCRs) and the Bylaw, the association’s insurance primarily covers repairs not only to the association’s common areas and limited common areas, but also the repairs of structural and other building elements inside each individual units, and then collects from the unit owner a proportional share of the HOA’s insurance premium. That way, the repairs covered by the HOA’s property insurance are uniform, and the HOA - not the unit owner - will deal with the repair contractor and its insurer if the repairs are subpar. Pitfall No. 3: Gaps in Water Damage Coverage. Property and liability insurance policies often exclude slow leaks, sewer backups, and water intrusion - three types of claims that typically are most expensive for an HOA. Solution: To request that the HOA insurance broker add to the policy coverage of (a) a backup of sewer/drain coverage, (b) wind-driven rain, and (c) water intrusion, and (d) sudden pipe failures. Afterward, the HOA should ensure that owners consistently keep the plumbing in their units in good working order. Pitfall No. 4: Failing to Adjust Coverage After Renovations. Specifically, HOAs frequently forget to update insurance after roof replacements, building upgrades, or additions of new amenities. Solution: Notify the HOA’s insurance broker after any major capital project and update insurable values to reflect the improvements. Pitfall No. 5: Not reviewing vendor insurance requirements because contractors may frequently have inadequate coverage or let policies lapse in the middle of a construction or renovation project. Solution: At the time of contracting for the construction or renovation work at the HOA property, (i) request that contractors provide their current Certificates of Insurance (“COI”), additional insured endorsements, and insurance policies Declaration pages that show the limits or coverage, and (ii) re-verify the same insurance facts before the work begins.

What is the Best Practice for Communicating with Residents of a Community Owned by an HOA to Maintain Trust and Transparency During and After a Winter Storm?
First, before a storm, send a simple, fact-based, expectation-setting message outlining what the HOA will do (snow removal plans, inspections, vendor readiness) and what residents should be prepared to do. Utilize multiple channels, including email, text alerts, HOA portal, lobby postings, and social media (if applicable). Second, set realistic expectations about response times because trust is built when residents understand what the HOA can and cannot do. Share with residents: (a) snow/ice vendor schedules; (b) priority areas, e.g., roads, walkways, private drives; (c) any delays due to the severity of the weather, and (d) clear expectations meant to reduce the residents’ frustration. Third, provide regular updates, even if the update is “no change.” Residents want visibility and care, not perfection. Report: (i) storm status; (ii) timing of plow/ice treatment timing, (iii) any emerging hazards (e.g., downed branches, icy walkways), and (vi) instructions for safety or temporary restrictions on moving about the community. Fourth, keep a record of and clarify every step taken to address the storm’s impact, since being transparent helps build trust when residents see that the HOA operates in an organized and responsible manner. After each key action, such as plowing, salting, emergency repairs, and the like, share with residents a brief update stating (a) what was done, (b) when it was complete, (c) the name of the vendor that performed the work, and (d) the dangers that are yet to be addressed. Fifth, within 48 to 72 hours after the storm, call a meeting to conduct a post-event summary to discuss what worked well, what challenges the HOA had to deal with, what repairs or follow-up work will happen, and what improvements will be made to meet the next storm with a higher degree of preparedness. Such a meeting would be one of the strongest ways to build long-term trust in the residents of the community owned by the HOA.

Andre Egle is an attorney at VF Law. He may be reached at andre.egle@vf-law.com.

Spotlight on gold star

White and Williams LLP is honored to be recognized among the 2026 Best Law Firms ranked by Best Lawyers®.

White and Williams LLP is Honored to be Recognized Among the 2026 Best Law Firms Ranked by Best Lawyers®

November 21, 2025 — White and Williams LLP

White and Williams LLP is honored to be recognized among the 2026 Best Law Firms ranked by Best Lawyers®.

The Firm earned National Tier 1 and 3 recognitions across six practice areas, reflecting the strength and depth of its legal expertise. In addition, 30 practice areas were recognized among the Regional Tier rankings in Philadelphia, Allentown (Lehigh Valley), New York City, Boston, Baltimore, Delaware and New Jersey.

Best Law Firms rankings are based on a rigorous evaluation and research process that includes client and lawyer evaluations, peer reviews from leading attorneys in their field, industry leader interviews and reviews of a law firm's highlights provided as part of the formal research submission process.

Reprinted courtesy of White and Williams LLP

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AI Hologram

Use AI to expand your creativity, see the case from various perspectives, and make your advocacy more persuasive.

AI as Co-Counsel: How Litigators Can Leverage AI for Depositions, Experts, and Trial Preparation

November 21, 2025 — Debrán O’Neil - The Dispute Resolver

Artificial intelligence is everywhere right now, and the legal industry is no exception. It’s a regular feature at CLEs and in client discussions because lawyers are discovering that careful use can save both time and money. But AI is no longer reserved for e-discovery vendors. Litigators are using AI for trial preparation—helping identify themes, test case theories, summarize voluminous records, refine expert testimony, and streamline depositions.

While AI is not able to read a witness, gauge credibility, or build trust with a jury like lawyers, it can make preparation more efficient and thorough and help present information in a more digestible and compelling way. Below are practical ways litigators can weave AI into their everyday litigation practice and not get left behind.

Ms. O'Neil may be contacted at doneil@ccsb.com

Reprinted courtesy of Debrán O’Neil, Carrington, Coleman, Sloman & Blumenthal, L.L.P.

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Construction workers at table with tools laptop

Like Public Contract Code section 9204, Civil Code section 8850 provides a three-step claims resolution process.

9204 Meet 8850. Public Works Claims Processes Now Apply to Private Works, With Some Differences

November 21, 2025 — Garret Murai - California Construction Law Blog

Contractors working on public works projects are likely familiar with the statutory claims resolution process under Public Contract Code section 9204. Section 9204, which went into effect in 2017, and which has been amended a couple of times since, provides a claims resolution process for public works projects with the goal of resolving claims before litigation.

Section 9204, which currently expires on January 1, 2027 (it has been extended once so far), provides for a three-step process: (1) submission of a claim by the prime contractor and response by the public entity; (2) if the claim is rejected in whole or in part by the public entity, a meet and confer conference between the prime contractor and public entity; and (3) if the claim is not resolved at the meet and confer conference, mediation (or other non-binding dispute resolution process) between the prime contractor and public entity.

A similar statutory claims resolution process has now been enacted that applies to most private works projects. The bill, Senate Bill 440, goes into effect on January 1, 2026, and is codified at new Civil Code section 8850.

Mr. Murai may be contacted at gmurai@nomosllp.com

Reprinted courtesy of Garret Murai, Nomos LLP

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Couple boarding window for hurricane preparedness

As Hurricane Melissa made landfall this week as a category five storm, it serves as a stark reminder to the construction industry to always be prepared, even at the end of storm season.

Why Hurricane Preparedness Isn’t About the Property

November 21, 2025 — Brad Hill - Construction Executive

Along Florida’s 8,436 miles of shoreline, residents face a persistent threat: hurricanes and the often catastrophic damage these natural weather events inflict. Come late summer and autumn, meteorologist forecasts transition from sun and clear skies to overcast days, high winds and heavy rainfall that signal disaster may be afoot.

The state’s construction industry is particularly sensitive to volatile weather patterns, with real estate developments at high risk of destruction if hurricanes cross their path. And with each significant weather event, the losses are substantial. According to the National Centers for Environmental Information, there were nearly 100 disaster events in Florida with financial losses exceeding $1 billion each between 1980 and 2024.

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

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Humanoid robot

Is this just a whim or a breakthrough that could make robots a viable tool for even small construction companies?

How a $1,400 Humanoid Hints at Construction’s Robotic Future

November 21, 2025 — Aarni Heiskanen - AEC Business

Chinese startup Noetix launched Bumi, a bipedal robot that challenges mobile robots at a much heftier price. Is this just a whim or a breakthrough that could make robots a viable tool for even small construction companies?

The Noetix Bumi robot is a humanoid robot designed primarily for educational and family use. It stands 94 cm (about 3 feet) tall, weighs 12 kg (26 pounds), and can run for 1 to 2 hours per charge.

Bumi walks on two legs with stable steps and performs flexible, complex movements, including dancing, enabled by proprietary motion-control algorithms that combine imitation and reinforcement learning.

Bumi has a front-facing camera that detects objects and faces, and it is also equipped with microphones for capturing spoken words, which it can process into actions such as following commands.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

Reprinted courtesy of Aarni Heiskanen, AEC Business

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Consulting Design and Architecture Expert Witness

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

California Architectural Registration Board Supplemental Examination Commissioner

(800) 482-1822

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Mortgage rates decreasing

US Mortgage Rates Drop to Lowest Level in More Than a Year

November 21, 2025 — Prashant Gopal - Bloomberg

Mortgage rates fell to the lowest level in more than a year, easing affordability concerns for homebuyers.

The average for 30-year, fixed loans was 6.19%, down from 6.27% last week and the lowest since early October 2024, data from Freddie Mac show.

Reprinted courtesy of Prashant Gopal, Bloomberg

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Indiana State House

Indiana Supreme Court Adopts “Safe Harbor” Interpleader Approach When Insurer Faced with Multiple Claims and Insufficient Policy Limits

November 21, 2025 — Jason Taylor - Traub Lieberman Insurance Law Blog

Recently, in Baldwin v. Standard Fire Ins. Co., 2025 Ind. LEXIS 680 (Ind. Oct. 21, 2025), the Indiana Supreme Court addressed an insurance carrier’s options where insurance coverage is insufficient to satisfy multiple claimants and the dilemma faced by the insurance carrier in attempting to resolve such claims. Where an insurer is faced with multiple claims which are likely to exceed the available policy limits, what is an insurer to do? One option is to seek individual settlements, but this approach risks exhausting policy limits before satisfying all claimants. Another option is to refrain from individual settlements in hopes of attaining a global settlement, but this approach may fail and expose the insured to increased personal liability. Either option creates risks for the insured and thus exposes the insurer to a later claim that it breached its duty of good faith and fair dealing to its insured, or even that it acted in bad faith. In Baldwin, the insurer facing this dilemma filed an interpleader action naming all known claimants, depositing the policy limits with the trial court, and continued to defend its insured against all claims. In such circumstances, the Indiana Supreme Court held that such choice did not reach the insurer’s duty of good faith and fair dealing to its insured and did not amount to bad faith.

Mr. Taylor may be contacted at jtaylor@tlsslaw.com

Reprinted courtesy of Jason Taylor, Traub Lieberman

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Survey form

Clayco Survey Provides Insights Into Construction's Mental Health Challenges

November 21, 2025 — Annemarie Mannion - Engineering News-Record

Nearly two-thirds of construction workers have experienced anxiety or depression in the last 12 months - 64% compared to 54% in 2024 - according to a mental health survey conducted by St. Louis-based contractor Clayco. Reporting or talking about those struggles is still a challenge for workers who fear they will be treated differently on the job, the survey also finds.

Ms. Mannion may be contacted at manniona@enr.com

Reprinted courtesy of Annemarie Mannion, Engineering News-Record

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Seminar

Navigating Ethical Issues in Mediation and Litigation

November 21, 2025 — Beverley BevenFlorez – CDJ Staff

The upcoming one-day seminar presented by the San Diego Defense Lawyers will be led by Judge Eddie Sturgeon and Hon. James Mangione. The event “will highlight recent case law and offer real-world guidance on fulfilling ethical obligations, both in litigation and mediation settings.” The State Bar has approved this activity for 1 hour of Ethics Credit towards the Minimum Continuing Legal Education requirements.

December 9th, 2025
Signature Resolution
12730 High Bluff Drive
San Diego, CA 92130

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Vegas Loop Site Crews Hide Apparent Pond, Tell Public Not to Look Over Fence Near Las Vegas Strip

Las Vegas construction workers rushed to cover the fence of Elon Musk’s The Boring Company Vegas Loop site as an apparent body of liquid formed feet away from a busy street near the Strip, 8 News Now - Las Vegas reported.

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Oregon Officials Urge Preparedness as New Theory Warns West Coast Faults Could Trigger 'The Big One'

Oregon emergency officials urge residents to stock supplies and prepare as new study warns two West Coast fault systems may trigger big quakes.

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