Time to Negotiate Limitation on Remedies and Damages Is on the Front End
February 10, 2026 —
David Adelstein - Florida Construction Legal UpdatesRemember, when it comes to contracts, the time to negotiate and enter into mutually agreed upon bargains is on the front end. And, if the contract is not negotiable, at least you know that and can make the business decision whether you want to accept the bargains and risks. If you don’t, well, you can walk away. Move onto another deal. If you do, then you make the business decision as to the bargains or risk transfers and accept them moving forward. One of those bargains and risks deals with a limitation on damages and remedies.
In a recent dispute dealing with the sale of an aircraft, there was a provision dealing with the buyer and seller’s remedies in the event of a breach. (Similar to a real estate transaction or other buyer-seller scenario.) “Contract section 10.4(a) stated that if the buyer defaulted, the seller’s “exclusive remedies” were to keep the aircraft and the buyer’s deposit. Section 10.4(b) stated that if the seller defaulted by “fail[ing] to deliver the [aircraft] in accordance with the terms of [the contract],” the buyer’s “sole remedies” were the seller’s reimbursement of the buyer’s inspection costs.” Sky Aviation Holdings, LLC v. Aviation Unlimited, 50 Fla.L.Weekly D2658c (Fla. 4th DCA 2025). As you can see, there was a limitation on the seller’s damages.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Newmeyer Dillion Announces Jacqueline McCalla as Its Newest Partner
February 02, 2026 —
Newmeyer DillionNEWPORT BEACH, CALIF. – January 28, 2026 – Prominent business and real estate law firm Newmeyer Dillion is pleased to announce that Walnut Creek attorney Jacqueline McCalla has been elected to partnership.
Jacqueline focuses her practice on business and construction litigation. In her practice, Jacqueline takes pride in assisting businesses of all sizes and entrepreneurs in various matters whether it be a pre-litigation matter or in litigation, from case inception through trial. She represents developers, builders, and contractors in complex, multi-party disputes involving a variety of residential, commercial, and mixed-use properties.
Jacqueline's practice also includes litigating insurance disputes. Jacqueline leverages her past experience advocating for both carriers and insureds to now help companies better understand their policies and stay protected.
"Since joining the firm, Jacqueline has been a thoughtful, hardworking, and solutions-oriented attorney who consistently delivers great results for our clients," said Managing Partner Paul Tetzloff. "It's no surprise that clients value her work and actively seek her out."
Jacqueline earned a B.A. in Legal Studies from University of California, Berkeley, and a J.D., from University of San Francisco School of Law, graduating magna cum laude.
About Newmeyer Dillion
For over 40 years, Newmeyer Dillion has delivered creative and outstanding legal solutions and trial results that achieve client objectives in diverse industries. With over 60 attorneys working as a cohesive team to represent clients in all aspects of business, employment, real estate, environmental/land use, and insurance law, Newmeyer Dillion delivers holistic and integrated legal services tailored to propel each client's operations, growth, and profits. Headquartered in Newport Beach, California, with offices in Walnut Creek, California and Las Vegas, Nevada, Newmeyer Dillion attorneys are recognized by The Best Lawyers in America©, and Super Lawyers as top tier and some of the best lawyers in California and Nevada, and have been given Martindale-Hubbell Peer Review's AV Preeminent® highest rating. For additional information, call 949.854.7000 or visit www.newmeyerdillion.com.
Virginia Multi-Employer Site Safety Issues–and How to Deal with Them
February 02, 2026 —
Christopher G. Hill - Construction Law MusingsThe world of the Owner, Contractor, Subcontractor “straight line” project model is long gone. Increasingly complex construction needs for commercial owners require the services of numerous trades, and even multiple “prime” contractors at times, to perform the various stages of construction.
Because of the complex and multi-employer nature of the modern commercial worksite, as a contractor, you may no longer be responsible only for the safety of your own employees. Depending on the state in which your project is being built, you, as a general contractor, may be responsible for hazards at your worksite that you did not create. On federal job sites (or in states that have merely adopted the federal OSHA standard), one rule applies. In some states that have their own safety regulations, another rule applies.
Under the Federal OSHA guidelines, the state regulations must be at least as stringent as those of the Federal safety regulations. This flexibility allows states to impose stricter (though not more lenient) rules upon construction site contractors. While this flexibility allows state safety officials to better tailor their policies, it has caused confusion in the multi-employer realm.
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The Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
Leaders in Dispute Resolution Need to Make Unbiased Decisions for Mediation to Succeed
March 31, 2026 —
Rick G. Erickson - Snell & WilmerAs a mediator helping to settle construction disputes and as an arbitrator deciding outcomes of these disputes, I found certain lessons to be especially helpful after graduating last summer from the Executive Education program at Harvard Kennedy School (HKS). The exceptional HKS curriculum included courses focused on negotiation strategies for multiparty disputes, decisive leadership during crisis, and human behavior affecting dispute resolution.
In particular, our HKS class debated the impact of cognitive bias in dispute resolution, and we studied a central theme that decision-making is universally scientific. That is, parties making decisions in dispute resolution exhibit and rely upon empirical factors that good mediators and decision makers should appreciate and understand. Bias, for example, can cause key players to discount persuasive witnesses, admissible evidence, and reliable expert opinions that influence the outcome of a construction dispute. Biased decision makers may also choose to withhold key information from the mediator, as though doing so will help rather than hurt what is supposed to be an objective and diplomatic process.
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Rick G. Erickson, Snell & WilmerMr. Erickson may be contacted at
rerickson@swlaw.com
Prefatory Contract Language Cannot Be Used to Create an Ambiguity with Operative Provisions
May 12, 2026 —
David Adelstein - Florida Construction Legal UpdatesContract drafting and interpretation matters.
A case dealt with the potential conflict with prefatory language in an agreement compared with operative provisions in the agreement. The trial court held that the operative provisions control. I discussed this case
here where the appellate court reversed based on the prefatory language.
But, through a motion for rehearing, the appellate court reconsidered its position and affirmed the trial court based on the operative provisions, mainly that the prefatory language cannot be used to create an ambiguity with operative provisions. Consider this explanation in affirming the trial court:
Because the trial court correctly found that the initial language in the contract was prefatory and could not be used to create an ambiguity in the remainder of the contract, we affirm the final judgment.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Application of Ordinance and Law Coverage in Property Insurance Policy and Twenty-Five Percent Rule
December 08, 2025 —
David Adelstein - Florida Construction Legal UpdatesA recent case involved a homeowner’s all-risk property insurance policy with ordinance and law coverage. This ordinance and law coverage required the carrier “to cover costs that the [insureds] incur as a result of any ordinance that requires them to replace ‘the portion of the undamaged part of a covered building or other structure necessary to complete the remodeling, repair or replacement of that part of the covered building or other structure damaged by a Peril Insured Against.” Weston v. Universal Property & Casualty Insurance Co., 50 Fla.L.Weekly D2307a (Fla. 2d DCA 2025). The property insurance policy required the insurer to pay the actual cash value of the loss, minus any deductible, and “any remaining amounts necessary to perform such repairs as work is performed and expenses are incurred.” Id.
Here, the insureds sustained roof damage from a storm. The insureds had an expert that opined, with a reasonable degree of certainty, that the entire roof needed to be replaced because “[t]here was damage to more than twenty-five percent of the roof, and the Florida Building Code provided that if more than twenty-five percent of the roof was damaged, then the entire roof should be replaced.” Weston, supra. The insureds also had an expert that testified to an estimate- the replacement cost of the damage as well as the actual cash value of that damage.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Alert: Fraudulent Notice of Nonpayment Defense Applies to Payment Bond Claims
April 27, 2026 —
David Adelstein - Florida Construction Legal UpdatesUnder Florida’s Lien Law, there’s an affirmative defense or affirmative claim known as a “
fraudulent lien.” The fraudulent lien defense or claim is set out in Florida Statute s. 713.31. This defense also extends to payment bond claims, whether under a private statutory payment bond (Florida Statute s. 713.23) or a public payment bond (Florida Statute s. 255.05), as it pertains to the notice of nonpayment. A notice of nonpayment needs to be served within 90 days from final furnishing to preserve a claimant’s rights against the bond. However, there really has not been a case, until now, that discusses a “fraudulent notice of nonpayment.”
In K&M Electric Supply, Inc. v. Brown Electrical Solutions, LLC, 51 Fla.L.Weekly D672a (Fla. 4th DCA 2026), a prime contractor and surety prevailed at the trial level on their fraudulent notice of nonpayment defense based on a supplier’s notice of nonpayment and action against a public payment bond (under Florida Statute s. 255.05).
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Snell & Wilmer Named Among the “Most Admired Law Firms to Work For” by Los Angeles Business Journal
December 22, 2025 —
Snell & WilmerLOS ANGELES – Snell & Wilmer is proud to announce that its Los Angeles office has again been named to the Los Angeles Business Journal’s 2025 “Most Admired Law Firms to Work For.” The list highlights outstanding law firms in the L.A. area that are consciously working towards creating diverse, positive, and supportive environments to help drive the success of their attorneys. Firms appearing on the list were judged on company culture, employee benefit and support programs, as well as diversity and women’s initiatives.
“We are honored to be recognized once more as one of the ‘Most Admired Law Firms to Work For’ by the Los Angeles Business Journal”, said
Joshua Schneiderman, managing partner of the firm’s Los Angeles office. “Our focus remains on building a workplace where people feel supported, encouraged to grow, and connected to their colleagues, clients, and communities. We are committed to investing in programs, relationships, and opportunities that create long lasting career fulfillment.”
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Snell & Wilmer
