The “Pay When Paid” Clause in California Construction—Strategies as the Battle Continues
August 03, 2026 —
William L. Porter - Porter Law GroupIt is well known in California Construction circles that the “Pay If Paid” clause is illegal in this state. There is a great distinction, though, between this clause and a similar clause, known as a “Pay When Paid” clause. A pay if paid clause allows a contractor to tell a subcontractor that if the contractor is unpaid for the subcontractor’s work, then the contractor has no legal obligation to pay the subcontractor, ever. For a great variety of reasons, the California Supreme Court, in the case of Wm. R. Clarke Corp v. Safeco Ins. Co. of America (1997) 15 Cal.4th 882, declared this type of clause illegal in California Construction.
Although the pay if paid clause is illegal in California, the pay when paid clause is still perfectly legal and is found in many subcontracts that contractors issue to their subcontractors. The pay when paid clause allows a contractor to delay paying its subcontractors until the dispute between the contractor and the property owner over payment has been resolved and the contractor is paid by the property owner. Although seemingly reasonable (since it merely delays payment until the contractor is paid by the owner, thereby providing a funding source to pay subcontractors), significant problems still arise.
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William L. Porter, Porter Law GroupMr. Porter may be contacted at
bporter@porterlaw.com
Presumption of Prejudice Applies to All Affirmative Defenses Regarding Insured’s Failure to Comply with Post-Loss Policy Conditions
June 23, 2026 —
David Adelstein - Florida Construction Legal Updatesn a recent property insurance coverage dispute, an issue on appeal pertained to the “prejudice” jury instruction associated with the insured’s failure to comply with post-loss policy conditions. The trial court found that the prejudice only pertained to prompt notice and not other post-loss policy conditions. This was reversed on appeal as prejudice applied to ALL the post loss policy conditions that the insured failed to comply with, not just the prompt notice requirement. The prejudice presumption applies to all affirmative defenses regarding an insured’s failure to comply with post-loss policy conditions.
Consider this discussion when dealing with an insurer raising prejudice as an affirmative defense to do an insured’s failure to comply with post-loss policy conditions, and the associated burdens of proof:
On appeal, [the insurer] contends the trial court erred by instructing the jury that the presumption of prejudice was inapplicable to all of its post-loss obligation defenses except prompt notice. We agree.
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Cuomo Bridge Lawsuit Adversaries Weigh Mediated Settlement
July 06, 2026 —
Richard Korman - Engineering News-RecordRival legal teams have reached a critical juncture as they consider a mediated settlement in one of two major payment lawsuits pending between a design-build contracting team and the New York State Thruway Authority over construction of the more than $3-billion Mario M. Cuomo Bridge north of New York City.
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Richard Korman, Engineering News-RecordMr. Korman may be contacted at
kormanr@enr.com
Southwest Super Lawyers Recognizes 50 Snell & Wilmer Attorneys in 2026 Rankings
June 15, 2026 —
Snell & WilmerPHOENIX (April 22, 2026) – Snell & Wilmer is pleased to announce that 50 attorneys in the Phoenix and Tucson offices have been selected for inclusion in the 2026 Southwest Super Lawyers publication. Of those 50, four were recognized for the first time and 24 were recognized as Southwest Rising Stars. Super Lawyers is a listing of lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The selection process is multi-phased and includes independent research, peer nominations, and peer evaluations. Super Lawyers was first published in 1991 by Law & Politics and was acquired by Thomson Reuters, Legal in February 2010. Thomson Reuters is a leading source of information for businesses and professionals. The below Snell & Wilmer attorneys have been selected for inclusion in the 2026 Southwest Super Lawyers rankings.
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Snell & Wilmer
Seattle Team Obtains Summary Judgment in Real Estate Broker Professional Liability Action
July 20, 2026 —
Lewis BrisboisSeattle Partner Kathleen A. Nelson and Associate Synova M. L. Edwards prevailed on a hotly contested motion for summary judgment in Whatcom County, Washington court in a real estate broker professional liability action.
The plaintiff filed an action against Lewis Brisbois' clients, a real estate agent and brokerage firm, among several others, including the title company, purchasers and others related to the sale of real property following his complicated and long running divorce action. These claims primarily arose out of the clients’ reliance on an order signed by the court in the underlying divorce action. The order allowed the clients to execute the purchase and sale agreement, as the plaintiff was non-cooperative.
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Lewis Brisbois
The Who/What/How of Sealing Plans for Architects and Engineers (Law Note)
March 03, 2026 —
Melissa Dewey Brumback - Construction Law in North CarolinaThe proper use of professional seals in North Carolina is critical. Failure to follow the prescribed requirements can
subject you or your Firm to a Board sanction.
Did you know that the NC Board of Architecture and the NC Engineering Board have jointly prepared a fairly straightforward document that can tell you exactly what you need to know about sealing of plans?
That document,
the “Seal Brochure” (pdf) is available for download. Every state’s regulations are a little different (thank you Federalism!) so it is worth reviewing with your staff at regular intervals, especially if you do work across state lines.
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Melissa Dewey Brumback, Ragsdale Liggett PLLCMs. Brumback may be contacted at
mbrumback@rl-law.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
Real Estate & Construction News Roundup (3/18/25) – Data Center Frenzy, China’s Expanding REIT Market and Tariff-Affected Construction Costs
March 31, 2026 —
Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law BlogIn our latest roundup, relistings reached highest total in a decade, Florida State Legislature passes bill to increase the state’s housing supply, data center construction adapts to changes and more!
- The data center construction frenzy and a new, potentially larger highway bill were top of mind for builders during the latest round of con
Construction Calamity: Risk Transfer Tips for Contractors After a Catastrophic Loss
Not so Fast! How Does Revoking Acceleration of a Note Impact the Statute of Limitations?
Lithium for Batteries from Geothermal Brine
Are Mechanic’s Liens the Be All End All of Construction Collections?
New 2021 ALTA/NSPS Land Title Survey Standards Effective February 23, 2021
Suit Limitation Provision Eliminates Wind Loss Claim
When Do You Call Your Lawyer?
California Supreme Court Allows Claim Under Unfair Competition Statute To Proceed
Unpredictable Opinion Regarding Construction Lien (Reinstatement??)
David M. McLain to Speak at the CLM Claims College - School of Construction - Scholarships Available
I.M. Pei, Architect Who Designed Louvre Pyramid, Dies at 102
New York Team Secures Dismissal of Premises Liability Action Against Client
Georgia Legislature Passes Additional Procurement Rules
Not Just Another Client Alert about Cyber-Risk and Effective Cybersecurity Insurance Regulatory Guidance
Florida Federal Court to Examine Issues of Alleged Arbitrator Conflicts of Interests in Panama Canal Case
Unpredictable Power Surges Threaten US Grid — And Your Home
Exclusion Does Not Bar Coverage for Injury To Subcontractor's Employee
Foreman in Fatal NYC Trench Collapse Gets Jail Sentence
New York City Council’s Carbon Emissions Regulation Opposed by Real Estate Board
Hirer Not Liable Under Privette Doctrine Where Hirer Had Knowledge of Condition, but not that Condition Posed a Concealed Hazard
Partners Jeremy S. Macklin and Mark F. Wolfe Secure Seventh Circuit Win for Insurer Client in Late Notice Dispute
Pennsylvania Supreme Court Dismisses Appeal of Attorney Fee Award Under the Contractor and Subcontractor Payment Act
Congratulations to Associate Madeline Arcellana on Her Selection as a Top Rank Attorney in Southern Nevada!
Monumental Museum Makeover Comes In For Landing
Governor Inslee’s Recent Vaccination Mandate Applies to Many Construction Contractors and their Workers
EPA Issues Interpretive Statement on Application of NPDES Permit System to Releases of Pollutants to Groundwater
CEO: Power Isn’t the Only Electrical Challenge for AI Data Centers
Insurance Alert: Insurer Delay Extends Time to Repair or Replace Damaged Property
Connecticut Federal District Court Follows Majority Rule on Insurance Policy Anti-Assignment Clauses
A Community Constantly on the Brink of Disaster
Repairs to Hurricane-damaged Sanibel Causeway Completed in 105 Days
Key Amendments to Insurance Claims-Handling Regulations in Puerto Rico
Water Reuse Emerges as a Critical Strategy for Data Center Development
Never, Ever, Ever Assume! (Or, How a Stuck Shoe is Like a Construction Project Assumption)
A Homeowner’s Subsequent Action is Barred as a Matter of Law by way of a Prior “Right to Repair Act” Claim Resolved by Cash Settlement for Waiver of all Known or Unknown Claims
Advice to Georgia Homeowners with Construction Defects
Nonparty Discovery in California Arbitration: How to Get What You Want
Who is Responsible for Construction Defect Repairs?
Is Your Home Improvement Contract Putting You At Risk?
Research Illuminates Pollution Problem in Tijuana River Valley
Vacation during a Project? Time for your Construction Documents to Shine!
Court Strikes Expert Opinion That Surety Acted as a “De Facto Contractor”
The Starter Apartment Is Nearly Extinct in San Francisco and New York
Supreme Court of Washington State Upholds SFAA Position on Spearin Doctrine
Las Vegas Student Housing Developer Will Name Replacement Contractor
Firm Announces Remediation of Defective Drywall
The Five-Step Protocol to Reopening a Business
3D Printing: A New Era in Concrete Construction
Biggest U.S. Gas Leak Followed Years of Problems, State Says
Living With a Millennial. Or Grandma.
ances for Development Community
Summary Findings of the Fourth National Climate Assessment
A Tuesday With Lisa Colon
As Some States Use the Clean Water Act to Delay Energy Projects, EPA Issues New CWA 401 Guidance
No Signature? Potentially No Problem for Sureties Enforcing a Bond’s Forum Selection Clause
Construction Litigation Roundup: “D’Oh!”
Contingent Business Interruption Claim Denied
Decline in Home Construction Brings Down Homebuilder Stocks
