“He Chose…Poorly: How Bad DSC Clauses Lead to Project Doom in the Last Crusade of Construction Risk”
March 10, 2026 —
Curt Martin & Lee Banta - ConsensusDocs“We do not follow maps to buried treasure, and X never, ever marks the spot.” That’s the advice that Indiana Jones offered in the Last Crusade film. But what’s beneath the surface isn’t just important to adventure archaeologists. It has real-world application to our industry, where success depends on the stability of materials below the surface.
The study of geology and soils has ancient roots. Egyptians relied on soil stability for the pyramids; Rome built a continent-wide roadway system utilizing subgrade preparation techniques; Medieval builders implemented a rudimentary foundation pier system; Henri Gautier studied what is now called the “angle of repose” for French retaining walls in the early 18th Century.
Through the 19th Century, contractors bore the risk of the stability of their work, and the attendant peril of unforeseen site conditions. But in the early 20th Century, design trades continued to develop increased understanding of soil and underground conditions. In the 1920’s US federal contracts began employing “differing site conditions” clauses, which provided for cost/time adjustments if subsurface conditions differed from expectations. Industry forms followed the federal policy, and these clauses became almost universally accepted.
Reprinted courtesy of
Curt Martin, Peckar & Abramson, P.C. and
Lee Banta, Peckar & Abramson, P.C.
Mr. Martin may be contacted at cmartin@pecklaw.com
Mr. Banta may be contacted at lbanta@pecklaw.com
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Surety Liability Is Coextensive with Its Bond Principal
April 14, 2026 —
David Adelstein - Florida Construction Legal UpdatesA recent Miller act payment bond case, U.S. f/u/b/o Whitetail General Constructors v. Northcon, Inc., 2026 WL 46671 (D.Mont. 2026), contains a short noteworthy discussion as to a surety’s liability being coextensive with that of its bond principal. If you are bonded, or you are pursuing a bond, you need to appreciate this, which is why this is a noteworthy discussion:
A “surety’s liability on a Miller Act bond must be at least coextensive with the obligations imposed by the Act if the bond is to have its intended effect.” “Therefore, ‘the liability of a surety and its principal on a Miller Act payment bond is coextensive with the contractual liability of the principal only to the extent that it is consistent with the rights and obligations created under the Miller Act.’” In other words, “[w]here a subcontract’s terms are consistent with the Miller Act’s provisions, the surety’s liability on the Miller Act bond is coextensive with the contractual liability of its princip[al].”
“The liability of a surety under the Miller Act is controlled by federal law, rather than state contract law[.]” The court may, however, “look to state law when interpreting contractual provisions” in a Miller Act case.
“[T]he measure of recovery under the Miller Act is generally determined by the terms of the subcontract [or underlying contract].”
Northcon, supra, at *4-5 (internal citations omitted).
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David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
CEO/Founding Principal Nicole Whyte is recognized as one of the most Influential Leaders in Orange County by the OC Business Journal!
December 15, 2025 —
Dolores Montoya - Bremer Whyte Brown & O'Meara LLPCongratulations to CEO/Founding Principal Nicole Whyte on her recognition as one of the most Influential Leaders in Orange County by the OC Business Journal!
Why: Nicole leads over 200 attorneys in 11 offices in the Western U.S. She specializes in family law and complex civil litigation. Of those, 89 are based in the firm’s Newport Beach headquarters.
Notable: Nicole was born, raised, and educated in South Africa. She practiced law in Johannesburg before emigrating to the United States in 1991. After quickly learning the U.S. Legal system, Nicole founded Bremer Whyte in 1997. Her husband, Steve Nataupsky, is a managing partner at Knobbe Martens.
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Bremer Whyte Brown & O'Meara LLP
Lewis Brisbois Ranked Tier 1 Nationally for Seven Practice Areas in 2026 Best Law Firms
January 06, 2026 —
Lewis Brisbois NewsroomNovember 6, 2025) - Lewis Brisbois has been ranked Tier 1 nationally by Best Lawyers for 'Appellate Practice,' 'Commercial Litigation,' ‘Insurance Law,’ 'Litigation - Construction,' ‘Litigation - Labor and Employment,’ ‘Mass Tort Litigation / Class Actions – Defendants,’ and ‘Transportation Law,’ as well as ranking Tier 1 in an array of practice areas across 27 metro regions in its 2026 edition of Best Law Firms®.
In addition to Lewis Brisbois' national rankings, the firm was also ranked Tier 1 in the following regional categories:
Akron
- Bet-the-Company Litigation
- Commercial Litigation
- Tax Law
- Trusts and Estates
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Lewis Brisbois
Ninth Circuit Affirms District Court’s Finding of No Coverage for Interior Leak
March 24, 2026 —
Tred R. Eyerly - Insurance Law HawaiiApplying California law, the Ninth Circuit affirmed the district court’s finding that water damage caused by a leaking pipe over time was not covered under the insured’s homeowners’ policy. Mojica v. State Farm General Ins. Co., 2025 U.S. App. LEXIS 32405 (9th Cir. Dec. 11, 2025).
A small hole, slightly larger than a pen tip in size, developed in a pressurized hot water pipe. The resulting leak lasted for nearly six days and released enough water to saturate and ruin all the subflooring and flooring in the insureds’ home.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
EPA Grants Arizona Lead Over Underground Injection Control Program
October 27, 2025 —
Patrick J. Paul & John Habib - Snell & WilmerOn September 10, 2025, the U.S. Environmental Protection Agency (EPA) announced a
final rule granting Arizona primacy to administer all classes of underground injection wells under the Safe Drinking Water Act (SDWA). This decision transfers authority for permitting and oversight of the Underground Injection Control (UIC) program from EPA to the Arizona Department of Environmental Quality (ADEQ).
UIC Program
The UIC program safeguards underground drinking water sources by regulating six classes of wells, from hazardous waste disposal (Class I) to carbon capture and storage (Class VI). States may obtain primacy if they demonstrate their program meets federal requirements.
EPA’s approval followed a detailed technical and legal review of Arizona’s application and determined that ADEQ has the resources and statutory authority to implement the program consistent with SDWA.
Reprinted courtesy of
Patrick J. Paul, Snell & Wilmer and
John Habib, Snell & Wilmer
Mr. Paul may be contacted at ppaul@swlaw.com
Mr. Habib may be contacted at jhabib@swlaw.com
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Texas Voids Out-of-State Forum and Choice of Law Clauses in Construction Contracts
March 17, 2026 —
Conor G. Bateman - Snell & WilmerThe Texas Legislature amended statutes impacting construction contracts for projects located in Texas to declare any forum selection clause or choice of law provision “void as against public policy,” and mandate venue for any litigation or arbitration shall be in the Texas county in which the work is performed. The parties may stipulate to a different venue only after the dispute arises.
Forum selection clauses and choice of law provisions are common in construction contracts. Frequently, general contractors based in other jurisdictions require subcontractors to sign contracts designating the contractor’s preferred venue for any dispute. These contracts may also select the law of another state to govern the contract.
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Conor G. Bateman, Snell & WilmerMr. Bateman may be contacted at
cbateman@swlaw.com
Mortgage Company Fails to Prove Loss or Entitlement to Damages, Eliminating Recovery
December 15, 2025 —
Tred R. Eyerly - Insurance Law HawaiiThe trial court’s dismissal of a declaratory judgment action after the mortgage company failed to prove the loss or entitlement to damages was affirmed. Erie Ins. Co. v. F St. Investments, LLC, 2025 Ohio App. LEXIS (Ohio Ct. App. Oct. 14, 2025).
MR DLB Properties LLC was in the business of property restoration and renovation. MR DLB executed a mortgage on three properties as secuirty for payment on a note issued by mortgagee F Street. As a condition of the mortgage, MR DLB obtained commercial liability insurance coverage with Erie. The policy provided $908,100 in replacement/repair property coverage and listed F Street as first mortgagee.
Read the full story...Reprinted courtesy of
Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
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