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DIRECTORY AND CAPABILITIES

Under Construction – November 2025

January 06, 2026 — Snell & Wilmer
Letter From the Editor Welcome to the fall edition of Snell & Wilmer’s Under Construction Newsletter. As brisk autumn air sets in, it’s an ideal moment to shore up the basics — both in your projects and in your grasp of the continually shifting field of construction law. In this newsletter, we explore a variety of topics related to current construction trends and legal news that may be relevant and helpful to you and your business. We have assembled a selection of articles that include discussions of state-specific issues including how Idaho’s Contractor Registration Act bars unregistering contractors from enforcing contracts or filing liens, though the state Supreme Court allows remedies for post-registration work if severable. This edition discusses how contractors can maximize cash flow and profits by substituting security for retainage on public projects. We also highlight the California Court of Appeals discussion and latest decision relating to subcontractor substitution protections under Public Contract Code §4107. We round out our newsletter summarizing how the Colorado Supreme Court clarified that the economic loss rule bars tort claims for purely economic harm arising from contracts — even when alleging willful and wanton misconduct. Read the full story...
Reprinted courtesy of Snell & Wilmer

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Las Vegas Partner Jeffrey Saab and Team Leader D. Ryan Efros Secure a $0.00 Settlement on a Multimillion-Dollar Construction Defect Case!

April 14, 2026 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
Partner Jeffrey Saab and Team Leader D. Ryan Efros’ client was a construction supervisor on a palatial mansion. The homeowners claimed millions of dollars in damages and asserted the client was a general contractor (GC) and so responsible for the alleged defects. Jeff and Ryan took more than 15 depositions, reinforcing their trial strategy theme: that the client was not a GC, but Plaintiffs were. They secured significant concessions from Plaintiffs, pressed Plaintiffs’ own negligent construction choices, and made the risk of trying the case intolerable. On the eve of trial, Plaintiffs backed down, settling out Jeff and Ryan’s client for $0.00. Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

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Always Keep Your Time Limits in Mind—to Know When You Can Sue, and When You Can No Longer Be Sued (Law Note)

December 15, 2025 — Melissa Dewey Brumback - Construction Law in North Carolina
As the calendar year is getting a little long in the tooth, the subject of time becomes top of mind. Time, in litigation, can make or break your ability to sue (or be sued). A recent blog post by blogger John Caravella addressing statutes of limitations in New York (6 years) and Florida (5 years) brought to mind the issues that sometimes surprise folks working in North Carolina. In North Carolina, the statute of limitations is (generally) set at 3 years for breach of contract matter, including breaches of construction contracts. However, there are always exceptions. The statute of repose in North Carolina for damages to real property is 6 years. What that means is that if there is a ‘latent defect’ that is not obvious right away, you may still have a claim beyond three years (but not beyond the 6 year repose limit). Read the full story...
Reprinted courtesy of Melissa Dewey Brumback, Ragsdale Liggett
Ms. Brumback may be contacted at mbrumback@rl-law.com

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Why Travelers Fought a Fire Claim for Invisible Smoke Damage

February 23, 2026 — Elaine Silver - Engineering News-Record
Just 40 minutes after midnight on Sept. 27, 2018, the sky lit up over Birmingham, Ala. A fire engulfed an apartment building under construction—the last-to-be completed section of a wood-framed complex called the Metropolitan. It fueled one of the largest recorded blazes in the city’s history. Read the full story...
Reprinted courtesy of Elaine Silver, Engineering News-Record
ENR may be contacted at enr@enr.com

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Construction’s AI Moment — Why Contractors Are Increasingly Optimistic

December 30, 2025 — Aarni Heiskanen - AEC Business
A new industry research report from Dodge Construction Network in partnership with CMiC reveals a striking level of optimism among contractors about the transformative potential of artificial intelligence in construction. According to the survey, 87% of contractors believe AI will meaningfully transform their businesses, even though current adoption remains relatively low. This optimism reflects a growing recognition that AI isn’t just a buzzword, but a set of capabilities beginning to deliver tangible operational value across the built environment. Evolving roles One of the most interesting shifts the report highlights is how contractors envision their own roles evolving. Instead of being bogged down in repetitive administrative tasks, project teams expect AI to enable them to work more strategically, focusing on predictive insights rather than reactive fire-fighting. Read the full story...
Reprinted courtesy of Aarni Heiskanen, AEC Business
Mr. Heiskanen may be contacted at aec-business@aepartners.fi

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U.S. Supreme Court Decision May Negate State Law Requirement to File a Certificate of Merit with the Complaint in a Federal Action Against a Design Professional

April 27, 2026 — Christopher Olsen & Phillip Boldt - ConsensusDocs
To deter frivolous and unfounded claims against design professionals, states throughout the country have enacted statutes which generally require litigants to furnish a formal certification of merit (“COM”) from a qualified expert or face potential dismissal of their lawsuit. These COM statutes can impose a significant front-end burden on claimants who must pay an expert to review project records, interview the project team, and prepare a formal report before the lawsuit can be filed—often regardless of the amount in controversy. However, in light of a recent U.S. Supreme Court decision in a medical malpractice case, most, if not all of these statutes, may no longer be enforceable in federal court. This article examines the recent decision in Berk v. Choy, 146 S. Ct. 546 (2026), the decisions thus far which have applied Berk to invalidate COM statutes, and other categories of statutes applicable to the construction industry which may face a similar fate. The U.S. Supreme Court Decision (Berk v. Choy) In Berk, the plaintiff, Harold Berk, sued a doctor for medical malpractice under Delaware law in Delaware federal court. 146 S. Ct. at 551. Under Del. Code, Tit. 18, § 6853(a)(1), an affidavit of merit (like a COM) must accompany a complaint alleging medical malpractice. Id. Berk failed to include an affidavit of merit with his complaint. Id. at 552. Applying Delaware state law, the federal court dismissed Berk’s medical malpractice claim. Berk appealed to the Third Circuit, arguing that the affidavit of merit required by § 6853(a)(1) is unenforceable in federal court because it is more onerous than the Federal Rules of Civil Procedure. The Third Circuit affirmed the District Court’s ruling, finding § 6853(a)(1) enforceable in federal court. Reprinted courtesy of Christopher Olsen, Peckar & Abramson, P.C. and Phillip Boldt, Peckar & Abramson, P.C. Mr. Olsen may be contacted at colsen@pecklaw.com Mr. Boldt may be contacted at pboldt@pecklaw.com Read the full story...

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Protect Your Projects By Identifying and Controlling Hidden Contract Risks

March 10, 2026 — Larry Borda & Daniel Lund III - JD Supra
In a recent webinar entitled “Spreading the Risk and Avoiding Killer Contract Clauses,” Phelps lawyers Daniel Lund and Larry Borda examined contractual provisions that most often expose construction professionals to unexpected financial and legal risk. While construction contracts may appear routine, each contract serves as the primary mechanism for managing, allocating, and mitigating risk among parties involved in complex projects—often valued in the hundreds of millions or billions of dollars. When parties fail to fully understand the terms they sign, costly and avoidable consequences frequently follow. Contracts as Risk-Transfer Instruments Construction contracts are the primary method for transferring risk. While contracts authorize work and define scope, they also allocate responsibility for the risks inherent in construction projects. Some may imagine a world where a one-page agreement and a set of plans would suffice. In reality, modern construction requires detailed agreements—particularly provisions designed to anticipate problems, distribute burdens and reduce disputes. Reprinted courtesy of Larry Borda, Phelps and Daniel Lund III, Phelps Mr. Borda may be contacted at larry.borda@phelps.com Mr. Lund may be contacted at daniel.lund@phelps.com Read the full story...

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$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. Read the full story...
Reprinted courtesy of Vince Kong, Engineering News-Record
Mr. Kong may be contacted at kongv@enr.com

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