Construction Law Update 2025 Edition

1. SOUTHWEST REGION (Arkansas, Kansas, Louisiana, New Mexico, Oklahoma, Texas)

• Introduction
• Legislative Updates
• Arbitration
• Municipal Law
• Administrative Law

2. SOUTHEAST REGION (Alabama, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina, Tennessee, Virginia, West Virginia)

• Introduction
• Statutes of Limitation and Repose
• Licensing Requirements
• Mechanic's Liens
• Contract Interpretation—Flow-Down Clause
• Contract Interpretation—Pay-When-Paid
• Damages—Indemnification for Lost Profits as Delay Damages
• Damages—Economic Loss Doctrine
• Indemnification

3. NORTHEAST REGION (Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont)

• Introduction
• Public Construction and Statutory Interpretation
• Prevailing Wage Law Does Not Apply to Engineering Services
• Public Commission Had No Authority to Require PLA
• Play by the Rules in Public Contracts
• State Liable for Misrepresentation on Scope of Work
• New York Labor Law Decisions
• Contract Interpretation and Enforcement
• Agreement to Share in Profits Also Applied to Losses
• No Damage for Delay
• Pay-if-Paid Clause and Application to Statute of Limitations
• Legal Standards
• Contractor Liability to Third Party for Dangerous Condition
• Whether Architect Owed Any Duty to Third Party
• Mechanic's Liens
• New Hampshire Contractor's Lien Had Priority Over Bond Trustee Mortgage
• Judge Was Not Empowered to Reduce Amount of Lien in Motion for Summary Action
• Insurance
• Do Waivers of Subrogation Extend to Post-Project Property Damage Claims?
• Whose GL Policy Is Primary—Subcontractor's or General Contractor's?
• Faulty Work Exclusion and the Ensuing Loss Exception
• Reinforcing Distinction Between Duty to Defend and Duty to Indemnify
• Connecticut Gives Clearer Meaning to the Term “Property Damage” as Used in Commercial General Liability Policies
• Insurance Policy Did Not Cover Preemptive Measures to Avoid a Larger, Covered loss
• Carrier May Be Liable for Legal Fees Incurred to Enforce Insured's Right to Defense
• Liquidated Damages—Two Different Views
• Arbitration
• Forum Selection Clause Does Not Preclude Arbitration
• Scope of Arbitration Clause Where Subcontract Rights Were Assigned
• Waiver of Arbitration by Refusing to Participate
• Statutes of Limitation and Repose
• Claims Based on General Contract Obligations “Sounded in Negligence” and Were Thus Barred by the Statute of Repose
• Nullum Tempus Does Not Toll the Statute of Repose
• New Legislation in Public School Building Projects
• Prompt Payment Act in Massachusetts and Pennsylvania

4. NORTHWEST REGION (Alaska, Idaho, Montana, Nebraska, North Dakota, Oregon, South Dakota, Washington, Wyoming)

• Alaska
• Idaho
• Montana
• Nebraska
• North Dakota
• Oregon
• South Dakota
• Washington
• Wyoming

5. WEST REGION (Arizona, California, Colorado, Hawai’i, Nevada, Utah)

• Introduction
• Contract Interpretation
• Constitutionality of Lease/Leaseback Arrangements in California
• Statutes Impacting Development
• Contractor Compliance and Licensing
• Insurance
• Miscellaneous

6. MIDWEST REGION (Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, Wisconsin)

• Introduction
• Illinois
• Indiana
• Iowa
• Michigan
• Minnesota
• Missouri
• Ohio
• Wisconsin

7. GOVERNMENT CONTRACTS

• Introduction
• Issues Arising Under the Contract Disputes Act
• Bid Protests
• False Claims Act
• Federal Regulations and Executive Orders

8. NEW DEVELOPMENTS IN SURETY LAW: PERFORMANCE, PAYMENT, AND INDEMNITY

• Introduction
• Performance Bonds
• Payment Bond Claims
• Indemnity

9. INTERNATIONAL DELAY ANALYSIS PROTOCOLS: DICHOTOMIES, SYNERGIES AND LEGAL CONSIDERATIONS

• Introduction
• The International Delay Protocols: SCL D&D2 and AACEI 29R-03
• Schedule Delay Analysis Protocols Commonalities
• SCL D&D2 and 29R-03: Differences and Complexities
• Conclusion: Using 29R-03 and SCL D&D2 Together

10. NAVIGATING BANKRUPTCY—ISSUES COMMONLY ARISING IN THE CONSTRUCTION INDUSTRY

• Introduction
• Bankruptcy Case Procedures
• Post-Petition Perfection of Mechanic's Liens
• Owner Bankruptcy
• General Contractor Bankruptcy
• Assumption of Executory Contracts
• Avoidance and Recovery of Preferential Transfers

11.ARBITRATION

• Introduction
• Updates its Construction Rules and Mediation Procedures for the First Time Since 2015
• The Eleventh Circuit Overturns Its Own Precedent: Corporacion AIC, SA v. Hidroelectrica Santa Rita S.A.
• Texas District Court Restores an Original Arbitration Award After an Erroneous Modification: RSM Production Corp. v. Gaz du Cameroun, S.A.
• Split Texas Supreme Court Routes Arbitrability Question to Arbitrator: TotalEnergies E&P USA, Inc. v. MP Gulf of Mexico, LLC
• Connecticut Appellate Court Finds No Violation of Public Policy and Confirms Arbitration Award: Fraser Lane Associates, LLC v. Chip Fund 7, LLC
• Georgia Appellate Court Confirms Award Despite Arbitrator's Misconduct: Docs of CT, LLC v. Biotek Services, LLC
• Spanish Judgment Unenforceable Due Agreement to Arbitrate: The London Steam-Ship Owners’ Mutual Insurance Ass'n Ltd. v. The Kingdom of Spain
• Vacatur Based on Potential Arbitrator Bias: Grupo Unidos por el Canal, S.A. v. Autoridad Del Canal de Panama
• Request to Resolve a Circuit-Split: Occidental Exploration & Production Co. v. Andes Petroleum Ecuador Ltd.
• The Fight for Lima Continues: Metropolitan Municipality of Lima v. Rutas de Lima SAC
• Conclusion

12. CONSTRUCTION INSURANCE

• Introduction
• Developments in Builder's Risk Insurance Coverage
• Developments with Indemnification
• Developments in General Liability Insurance Coverage

Highlights of the 2025 Update include:

• The Update contains six chapters that guide readers through significant cases from the past year across various regions of the country, addressing design and construction projects in the Southeast, Northwest, or regions in between, the decisions made, and their implications for and impact on the construction industry as a whole.
• The Surety Law chapter examines recent developments in surety law, particularly payment and performance bonds, indemnity rights, and various defenses available to indemnitors.
• The Bankruptcy chapter covers the essential framework and procedures of bankruptcy law, addressing specific issues likely to be encountered by those in the construction industry.
• The Arbitration chapter is a key component for the annual update, offering practical insights into the ever-changing world of domestic and international arbitration in our growing global economy. This chapter also discusses the American Arbitration Association’s (AAA’s) adoption of an updated version of its construction rules and mediation procedures for the first time since 2015.
• Finally, insurance plays a critical role in construction projects. The Insurance chapter addresses recent case law developments across the country, particularly focused on standard policy exclusion interpretation, indemnity rights, and additional insured coverage issues.