Anaheim California Construction Expert Witness Directory

“It’s My Retainage and I Want It Now!” - Fundamentals to Requirements and Entitlement for Retainage

July 28, 2025 — Brad Sands & Ted Bolte - ConsensusDocs
Ever found yourself thinking, “It’s my retainage, and I want it now!” like a contractor echoing J.G. Wentworth’s famous jingle? For contractors and subcontractors, that withheld chunk of cash—typically 5-10% of your pay—can feel locked away until the project’s done. For owners and general contractors, retainage is a critical tool to ensure work is completed to standard before funds are released. Retainage (also called retention) is a predetermined amount of a contract progress payment withheld from a contractor’s (or subcontractor’s) invoice for work performed or materials furnished.[1] Its purpose is generally twofold: to motivate contractors to complete projects without sacrificing quality, while also protecting the owner from unnecessary liens, delays, or defects. This article explores some of the basic essentials regarding retainage in private construction contracts: how much can be withheld, when you’re entitled to payment, what happens if you leave a project early, and key contract provisions to note. While not an exhaustive legal guide, this overview aims to help owners, contractors, and subcontractors navigate retainage fairly and effectively. Additionally, this article focuses on retainage in the context of private contracts, as public contracts have separate statutory requirements for amounts to be withheld and preconditions for the release of funds. Reprinted courtesy of Brad Sands, Jones Walker LLP and Ted Bolte, law student at Charles Widger School of Law at Villanova University Mr. Sands may be contacted at bsands@joneswalker.com Read the full story...

Spearin Doctrine Can Apply in Design-Build Context

April 08, 2025 — David Adelstein - Florida Construction Legal Updates
The Spearin doctrine is a doctrine in the construction industry that broadly means the owner impliedly warrants the constructability of the plans and specifications given to the contractor. This implied warranty attaches to a design specification, but not a performance specification. A question arises as to whether the Spearin doctrine can apply in the design-build context where the contractor is responsible for both the design and construction. It can, as discussed in the case below. In Balfour Beatty Construction, LLC v. Administrator of the General Services Administration, 2025 WL 798865 (Fed. Cir. 2025), a design-build contractor appealed a decision from the Civilian Board of Contract Appeals (Board) claiming it was entitled to recover for design errors in the government’s bridging documents. In other words, the contractor claimed there was a design defect in the government’s bridging documents and, pursuant to the Spearin doctrine, the government should be liable for the contractor’s increased costs. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Unprecedented Times: An Interview Panel With 2025 Top Construction Law Firms

July 15, 2025 — David McMillin - Construction Executive
In a typical year, construction law doesn’t change all that much—but so far, 2025 has been anything but a typical year. Before the Trump administration reached its first-100-days mark, attorneys were already combing through the language of nearly 130 executive orders. While executive orders are nothing new—President Biden signed more than 160, and President Trump signed more than 200 in his first term—many of the recent actions are fundamentally changing the way that construction firms operate. How should you manage an uptick in uncertainty? Which cases are moving through the courts that could impact your jobsites? And what can you do to increase your odds of avoiding mediation, arbitration or litigation? There are no easy answers to any of these questions, but following the lead of some of the industry’s brightest legal minds—all of whom practice among CE’s most recent edition of the Top 50 Construction Law Firms—can put you on a course for success. TARIFF TALK When the Trump Administration unveiled plans to impose a sweeping new set of tariffs in the spring, the vast majority of construction firms felt a figurative crack in their foundations: In April, around 80% of ABC contractors reported that suppliers had notified them of price increases, and nearly 20% of them had projects paused or interrupted. As leaders continue to worry about what those price increases might do to their business models, they’re spending more time talking to their attorneys. Reprinted courtesy of David McMillin, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...

Top Developments - 2025, Issue 1

April 08, 2025 — John Anooshian, Paul Briganti, Gianna Martorano, Alison Bennett, Robert Drummond, Jeremy Koepf, Morgan Liptak - The Complex Insurance Coverage Reporter
MOLD EXCLUSION American Guar. & Liab. Ins. Co. v. Victory Highlands Condo. Assoc’n, 2024 N.J. Super. Unpub. LEXIS 3128 (N.J. Super. Ct., App. Div., Dec. 26, 2024) New Jersey appeals court concludes that claims by a condominium resident alleging injury from indoor exposure to mold did not fall within a “consumption” exception to mold exclusions* in CGL policies where the resident demonstrated only that mold was present on his food and not that he was injured by eating mold on the food. It reasoned that, if the resident needed to prove only that there was mold on his food, and not that he was injured by eating the mold, “the exception [would] swallow the exclusion.” The court further determined that, although the exclusions in certain policies did not include anti-concurrent causation clauses, they were not subject to the efficient proximate cause doctrine** because, under their unambiguous language, “it is irrelevant how the mold came to exist; rather, it matters only whether the mold is the direct or indirect cause of the alleged damages.” Because the exclusions barred coverage, the court found it unnecessary to review the lower court’s determination that the resident’s claims were subject to the “first manifestation trigger” rather than the “continuous trigger.” Reprinted courtesy of John S. Anooshian, White and Williams LLP, Paul A. Briganti, White and Williams LLP, Gianna Martorano, White and Williams LLP, Alison Bennett, White and Williams LLP, Robert Drummond, White and Williams LLP, Jeremy J. Koepf, White and Williams LLP and Morgan Liptak, White and Williams LLP Mr. Anooshian may be contacted at anooshianj@whiteandwilliams.com Mr. Briganti may be contacted at brigantip@whiteandwilliams.com Ms. Martorano may be contacted at martoranog@whiteandwilliams.com Ms. Bennett may be contacted at bennettal@whiteandwilliams.com Mr. Drummond may be contacted at drummondr@whiteandwilliams.com Ms. Liptak may be contacted at liptakm@whiteandwilliams.com Read the full story...

Congratulations to Las Vegas Partner Jeff Saab and Associate Shanna Carter on Another Big Win at Arbitration!

April 15, 2025 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP
The case arose from a motor vehicle versus motor vehicle accident wherein the Plaintiff, a driver, and her passenger alleged that the compact vehicle was t-boned in an intersection, resulting in severe and permanent physical injury. Jeff and Shanna’s client, driving a commercial vehicle, was headed north when he approached the intersection and observed that the traffic lights were malfunctioning. Consequently, he came to a complete stop and then entered the intersection, at which point a collision occurred with Plaintiffs’ vehicle, which was headed west. Plaintiffs argued that their traffic light was functioning correctly, that they had the right of way, and that Jeff and Shanna’s client failed to yield, causing the collision. However, under examination, Jeff and Shanna were able to impeach both Plaintiffs multiple times and elicited testimony from the Plaintiff driver that Jeff and Shanna’s client entered the intersection first and, therefore, had the right of way. Based on Plaintiffs’ testimony and other evidence presented during arbitration, the arbitrator was compelled to adopt the arguments of the defense, resulting in a complete defense award. Read the full story...
Reprinted courtesy of Dolores Montoya, Bremer Whyte Brown & O'Meara LLP

A Contract Is a Contract: Releases and Change Orders / Bilateral Modifications Are Construed as Contracts

April 15, 2025 — David Adelstein - Florida Construction Legal Updates
A contract is a contract. It should say what it means and means what it says. A release is construed like a contract. A change order or bilateral modification is construed like a contract. The decision out of the United States Court of Federal Claims, B.L. Harbert International, LLC v. US, 2025 WL 914388 (Fed.Cl. 2025), serves as a case on point. In this case, the contractor had a claim related to a bilateral modification (i.e., change order #1) on a federal project which included a two-month extension of time to complete the contractor’s work. The modification stated the contractor and the contractor’s subcontractors waived the right to seek compensation for any other delays relating to the work. “When a contractor signs a general release, it is barred from seeking damages for the events connected to and contemplated by the release.” B.L. Harbert International, supra, at *4. Thus, the contractor’s claims related to this modification were waived. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Type I and Type II Differing Site Conditions Claims

July 01, 2025 — David Adelstein - Florida Construction Legal Updates
In government contracting, there is a Federal Acquisition Regulation (FAR) on differing site conditions. See F.A.R. 52-236-2. This regulation, and the standard, would apply outside of government contracting when you hear about differing site conditions claims. I. TYPE I DIFFERING SITE CONDITIONS A type 1 differing site conditions claim occurs when “[s]ubsurface or latent physical conditions at the site which differ materially from those indicated in the contract.” See F.A.R. 52-236-2(a)(1). For a contractor to prevail on a type I differing site conditions claim, the contractor MUST PROVE the following 4 elements:

that a reasonable contractor reading the contract documents as a whole would interpret them as making a representation as to the site condition;
that the actual site conditions were not reasonably foreseeable to the contractor based upon information available to the contractor outside of the contract documents;
that the contractor reasonably relied upon the contract documents; and
that the conditions differed materially from those presented in the contract documents and the contractor suffered damages as a result.

Appeal of-Skanska USA Civil Southeast, Inc., ASBCA 61220 (ASBCA 2025) (citation omitted). Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris, P.A.
Mr. Adelstein may be contacted at dma@kirwinnorris.com

Doctrine of Superior Knowledge in Government Contracting

September 23, 2025 — David Adelstein - Florida Construction Legal Updates
In government contracting claims, the contractor may argue the government had superior knowledge as to key facts and failed to share its superior knowledge with the contractor, which ultimately cost the contractor more money/time. “Under the doctrine of superior knowledge, the Government has ‘an implied duty to disclose to a contractor otherwise unavailable information regarding some novel matter affecting the contract that is vital to its performance.’ A superior knowledge claim ‘focuses … upon the Government’s knowledge of vital information prior to contract award and its failure to share it with an unknowing contractor.’” Troop Contracting, Inc. v. Department of Veteran Affairs, CBCA 8000, 2025 WL 2164974 (CBCA July 2025). The underlined “prior to contract award” is key. In Troop Contracting, the contractor argued the government failed to share its superior knowledge of the prevalence of lead based paint in the building it was hired to renovate. As a result, the contractor had to perform lead based paint testing and abatement, which cost additional money. However, and unfortunately for the contractor:

[T]he contract plainly stated that [the contractor] must assume that any and all painted surfaces encountered and disturbed contain LBP [lead based paint] and that [the contractor] must treat these painted surfaces per the specifications. [The contractor] therefore knew or should have known that the specifications set forth in the solicitation (which were subsequently incorporated into the contract) advised that all painted surfaces must be assumed to contain LBP and that [the contractor] would be required to address any disturbed paint pursuant to the LBP section.

Troop Contracting, supra.

Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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