Award Upheld in W. Va. Caisson Dispute

In 2018, the West Virginia Department of Highways (DOH) awarded a contract for construction of a section of King Coal Highway in Southern West Virginia just north of the intersection of the Kentucky and Virginia borders.  

The project included construction of two new bridges. In 2019, a mid-tier subcontract was formed for the bridge caisson foundations and drilling work. Later, a lower-tier subcontract was formed for rebar installation for the caissons.

In 2020, the subcontractor drilled and placed concrete for the caisson and the sub-subcontractor installed the rebar cage for the first bridge caisson. The sub’s concrete was rejected, and some was replaced, yet some of it remained, which allegedly led to voids at the base of the caisson.  

Allegedly, the sub-sub’s rebar cage was not adequately secured during installation. 

The DOH rejected the caisson. After two unsuccessful remediation efforts, the DOH directed removal and replacement of the caisson. The prime contractor engaged a different subcontractor to replace the caisson. The prime then sought replacement and delay costs from the sub.

The parties arbitrated their disputes. The arbitration panel decided for the prime, which then sought confirmation of the arbitration award from a Federal Court in West Virginia. (DLB Enterprises LLC, et al. v. Kanawha Stone Co., Inc., U.S.D.C., S.D. West Virginia, Case No. 2:22-cv-00046 (March 3, 2026)).

Under the Federal Arbitration Act (9 U.S.C. § 10 (a)), there is a strong presumption in favor of any arbitration award, which can be vacated or set aside only in limited circumstances, including:

• Corruption, fraud, or undue means used to procure the arbitration award.
• When the arbitrator(s) displayed evident partiality or misconduct that prejudiced any party.
• When the arbitrators exceeded the powers granted to them by the parties themselves under the arbitration agreement.  

A court “must determine only whether the arbitrator did his job – not whether he did it well, correctly, or reasonably, but simply whether he did it.” (Mountainer Gas Co. v. Oil, Chem. & Atomic Workers Int’l Union, 76 F.3d 606, 608 (4th Cir. 1996)). With this in mind, overturning an arbitration award is very rare and this case was no exception.

Here, the arbitrators determined the DOH improperly rejected the caisson. To contest this rejection, the arbitrators determined the sub was required to submit a claim, under the subcontract terms.  

However, because the sub did not submit a claim, the arbitrators also determined the sub could not later contest the caisson rejection nor anything that allegedly followed thereafter.  

Under the subcontract’s changes clause, “[i]f changes cause an increase or decrease in the [sub’s] cost of or time required for performance for this subcontract, an equitable adjustment shall be made. . . [a]ny claim . . . for adjustment under this clause must be presented to the contractor. . . .”  

The arbitrators’ decision is not public, and I have not seen it either. Based upon the court’s public decision, it appears that the arbitrators decided an “adjustment” includes any relief or review. Without a claim, the arbitrators could not review the DOH’s improper rejection of the caisson nor could the arbitrators grant a time extension for delays beyond the sub’s control to relieve the assessment of delay damages.

The sub argued it need not have submitted a claim because it incurred no additional costs, which may have been because the sub may have simply relied upon the sub-sub to resolve the rejected caisson.  

The creation of the lower-tier subcontract may have reduced the risks of the sub’s own damages and also created a procedural hurdle for the sub (i.e., having to submit a claim to preserve a lower-tier’s claim rights and to protect the sub itself from future damages sought by others).

There are at least three lessons from this case. First, arbitration decisions are typically final. Second, claims may be necessary even without seeking damages. Third, claims by mid-tier contractors can be defensive against both higher and lower tiers.  

Jon Straw is a partner with Kraftson Caudle, PLC, a law firm in McLean, Va., specializing in heavy-highway and transportation construction. Straw can be contacted via email at [email protected].