CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - MONDAY, JANUARY 5, 2026

Burnt wall outlet from fire

The engineer opined that the fire originated at the connection between an LED lamp and the outlet rewired by the defendant.

Subrogation Insight: Expert Testimony Admissible Despite Post-Loss Repairs

December 30, 2025
Gus Sara - The Subrogation Strategist

In Ghaznavi v. Arby Constr., Inc., No. 14-24-00213-CV, 2025 Tex. App. LEXIS 839, the Court of Appeals of Texas (Court of Appeals) considered whether the trial court properly excluded the plaintiffs’, Kambiz Moavenzadeh Ghaznavi and Anahita Nokkonejad (collectively, the Ghaznavis), liability expert. The case arose from a fire at the Ghaznavis’ residence. The trial court held that because the Ghaznavis’ expert did not physically inspect certain fire damaged areas before they were repaired, the expert’s testimony was unreliable and thus inadmissible. The Court of Appeals reversed the lower court’s ruling, finding that the expert’s review of photographs of the repaired areas and his testimony explaining his opinions were sufficient to survive summary judgment.

In this case, the Ghaznavis’ hired the defendant, Arby Construction Inc. d/b/a National Residential Services (Arby Constr.), to install new tiling in a corridor inside their home. The corridor was adjacent to the garage. While Arby Constr. was performing the work, the Ghaznavis asked the defendant to fix an outlet inside the garage that was not working. Arby Constr. installed a new wire that connected the outlet to the garage door opener at the ceiling of the garage. Less than 2 months later, a fire occurred in the garage area. The fire marshal placed the origin of the fire in the ceiling of the corridor adjacent to the garage. The fire marshal’s report stated that “faulty wiring in the corridor behind the garage” caused the fire.

Mr. Sara may be contacted at sarag@whiteandwilliams.com

Reprinted courtesy of Gus Sara, White and Williams

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CDJ NEWS THIS WEEK



Construction worker next to tower crane

Previously voluntary fire-safety recommendations are now mandatory for diesel tower cranes operating in the city.

Report: 2023 NYC Crane Fire and Collapse Caused by Failed Hydraulic Hose

December 30, 2025 — Justin Rice - Engineering News-Record

A disconnected hydraulic hose likely sprayed flammable oil onto a hot surface, igniting a blaze that compromised the luffing system of a tower crane on a busy New York City street, sending its boom crashing 500 ft to the ground, according to a long-awaited investigation into a 2023 crane fire and partial collapse on the west side of Manhattan.

Mr. Rice may be contacted at ricej@enr.com

Reprinted courtesy of Justin Rice, Engineering News-Record

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Legal Fees next to gavel cash

If prevailing party fee provisions already encouraged litigation, the Munras decision supercharges that incentive.

Colorado Court of Appeals Confirms: Prevailing Parties Can Recover “Fees on Fees” — Reinforcing Why Builders Should Strike Attorneys’ Fee Clauses From Their Contracts

December 30, 2025 — David McLain - Colorado Construction Litigation Blog

Colorado developers, builders, and contractors should take notice of a recently published Colorado Court of Appeals decision that increases the financial exposure created by prevailing party attorneys’ fee clauses. In 1046 Munras Properties, L.P. v. Kabod Coffee, 2025 COA 71, the Court held, for the first time in a published Colorado case, that a prevailing party may recover not only contractual attorneys’ fees, but also the attorney fees incurred to obtain those fees. In short: “fees on fees” are now recoverable when a contract contains a broad fee shifting clause.

This development underscores the same warning sounded years ago in a prior HHMR blog post titled, Attorney Fee Clauses Are Engraved Invitations to Sue. If prevailing party fee provisions already encouraged litigation, the Munras decision supercharges that incentive.

Mr. McLain may be contacted at mclain@hhmrlaw.com

Reprinted courtesy of David McLain, Higgins, Hopkins, McLain & Roswell, LLC

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Hail in hands

Boerne UMC owned multiple buildings that were allegedly damaged during a hailstorm that occurred in May 2021.

Insurer’s Late Notice Argument Fails Due to Lack of Prejudice

December 30, 2025 — Tred R. Eyerly - Insurance Law Hawaii

The court refused to dismiss the insured’s claim for hail damage based on late notice because the insurer failed to demonstrate it had suffered prejudice. Borene UMC v. Church Mut. Ins. Co., 2025 U.S. Dist. LEXIS 210767 (W.D. Texas Oct. 27, 2025).

Boerne UMC owned multiple buildings that were allegedly damaged during a hailstorm that occurred in May 2021. In August 2022, Boerne hired a contractor to inspect the roofs. The contractor found damage to several roofs and HVAC units and prepared an estimate for repair of over $700,000. Boerne submitted a claim to its insurer, Church Mutual on November 17, 2022.

Mr. Eyerly may be contacted at te@hawaiilawyer.com

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

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Loudspeaker

Does promptly notifying your insurer of a claim matter?

Promptly Notifying Your Insurer of a Claim Matters

December 30, 2025 — David Adelstein - Florida Construction Legal Updates

Does promptly notifying your insurer of a claim matter? A recent case out of the 11th Circuit Court of Appeals answers this question in the affirmative. MAKE SURE TO PROMPTLY NOTIFY YOUR INSURER OF A POTENTIAL CLAIM.

In L. Squared Industries, Inc. v. Nautilus Ins. Co., 31 Fla.L.Weekly C529a (11th Cir. 2025), an insured owned gas stations and had a claims-made storage tank liability insurance policy. The policy provided: “You must see to it that we are notified as soon as reasonably possible, but in any event, not more than seven (7) days after the insured first became aware of, or should have become aware of a pollution condition which may result in a claim or any action or proceeding to impose an obligation on the insured for cleanup costs . . . .”

Mr. Adelstein may be contacted at dma@kirwinnorris.com

Reprinted courtesy of David Adelstein, Kirwin Norris

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Dispute male and couple

Construction contractors must be careful about where they are building, particularly where permission from neighbors is necessary.

Reckless Disregard is. . . Well. . .Reckless

December 30, 2025 — Christopher G. Hill - Construction Law Musings

Punitive damages are hard to come by in construction law cases. This is because almost all construction contract cases are exactly that: contract cases. Between the economic loss rule and the Virginia Courts’ almost (though not completely) impregnable wall between tort and contract, punitive damages may seem completely out of the picture. Depending on your perspective and position on the construction project food chain, this fact can be either frustrating or comforting.

However, like all seemingly immutable laws, this one has an exception according to the Chesapeake County, Virginia Circuit Court. In Sawyer v. C.L. Pincus Jr. & Co. et. al. this Virginia court was faced with the following scenario. The defendants, a church and its contractor, were sued by Sawyer over a construction swale that was built partly on Sawyer’s property. According to the plaintiff, the only permission they gave to their neighbors at the church was to allow the church to build a drainage berm that did not encroach on their property. As stated above, the church and its contractor built a swale that encroached on the Sawyers’ property.

Mr. Hill may be contacted at chrisghill@constructionlawva.com

Reprinted courtesy of The Law Office of Christopher G. Hill

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Redefined

The agencies call it a step toward clarity and economic growth; others will undoubtedly call it a new chapter in an ongoing jurisdictional saga.

EPA and Army Corps Propose Revised Definition of “Waters of the United States”

December 30, 2025 — Ashleigh Myers & Jillian Marullo - Gravel2Gavel Construction & Real Estate Law Blog

For decades, the phrase “waters of the United States” (WOTUS) has dictated whether a wetland, stream, or pond falls within federal jurisdiction under the Clean Water Act (CWA). Two years and a change in administration later, EPA and the U.S. Army Corps of Engineers have returned with a new proposal aimed at aligning the rulebook with the Supreme Court’s 2023 decision in Sackett v. EPA and restoring a degree of predictability to one of the most litigated terms in environmental law.

According to EPA Administrator Lee Zeldin and Assistant Secretary of the Army for Civil Works Adam Telle, the proposal represents a “faithful” implementation of Sackett, one that narrows federal reach to waters that are relatively permanent and wetlands that are indistinguishably connected to them. The agencies call it a step toward clarity and economic growth; others will undoubtedly call it a new chapter in an ongoing jurisdictional saga.

Reprinted courtesy of Ashleigh Myers, Pillsbury and Jillian Marullo, Pillsbury

Ms. Myers may be contacted at ashleigh.myers@pillsburylaw.com
Ms. Marullo may be contacted at jillian.marullo@pillsburylaw.com

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Woman worried after collision in parking lot

The plaintiff admitted that she was using the parking lot not to visit the subject store, but to avoid traffic and traffic control devices on the main street parallel to this parking lot.

Fort Lauderdale Team Secures Defense Verdict for Client in Premises Liability Lawsuit

December 30, 2025 — Lewis Brisbois Newsroom

Fort Lauderdale, Fla. (October 27, 2025) - Fort Lauderdale Partner Paul Gamm and Associate Amber Dawson recently obtained a complete defense verdict for their client, a grocery store operator, in a premises liability case in Florida state court.

The accident in question occurred in December 2022, when two vehicles collided at an uncontrolled internal parking lot intersection at the grocery store property. The plaintiff refused to blame the other driver, a non-party at trial. The plaintiff alleged that the intersection should have been controlled with a stop sign because it lacked the appropriate sight distance for drivers to perceive threats from oncoming traffic.

The plaintiff filed suit against the client in the 17th Judicial Circuit Court of Florida. She claimed she suffered cervical and lumbar herniations, requiring one facet lumbar fusion and two outstanding surgeries.

Reprinted courtesy of Lewis Brisbois

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Clock Gavel Scale of Justice

The Kahana Feld team demonstrated that the plaintiff had not initiated discovery or scheduled depositions, and furthermore, the delay was not excused by former counsel’s withdrawal.

Dallas County District Court Grants Kahana Feld’s Motion to Dismiss for Want of Prosecution

December 30, 2025 — Kahana Feld

Kahana Feld successfully obtained dismissal of a lawsuit in the 95th Judicial District Court of Dallas County. The Court granted our Motion to Dismiss for Want of Prosecution, agreeing that the plaintiff failed to diligently pursue their claims after more than 18 months of inactivity, despite an upcoming trial date.

Our team demonstrated that the plaintiff had not initiated discovery or scheduled depositions, and furthermore, the delay was not excused by former counsel’s withdrawal. Consequently, the judge declined the plaintiff’s request for additional time and dismissed the case without prejudice.

Reprinted courtesy of Kahana Feld

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Water pouring through hands

EPA frames its proposed WOTUS rule as “fully implementing” Sackett v. EPA and narrowing federal reach.

EPA Proposes New WOTUS Definition, Narrowing Clean Water Act Jurisdiction

December 30, 2025 — Patrick J. Paul, Chris P. Colyer & John Habib - Snell & Wilmer

On November 17, 2025, the United States Environmental Protection Agency (EPA) published a proposed rule that would significantly narrow its regulatory authority over Waters of the United States (WOTUS). Under the new proposed WOTUS rule, EPA would effectively have jurisdiction only over relatively permanent waters and a smaller subset of directly connected wetlands.

The WOTUS definition outlines the geographic reach of the U.S. Army Corps of Engineers’ and EPA’s authority under the 1972 Clean Water Act to regulate streams, wetlands, and other water bodies. As such, it has been reviewed in boardrooms, courtrooms, and government offices for over fifty years. Most recently, on May 25, 2023, the U.S. Supreme Court issued its opinion in Sackett v. EPA. In Sackett, the Supreme Court determined that WOTUS are only (1) relatively permanent bodies of water, such as oceans, lakes, rivers, and streams; or (2) adjacent wetlands indistinguishable from those waters because of a continuous surface connection.

Reprinted courtesy of Patrick J. Paul, Snell & Wilmer, Chris P. Colyer, Snell & Wilmer and John Habib, Snell & Wilmer

Mr. Paul may be contacted at ppaul@swlaw.com
Mr. Colyer may be contacted at ccolyer@swlaw.com
Mr. Habib may be contacted at jhabib@swlaw.com

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Illustration of ballroom

The White House did not specify why they were swapping architects on the project.

Trump Replaces Architect to Lead $300 Million Ballroom Design

December 30, 2025 — Skylar Woodhouse - Bloomberg

President Donald Trump has tapped a new architect to help plan his $300 million White House ballroom wing, assigning the former lead designer to a consultant role in the high-profile and controversial project.

Shalom Baranes Associates, a Washington-based architecture firm, will design the ballroom that will be built in place of the demolished East Wing, according to a White House official. James McCrery, who was previously named to lead the project, will remain in a consulting role.

“Shalom is an accomplished architect whose work has shaped the architectural identity of our nation’s capital for decades and his experience will be a great asset to the completion of this project,” White House spokesman Davis Ingle said.

Reprinted courtesy of Skylar Woodhouse, Bloomberg

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Fill out form

This is the third article in a series of four articles discussing how to properly fill out the four California construction releases described in California Civil Code 8132 – 8138.

How to Properly Fill Out and Use the Conditional Waiver and Release on Final Payment Form Used in California Construction

December 30, 2025 — William L. Porter - Porter Law Group

This is the third article in a series of four articles discussing how to properly fill out the four California construction releases described in California Civil Code 8132 – 8138.

Let me start by noting that in addition to practicing construction law for more than 35 years, I chaired the committee of California construction attorneys who revised those sections of the California Civil Code dealing with this release form and many other construction forms as part of Senate Bill 189 in 2010. I also wrote the first version of this release form and made it free to the public well before the new law took effect in 2012. With this background, let me note a few things about the Conditional Waiver and Release on Final Payment form to help you avoid mistakes that might prevent you from achieving the intended effect of the form or releasing claim rights to a greater extent than you intend.

At the end of this article is a copy of the form itself which includes numbers coinciding with the instructions I will give below. A live electronically fillable version of the form is available on our firm’s website (www.porterlaw.com) under the “Forms” section. It is free and you can fill it out on your screen before printing it out and signing it.

Mr. Porter may be contacted at bporter@porterlaw.com

Reprinted courtesy of William L. Porter, Porter Law Group

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Two construction workers on site with laptop

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.

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.

Mr. Heiskanen may be contacted at aec-business@aepartners.fi

Reprinted courtesy of Aarni Heiskanen, AEC Business

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Apartment tower

New York City Set to See Rise in 99-Unit Apartment Towers

December 30, 2025 — Paulina Cachero - Bloomberg

New York City is getting a surge of new residential buildings with exactly 99 units.

Driven in part by the unintended consequence of a new tax program, developers filed 21 applications for buildings with 99 units in the third quarter, compared to just 13 from 2008 to 2023, according to a report from the Real Estate Board of New York. The trend, experts say, has been fueled by developers seeking to avoid higher worker wages for buildings with 100 or more apartments as part of a new tax incentive.

Reprinted courtesy of Paulina Cachero, Bloomberg

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Data Center under construction

2026 Forecast: Megaprojects, Data Centers Spur Growth Amid Shifting Policies

December 30, 2025 — Alisa Zevin - Engineering News-Record

Following a year of uncertainty in the economy, experts expect much of the same for the construction industry heading into 2026.

Ms. Zevin may be contacted at zevina@enr.com

Reprinted courtesy of Alisa Zevin, Engineering News-Record

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Commercial building after tornado

Inadequate Coverage for Lease Building Becomes Apparent After Loss

December 30, 2025 — Tred R. Eyerly - Insurance Law Hawaii

After the leased commercial building was destroyed by a tornado, a dispute arose over inadequate coverage under a policy that the tenant was obligated to provide. Fort Worth Partners, LLC v. Nilfisk, Inc., 2025 U.S. App. LEXIS 27000 (8th Cir. Oct. 17, 2025).

Nilfisk leased a warehouse building from Fort Worth Partners under the terms of a lease. The warehouse was a 200,000 square foot building comprised of two 100,000 square foot structures. A tornado destroyed the building. All 100,000 square feet of one building and approximately 40,000 square fee of the second building were damaged beyond repair. Nilfisk vacated the building prior to the expiration of the lease.

Mr. Eyerly may be contacted at te@hawaiilawyer.com

Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert

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Seminar

Land Use in South Carolina Seminar

December 30, 2025 — Beverley BevenFlorez – CDJ Staff

This two-day event “will present the various legal and regulatory mechanisms used to plan and regulate growth, real estate development, and other impacts from changes in the use of public and private property.” The seminar “includes both a broad overview for general knowledge and more detailed information on specific topics, such as zoning, annexation, environmental issues, various aspects of local government law, and working with regulators.” It’s relevant for attorneys, land planners, municipal employees, and government employees.

January 27th-28th, 2026
Charleston Marriott
170 Lockwood Boulevard
Charleston SC, 29403

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Homeowner Plans to Sue Over Bear That Won't Leave

In an exclusive interview with KTLA’s Jillian Smukler, he revealed plans to sue the California Department of Fish and Wildlife after being told the state will no longer help.

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Georgia Family Went Out Looking at Christmas Lights. When They Came Back, Their Home Was Gone.

A Carroll County family is struggling this Christmas after a raging fire destroyed their new home while they were out enjoying the holiday, WSB-TV News reported.

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