CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - TUESDAY, AUGUST 4, 2026

Scales and gavel

The case arose from a residential siding dispute involving claims for breach of contract, negligence, negligence per se, breach of warranty, CCPA violations, and mechanic’s lien issues.

Colorado Court Affirms Attorneys’ Fee Award Against Plaintiff’s Counsel for Pursuing Unsupported CCPA Claims

August 3, 2026
David McLain - Colorado Construction Litigation Blog

The Colorado Court of Appeals recently affirmed a trial court’s award of more than $241,000 in attorney fees against a plaintiffs’ attorney who continued to pursue unsupported claims arising out of a residential construction dispute. Although the opinion was not selected for official publication under C.A.R. 35(e) and therefore has no precedential value, it nevertheless provides an instructive reminder that Colorado courts are willing to impose significant financial consequences when claims lack substantial justification.

For builders, developers, contractors, insurers, and defense counsel, the case is worth reading, not because it announces new law, but because it demonstrates that Colorado’s fee-shifting statute remains a meaningful tool when unsupported claims continue long after they should have been abandoned.

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

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

Read the full story…

CDJ NEWS THIS WEEK

Hands holding apple and orange

Although the pay if paid clause is illegal in California, the pay when paid clause is still perfectly legal and is found in many subcontracts that contractors issue to their subcontractors.

The “Pay When Paid” Clause in California Construction—Strategies as the Battle Continues

August 3, 2026 — William L. Porter - Porter Law Group

It is well known in California Construction circles that the “Pay If Paid” clause is illegal in this state. There is a great distinction, though, between this clause and a similar clause, known as a “Pay When Paid” clause. A pay if paid clause allows a contractor to tell a subcontractor that if the contractor is unpaid for the subcontractor’s work, then the contractor has no legal obligation to pay the subcontractor, ever. For a great variety of reasons, the California Supreme Court, in the case of Wm. R. Clarke Corp v. Safeco Ins. Co. of America (1997) 15 Cal.4th 882, declared this type of clause illegal in California Construction.

Although the pay if paid clause is illegal in California, the pay when paid clause is still perfectly legal and is found in many subcontracts that contractors issue to their subcontractors. The pay when paid clause allows a contractor to delay paying its subcontractors until the dispute between the contractor and the property owner over payment has been resolved and the contractor is paid by the property owner. Although seemingly reasonable (since it merely delays payment until the contractor is paid by the owner, thereby providing a funding source to pay subcontractors), significant problems still arise.

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

Reprinted courtesy of William L. Porter, Porter Law Group

Read the full story…

Lien

In a recent case, a window company had the homeowner sign the Notice of Commencement and then filled in the information.

Insufficient Notice of Commencement and Construction Lien Rights

August 3, 2026 — David Adelstein - Florida Construction Legal Updates

When a party is preserving their construction lien rights, the party will look to the recorded Notice of Commencement. This is the recorded document that provides the lienor with the information for purposes of preserving construction lien rights. A Notice to Owner company will typically rely on the Notice of Commencement to serve Notices to Owners from lower tiers not in contract with the owner. However, when it comes to preparing the lien, a lienor should look beyond just the Notice of Commencement and also look to the property appraiser’s website as a backstop.

In a recent case, a window company had the homeowner sign the Notice of Commencement and then filled in the information. The company naturally did this for the convenience of the homeowner that probably was unfamiliar with the Notice of Commencement process. Regardless, information in the Notice of Commencement was inaccurate. It failed to include all the real property owners. Thus, when a payment dispute arose and a construction lien was prepared, it did not identify all of the real property owners. All of the real property owners were added later during the pendency of a lien foreclosure lawsuit. The trial court denied the lien because of the defective / insufficient Notice of Commencement — the lienor assumed the risk of error by filling out the information in the Notice of Commencement. The trial court further denied the lien holding that because the work did not commence within 90 days of the Notice of Commencement, the Notice of Commencement is void.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

Read the full story…

Property burning

The dispute centered on whether one of the insured buildings needed to be completely demolished.

No Bad Faith Despite Insurer’s Appraisal Award Exceeding Initial Payment

August 3, 2026 — Tred R. Eyerly - Insurance Law Hawaii

The federal district court granted the insurer’s motion for summary judgment, finding no bad faith despite the appraisal award exceeding the amount the insurer initially paid. Jazi Kat 4659 Rockridge LLC, et al. v. Travelers Cas. Ins. Co. of Am., et al., 2026 U.S. Dist. LEXIS 105634 (D. Ariz. May 13, 2026).

Plaintiffs sued Travelers for breach of contract and bad faith, alleging that Travelers failed to pay money plaintiffs were owed under the policy. Plaintiffs held a commercial property policy for two properties. A fire destroyed one of the properties. Travelers adjusted the claim and issued two payments. Plaintiffs disagreed with the amount of the payments and demanded an appraisal. Travelers agreed to the appraisal.

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

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

Read the full story…

Signing document

In this article, Snell & Wilmer's break down key considerations, walk through the legal standards Arizona courts apply, and offer practical tips to consider to help you protect your payment rights on the next project.

Pay-If-Paid: What You Need to Know Before Signing on the Dotted Line

August 3, 2026 — Christian Fernandez & Matthew Racioppo - Snell & Wilmer

Buried deep in the fine print of a subcontract, a pay-if-paid clause may be looming. If you are a subcontractor or supplier, misreading these clauses can put your cash flow at risk. If you are an owner or general contractor, drafting them incorrectly can leave you with obligations you never intended — or unenforceable protections you were counting on.

It is more important than ever to understand when pay-if-paid clauses hold up and when they do not, as well as recent litigation and drafting trends. Whether you are negotiating a new agreement, reviewing your standard form contracts, or staring down a payment dispute, understanding how Arizona law treats pay-if-paid clauses is essential. In this article, we break down key considerations, walk through the legal standards Arizona courts apply, and offer practical tips to consider to help you protect your payment rights on the next project.

Reprinted courtesy of Christian Fernandez, Snell & Wilmer and Matthew Racioppo, Snell & Wilmer

Mr. Fernandez may be contacted at cfernandez@swlaw.com
Mr. Racioppo may be contacted at mracioppo@swlaw.com

Read the full story…

Tunnel with worker in it

German-Denmark link progresses below the Baltic Sea.

World's Longest Immersed Tunnel Passes Milestone, But Faces Delays

August 3, 2026 — James Leggate - Engineering News-Record

Work on the $8-billion Fehmarnbelt Tunnel, which is planned to link Germany and Denmark as the world’s longest immersed tunnel, is progressing as crews achieved a milestone last month with the successful immersion of its first precast concrete element. But Danish state-owned project owner Femern A/S says the plan is now running at least two years behind schedule and the tunnel’s road and rail portions will open in two separate stages.

Mr. Leggate may be contacted at leggatej@enr.com

Reprinted courtesy of James Leggate, Engineering News-Record

Read the full story…

Testifying Construction and Building Industry Standard of Care Expert Witness

General Construction Investigation - Licensed General Building Contractor CA, AZ, UT, FL

Certified Professional Estimator (ASPE) American Society of Professional Estimators

Extensive testimony experience attendant to numerous commercial and residential construction defect and claims related expert witness designations

(800) 482-1822

www.berthowe.com

Hand putting in last puzzle piece

DOI has now finalized revisions to the Type A natural resource damages assessment procedures under 43 C.F.R. Part 11 for hazardous substance releases under the CERCLA and the CWA.

DOI Finalizes Long-Awaited Modernization of Type A Natural Resource Damage Assessment Regulations

August 3, 2026 — Amanda G. Halter, Ashleigh K. Myers & Jillian Marullo - Gravel2Gavel Construction & Real Estate Law Blog

For nearly three decades, the U.S. Department of the Interior’s (DOI) simplified “Type A” Natural Resource Damage Assessment (NRDA) regulations were available more in theory than in practice, constrained by dated models, narrow geographic applicability and a $100,000 cap that rarely matched the economics of modern environmental claims. DOI has now finalized revisions to the Type A natural resource damages assessment procedures under 43 C.F.R. Part 11 for hazardous substance releases under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) and the Clean Water Act (CWA), with the final rule published in the Federal Register on July 13, 2026 and scheduled to become effective August 12, 2026.

As discussed previously, DOI has sought to modernize what it views as an “inefficient and inflexible” process and restore the Type A procedure to its intended role as a more streamlined pathway for smaller, less contentious NRD claims. The final rule adopts a $5 million default damages threshold, allows use above that amount if all parties agree, clarifies that Type A may be used in all environments and for all natural resource types, and removes legacy model appendices that had tethered the process to outdated formulas.

Reprinted courtesy of Amanda G. Halter, Pillsbury, Ashleigh K. Myers, Pillsbury and Jillian Marullo, Pillsbury

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

Read the full story…

Submit Article For Publication in CDJ

Share your firm’s publications, events, CLEs, seminars, and articles relevant to construction defect and claims matters. Enhance your firm's visibility and promote your expertise by reaching our highly targeted audience of decision-makers, including construction attorneys, builders, owners, and claims professionals.

Data centers

The moratorium is intended to halt activities while the state government develops a comprehensive legal framework for data center development.

New York Enacts First-in-the-Nation Statewide Data Center Moratorium

August 3, 2026 — Joshua L. Sturtevant - Sheppard

As of May 2026, nearly 12 gigawatts of data center load requests were in the New York Independent System Operator interconnection queue, with more than two-thirds of capacity requests entering the queue in 2025 alone. On July 14, 2026, in response to concerns over this rapid growth, Governor Kathy Hochul issued Executive Order No. 62 (the “Order”) imposing a temporary moratorium on data centers in New York State. Among the concerns cited in the Order are the cost burden on ratepayers associated with transmission upgrades required to accommodate large loads, potential environmental impacts, and large-scale water use.

The moratorium is intended to halt activities while the state government develops a comprehensive legal framework for data center development. While dozens of municipal and county-level moratoriums are in place throughout the U.S., and while the legislatures of several states, including Maine, have proposed moratoriums, the Order is the first statewide moratorium to be enacted nationally.

Mr. Sturtevant may be contacted at jsturtevant@sheppard.com

Reprinted courtesy of Joshua L. Sturtevant, Sheppard

Read the full story…

Risk level cubes next to 2026 2027 cube

A new analytics framework transforms routine safety data into an early-warning system—giving construction leaders a real-time read on where risk is building before anyone gets hurt.

Predict Risk, Not Incidents: A New Analytics Framework for Your Construction Safety Data

August 3, 2026 — Tabrez Zahoor - Construction Executive

Behind every “zero-incidents” company report, hidden hazards may already be accumulating—risks that could become serious injuries tomorrow. The question every executive should be asking is not, “Did anything go wrong last month?” It is: “Where is risk building on my projects right now?”

Most construction organizations cannot answer that question. Not because the data does not exist—it does. Every active project generates daily inspection findings, labor records, near-miss reports and audit results. The problem is that standard safety systems collect this data and then report it in ways that make it operationally useless for prevention. They describe the past. They predict nothing.

The predictive safety analytics framework (PSAF) is a practical, deployable system developed from years of applying data science to large-scale construction portfolio operations that takes the safety data construction organizations already collect and transforms it into a forward-looking risk signal. The result? A single weekly score that tells executives where risk is concentrating across their portfolio before anyone gets hurt.

Reprinted courtesy of Tabrez Zahoor, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Read the full story…

Two Fountain Pens

P&A partners Denis Serkin and Michael S. Zicherman served as co-editors and authors of Lexology’s Panoramic: Construction 2027 – US and Global guide.

Denis Serkin and Michael S. Zicherman Co-Edit/Author Lexology Panoramic: Construction 2027

August 3, 2026 — Denis Serkin & Michael S. Zicherman - Peckar & Abramson, P.C.

P&A partners Denis Serkin and Michael S. Zicherman served as co-editors and authors of Lexology’s Panoramic: Construction 2027 – US and Global guide. Formerly Getting the Deal Through, Lexology Panoramic provides members of the construction industry and construction-related legal and business providers with side-by-side comparison of key industry issues in 19 jurisdictions worldwide.

Reprinted courtesy of Denis Serkin, Peckar & Abramson, P.C. and Michael S. Zicherman, Peckar & Abramson, P.C.

Mr. Serkin may be contacted at dserkin@pecklaw.com
Mr. Zicherman may be contacted at mzicherman@pecklaw.com

Read the full story…

Congratulations

Please join Lewis Brisbois in congratulating Mr. Aihie on this recognition.

Jonathan Aihie Named to The National Bar Association’s “Top 40 Under 40” List

August 3, 2026 — Lewis Brisbois

Fort Lauderdale Partner Jonathan Aihie was recently named to The National Bar Association (NBA) “Top 40 Under 40” list.

The NBA “Top 40 Under 40” recognizes the nation's top lawyers under the age of 40 who demonstrate professional excellence, leadership, and commitment to the community. Recipients represent a broad cross-section of the legal profession, including private practice, government, academia, the judiciary, corporate counsel, and public service.

Reprinted courtesy of Lewis Brisbois

Read the full story…

Five star ranking

Gordon Rees Scully Mansukhani has been recognized byTexas Lawyer in its 2026 Texas 100 ranking, earning the No. 49 spot among the state’s largest law firms by attorney headcount.

GRSM Ranked Among Texas’ 50 Largest Law Firms by Texas Lawyer

August 3, 2026 — Gordon Rees Scully Mansukhani

Gordon Rees Scully Mansukhani has been recognized byTexas Lawyer in its 2026 Texas 100 ranking, earning the No. 49 spot among the state’s largest law firms by attorney headcount. The annual report spotlights the continued strength of Texas’ legal market, with firms across the state collectively increasing lawyer headcount by 2% in 2025.

“Texas continues to be one of the country’s most thriving legal and business markets, and we are proud to be recognized among the state’s largest law firms,” said Laura De Santos, Regional Oversight Partner for Texas. “Our continued growth shows the confidence our clients place in us, the exceptional talent of our attorneys, and our commitment to delivering seamless, high-quality legal services throughout Texas and across our 50-state platform.”

Reprinted courtesy of Gordon Rees Scully Mansukhani

Read the full story…

AI hologram from laptop

Uncover the potential of AI in AEC education, improving teamwork and collaboration for future industry professionals in high-value projects.

AI Can Now Train the Soft Skills Construction Ignored

August 3, 2026 — Aarni Heiskanen - AEC Business

Most AEC professionals learn to work in teams and across teams through trial and error. There are, however, opportunities to better prepare for the real world with formal training. Until now, it has required human facilitators. Now, generative AI is emerging as a scalable alternative, which I’m also exploring.

A Gap in Curricula
When I studied architecture, most of the teamwork happened with co-students in the same department. However, one course focused on industrial projects where future architects and engineers collaborated on a simulated project. I’m not sure if a similar course is still in the curriculum, but it was certainly worthwhile and should have been much more extensive.

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

Reprinted courtesy of Aarni Heiskanen, AEC Business

Read the full story…

Consulting Design and Architecture Expert Witness

Forensic Architect CA, AZ, NV, CO, TX, UT, FL, NM, OK - NCARB - National Council of Architectural Registration Boards

California Architectural Registration Board Supplemental Examination Commissioner

(800) 482-1822

www.berthowe.com

Top of home with storm clouds in sky

Intensifying Wildfires and Hurricanes Raise New Questions About How America Builds Homes

August 3, 2026 — Concrete Masonry Checkoff - PRNewswire

DENVER, July 31, 2026 /PRNewswire/ -- The 2026 natural hazards season is underway, with smoke already filling the skies across the West and Atlantic waters beginning to churn. As hurricanes and wildfires pose threats this summer, millions of Americans will face them in homes not designed to withstand these risks.

According to the National Interagency Fire Center, more than 3 million acres have already burned across the U.S. this year — a surge that sits 64% above the same period in 2025 (January 1-July 2).

The National Oceanic and Atmospheric Administration forecasts an active 2026 Atlantic hurricane season, with eight to 14 named storms and increasing opportunities for rapid intensification of those storms due to warming ocean temperatures.

How Has America's Housing Stock Kept Pace With These Realities?
Yet despite growing disaster risks, the United States continues to rely overwhelmingly on wood-frame residential construction. By contrast, concrete, brick and stone masonry remain the predominant materials for housing across much of the developed world, where durability and resilience have long been priorities.

"As disaster losses continue to mount, communities should be asking whether the homes we build today are designed for the risks they are likely to face tomorrow," says James Cain, President of Southeast Concrete Masonry Association. "For most families, a home is their largest financial investment. They shouldn't have to worry about it burning or blowing away."

Restoring CMU's Relevance With Design Community
In 2025, the Concrete Masonry Checkoff launched the Block Design Collective (BDC), where architects, engineers and contractors can access free CMU design assistance.

The BDC connects project teams with regional technical directors and consultants who help integrate concrete masonry into projects while meeting performance and budget goals.

Data Center Under Construction

Data Center Demand Drives Construction

August 3, 2026 — Construction Executive

The AI-fueled data center boom continues to be one of construction’s strongest growth drivers in 2026, with major contractors reporting strong backlogs, rising revenues and expanding opportunities tied to digital infrastructure projects. Executives across the industry said demand for hyperscale facilities remains robust even as other construction sectors soften.

Reprinted courtesy of Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.

Read the full story…

Earth from space showing networks

Global Insights Center: Monthly Newsletter

August 3, 2026 — Global Insights Center Staff - The Hartford

June in Review
Consumer inflation accelerated to 4.2% in May, the fastest pace in several years, driven largely by higher energy costs. But inflation has also begun to increase beyond energy prices. Areas such as financial services, transportation, and healthcare all experienced notable cost increases, alongside an acceleration in technology-related goods tied to AI investment. Inflation is now outpacing wage gains and household purchasing power is declining, which is likely to weigh on consumer spending.

Price pressures are even more pronounced earlier in the supply chain, with wholesale inflation outpacing consumer inflation. Wholesale inflation is extending beyond energy costs into inputs such as manufacturing materials and construction supplies. These rising upstream costs are likely to either pass through into consumer prices or strain business profit margins.

Reprinted courtesy of Global Insights Center Staff, The Hartford

Read the full story…

Boston Massachusetts Charles River

ABA’s Forum on Construction Law 2026 Fall Conference

August 3, 2026 — Beverley BevenFlorez – CDJ Staff

ABA’s three-day fall event, "Construction Claims Summit: Issues Driving Today’s Construction Disputes," delves into the Forum's history while also covering the future of claims prosecution. The program will cover topics such as “delays, defective work, supply chain disruption, design busts, differing site conditions, default terminations, and dealing with fraud and bad faith in the context of construction claims.” The event will also include networking opportunities.

October 21st-23rd, 2026
The Westin Copley Place, Boston
10 Huntington Avenue
Boston, MA 02116

Read the full story…

Subscribe to CDJ Newsletter

Weekly Construction Defect and Claims News  - Direct to Your Inbox

More Than 9000 Construction Defect and Claims Related Expert Witness Engagements

Bert L.. Howe & Associates, Inc., provides construction-related expert witness investigation and trial support services to the nation's most recognized publicly traded builders, commercial general liability carriers, law firms, and construction practice groups. To schedule a no-cost consultation with a construction or design expert possessing the credentials, licensures, and qualifications best suited to your matter, please contact us at 800.482.1822

Arrange Consultation

Wildfires In Europe Compared to Disaster of World War Two | BBC News

In France, the wildfires have been described as the worst disaster since World War Two, BBC reported.

CDJ Video Channel

Outrage Over Lineage Rebuilding Permits in Boyle Heights

The operator of a massive warehouse that burned in Boyle Heights last month has filed for a permit to rebuild while residents are still living with the stench of rotting food and swarms of giant flies that have arrived to feast on it. The move has outraged local officials and residents. Carlos Saucedo reports.

CDJ Video Channel


Consulting General Contractor - Certified Construction Cost Estimating Expert Witness

Certified Professional Estimator (ASPE) American Society of Professional Estimators

Licensed General Contractor (778968), State of California, Licensed General Contractor (072729), State of Nevada

Fire Loss Reconstruction Cost Estimating Expert

(800) 482-1822

www.berthowe.com