CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - TUESDAY, OCTOBER 6, 2026

No! blocks on hand

These are things you don’t do.

Miller Act Payment Bond Claim “No Nos!”

October 6, 2026
David Adelstein - Florida Construction Legal Updates

A recent federal district court opinion, Sauer Construction, LLC v. United Structures of Georgia, LLC, 2026 WL 2522849 (M.D.Fla. 2026), addressed two worthy considerations when it comes to a Miller Act payment bond claim. And, when I am talking about considerations, I am really talking about “no-nos.” These are things you don’t do.

First, don’t file an untimely Miller Act payment bond lawsuit. Make sure, as a claimant, you file that lawsuit within one year from your final furnishing. In this case, the subcontractor claimant did not and tried to argue around the statute of limitations with an equitable tolling argument, i.e., that the statute of limitations should be equitably tolled to accommodate the late filing of the lawsuit. Guess what? The subcontractor was not successful. You are fighting an uphill (losing) battle when arguing equitable tolling because “traditional equitable tolling principles require that the claimant demonstrate extraordinary circumstances, such as fraud, misinformation, or deliberate concealment.” Sauer Construction, supra. This means you need ultra-persuasive evidence to support such equitable tolling principles. Actually, having this evidence is doubtful. Thus, timely file the Miller Act payment bond lawsuit. There is no legitimate reason not to.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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CDJ NEWS THIS WEEK



Umbrella inside out symbolizing no coverage

The federal district court denied cross motions seeking to establish whether the policy covered damage due to smells in the insureds’ newly purchased home.

Court Denies Cross Summary Judgment Motions on Coverage for Odors in Newly Purchased Home

October 6, 2026 — Tred R. Eyerly - Insurance Law Hawaii

The federal district court denied cross motions seeking to establish whether the policy covered damage due to smells in the insureds’ newly purchased home. Akina v. State Farm Fire & Cas. Ins. Co., 2026 U.S Dist. LEXIS 162817 (W. D. Wash. July 22, 2026).

Plaintiffs bought a home in May 2024 but never conducted an inspection before purchasing the property. Before moving in, plaintiffs secured a homeowners’ polilcy from State Farm.

After moving in, plaintiffs began noticing smells in the house and started suffering from health symptoms. Plaintiffs learned from neighbors that the prior occupants had been witnessed in “drug activity.” Plaintiffs moved out of the house and had testing done. The home tested positive for methamphetamine pollution.

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

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

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Sustainable building

Part II offers a non-exhaustive list of practical guidance for addressing these issues and reducing those risks.

Achieving Sustainability Through Design Build Delivery: Part II – A Framework for Managing Sustainability Objectives on Private Commercial Construction

October 6, 2026 — Jennifer Harris, Tiffany Harrod & Joshua Pruett - ConsensusDocs

Part I of this series traced the history and development of sustainability in construction and explained why design-build (“DB”) contracting is particularly well suited to achieve sustainability objectives. But selecting DB contracting does not by itself ensure a sustainable outcome. The parties must define their sustainability objectives with precision, establish measurable performance criteria and identify who will measure compliance with the criteria, and also draft contract terms that clearly and fairly allocate the associated responsibilities and risks. Otherwise, the completed project may fall short of its sustainability objectives and expose the parties to claims, disputes, and litigation. Part II offers a non-exhaustive list of practical guidance for addressing these issues and reducing those risks.

This article references the ConsensusDocs 310 Green Building Addendum, in conjunction with an agreement between the Owner and the Design-Builder (e.g., ConsensusDocs 415)[1], [2] and AIA Document E204–2017 Sustainable Projects Exhibit,[3] together with AIA A141,[4] as its contractual baseline. The five-part framework that follows is a roadmap for allocating sustainability risk between private owners and design-builders: define the requirements, identify hidden performance guarantees, map out the sustainable objective, address third-party certification risk, and track performance against agreed benchmarks.

Reprinted courtesy of Jennifer Harris, Peckar & Abramson, P.C., Tiffany Harrod, Peckar & Abramson, P.C. and Joshua Pruett, Peckar & Abramson, P.C.

Ms. Harris may be contacted at jharris@pecklaw.com
Ms. Harrod may be contacted at tharrod@pecklaw.com
Mr. Pruett may be contacted at jpruett@pecklaw.com

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PFAs water magnifying glass

This decision is already being invoked in a separate D.C. Circuit challenge to EPA’s 2024 PFAS drinking water rule promulgated under the Safe Drinking Water Act (SDWA).

From CERCLA to Drinking Water: D.C. Circuit’s PFAS Ruling Enters a Second Regulatory Fight

October 6, 2026 — Ashleigh K. Myers, Amanda G. Halter & Jillian Marullo - Gravel2Gavel Construction & Real Estate Law Blog

On August 18, 2026, a unanimous panel of the U.S. Court of Appeals for the D.C. Circuit upheld EPA’s designation of perfluorooctanoic acid (PFOA) and perfluorooctanesulfonic acid (PFOS) as hazardous substances under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA or Superfund). In Chamber of Commerce of the United States v. EPA, the court rejected challenges to EPA’s interpretation of CERCLA Section 102(a), the adequacy of its notice and comment process, its analysis of costs and benefits, and its decision to proceed despite uncertainty about future response actions and costs.

This decision is already being invoked in a separate D.C. Circuit challenge to EPA’s 2024 PFAS drinking water rule promulgated under the Safe Drinking Water Act (SDWA). Six days after the CERCLA decision, respondent intervenors cited it as supplemental authority in American Water Works Association v. EPA, No. 24-1188, ahead of oral argument scheduled for September 18, 2026. The Chamber of Commerce decision may assist the respondent intervenors on certain notice and comment and economic analysis arguments, but its significance should not be overstated. The principal challenges to the standards for the four PFAS subject to EPA’s Hazard Index-based maximum contaminant level (MCL) turn on requirements specific to the SDWA, and EPA itself now agrees that those provisions were promulgated through an unlawful process.

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

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

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Supreme Court

Alexander Hopkins recently authored an Expert Analysis for Law360 examining a recent Wisconsin Supreme Court decision addressing coverage for water damage arising from alleged construction defects.

Alexander Hopkins Authors Law360 Article on Wisconsin Supreme Court Coverage Decision

October 6, 2026 — Alexander G. Hopkins - SDV Fenchurch

Alexander Hopkins recently authored an Expert Analysis for Law360 examining a recent Wisconsin Supreme Court decision addressing coverage for water damage arising from alleged construction defects.

In “Wis. Coverage Ruling Rejects Strict Ensuing Loss Test,” Alex explores the relationship between construction defect exclusions and ensuing loss provisions, and what the decision means for policyholders seeking coverage when an excluded condition contributes to subsequent damage.

Mr. Hopkins may be contacted at alexander.hopkins@sdvfenchurch.us

Reprinted courtesy of Alexander G. Hopkins, SDV Fenchurch

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Orlando Florida Skyline

For more than a decade, Ms. Martin has litigated matters in the fields of criminal defense, first-party property, and insurance disputes, taking cases and claims from inception through jury trial.

Trial-Tested Property Litigator Kimberlee Martin Joins Ball Janik LLP's Orlando Construction Defect Team

October 6, 2026 — Ball Janik LLP

ORLANDO, FL, September 30, 2026 — Ball Janik LLP has added Kimberlee A. Martin to its Construction Defect Practice Group as an associate in the firm's Orlando office. For more than a decade, she has litigated matters in the fields of criminal defense, first-party property, and insurance disputes, taking cases and claims from inception through jury trial. It's the same path many of Ball Janik's clients face when construction goes wrong, and her arrival deepens the firm's trial bench in Central Florida.

"Florida property owners are dealing with complex building problems and less time to act on them. That puts a premium on attorneys who can take a case the distance," said James C. Prichard, Managing Partner of Ball Janik LLP. "Kimberlee has carried property and insurance claims from pre-suit all the way through trial, working hand in hand with experts along the way. Community associations and commercial property owners need exactly that combination, and she brings it to our team on day one."

Most recently, Kimberlee served as Litigation Director, where she oversaw homeowners' property claims in pre-suit and litigation, managed a substantial caseload, and guided associate attorneys on litigation strategy. Her civil work includes jury trials, summary judgment and dismissal motions, expert and witness depositions, mediations, and site inspections, along with close coordination with contractors, consultants, and other experts.

That skill set maps directly onto construction defect and insurance recovery litigation, where cases often turn on site evidence, expert testimony, and a credible readiness to go to trial.

"I've seen firsthand how much is at stake when a building has problems: owners' investments, residents' homes, and everyone's peace of mind," said Kimberlee. "Ball Janik is focused on exactly those clients, which made this a natural next step for my practice. I'm excited to join this team and help property owners hold the responsible parties accountable and get their buildings repaired."

Kimberlee earned her J.D., cum laude, from Florida International University College of Law and her B.A. in political science, with a minor in legal studies, from the University of Central Florida.

About Ball Janik LLP
Ball Janik LLP is a Florida-based law firm offering construction defect, construction law, insurance recovery, and commercial litigation counsel, to its local and national clients. The firm was founded in 1982 and has expanded its capabilities, professionals, and geographic footprint. What started as a small firm focused on real property, land use, and litigation (known then as Ball Janik & Novack) has grown to a team of 70-plus attorneys and paralegals in five offices in Florida, with centuries of combined experience and capabilities. The firm has been recognized by Chambers USA, including for its construction law capabilities in Florida, U.S. News & World Report and Best Lawyers®, The Best Lawyers in America©, Super Lawyers, and Corporate International. Read more at www.balljanik.com.

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AI

Mr. Katz noted that these zeroes "appear to be piling up" as private equity firms and third-party litigation funding groups have come to increasingly view lawsuits as a revenue stream.

Greg Katz Quoted in Insurance Journal Article About How Big Data & AI Are Driving Up Verdicts, Settlements

October 6, 2026 — Lewis Brisbois

National Managing Partner Greg Katz was recently quoted in an Insurance Journal article about how plaintiff's lawyers are harnessing big data and artificial intelligence to attempt to drive up jury awards and settlement demands.

The article, titled "The Big Data/AI ‘Revolution’ Is Driving Up Verdicts, Settlements as Plaintiffs Buy In," points out that a growing number of personal injury and claims law firms, some of which are working with an influx of cash from investors and litigation funders, are using a multitude of high-tech tools to try to gain an advantage in litigation. They are using large online mock juries to test legal theories, big data to find sympathetic jurors and venues in which to try cases, and AI programs to analyze their own arguments and those of opponents.

“They’re taking instincts and intuition out of the equation,” Mr. Katz told Insurance Journal. “They think they’ve come up with a different way to ring the bell and, in their words, add zeroes to awards.”

Reprinted courtesy of Lewis Brisbois

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Five star ranking

“Lawyer of the Year” recognition is awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region.

373 Snell & Wilmer Attorneys Recognized in the 2027 Edition of The Best Lawyers in America®

October 6, 2026 — Snell & Wilmer

PHOENIX – Snell & Wilmer is pleased to announce that 373 of the firm’s attorneys were recently selected by their peers for inclusion in the 2027 edition of The Best Lawyers in America® including the prestigious “Lawyer of the Year” honors, and “Ones to Watch” list. Attorneys listed as Ones to Watch typically have been in practice for five to nine years.

“Lawyer of the Year” recognition is awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized for each practice area and location. The following Snell & Wilmer attorneys were named 2027 “Lawyer of the Year” award recipients: Cortland P. Andrews, Troy J. Aramburu, Brian L. Blaylock, M. Lawrence Brown, Brian D. Cunningham, Michael M. Donahey, Jason Ebe, Matthew P. Fischer, Brett W. Johnson, Nathan G. Kanute, William A. Kastin, Timothy J. Kay, James D. Kilroy, Joseph A. Kroeger, Matthew L. Lalli, John F. Lomax, Anne M. Meyer, Robin L. Miskell, Patrick J. Paul, Amit D. Ranade, and M. Roxanne Veliz.

Reprinted courtesy of Snell & Wilmer

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United States Map

The guide provides a comprehensive state-by-state analysis of how electronic execution may affect sureties’ rights under general agreements of indemnity, addressing key issues involving electronic signatures, remote online notarization, and powers of attorney across all 50 states and Puerto Rico.

Michael C. Zisa and Phillip Boldt Co-Author D.C. Chapter of “50-State Guide to Electronic Execution of the General Agreement of Indemnity”

October 6, 2026 — Michael C. Zisa & Phillip Boldt - Peckar & Abramson, P.C.

Michael C. Zisa, Co-Managing Partner of P&A’s Washington, D.C. office, Chair of the Surety and Construction Related Insurance Defense practice, and Co-Chair of the Crisis Management team, and Phillip Boldt, an Associate in P&A’s Washington, D.C. office, have co-authored the District of Columbia chapter of the American Bar Association (ABA) Fidelity and Surety Law Committee and The Surety & Fidelity Association of America’s (SFAA), “50-State Guide to Electronic Execution of the General Agreement of Indemnity.”

Reprinted courtesy of Michael C. Zisa, Peckar & Abramson, P.C. and Phillip Boldt, Peckar & Abramson, P.C.

Mr. Zisa may be contacted at mzisa@pecklaw.com
Mr. Boldt may be contacted at pboldt@pecklaw.com

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Exclamation point on motherboard

The Wall Street Journal reported that a criminal hacker group gained control of the pipeline system, which supplies about 45% of refined petroleum products to 14 East Coast states, by compromising one of the company’s virtual private networks.

The Race to Reengineer Cybersecurity

October 6, 2026 — Emell D. Adolphus - Engineering News-Record

It took six days for Colonial Pipeline Co.'s 5,500-plus miles of connected refined petroleum supply infrastructure from Houston to New York City, to come back on line after a May 7, 2021 ransomware cyberattack forced the company to shut down operations and pay $4.4 million for restoration.

Mr. Adolphus may be contacted at adolphuse@enr.com

Reprinted courtesy of Emell D. Adolphus, Engineering News-Record

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Woman walking up steps in sky

Special counsel Lorelie (Lorie) Masters was recently appointed as the chair of the American Bar Association’s Commission on Women in the Profession.

Special Counsel Lorelie (Lorie) Masters Appointed Chair of the ABA’s Commission on Women in the Profession

October 6, 2026 — Hunton Andrews Kurth LLP

Special counsel Lorelie (Lorie) Masters was recently appointed as the chair of the American Bar Association’s Commission on Women in the Profession. Established in 1987, the Commission was created to assess the status of women in the legal sector and remove barriers to their professional advancement. As chair, Lorie will lead a 12-member roster of commissioners, and a panel of special advisers, dedicated to ensuring equal participation and systemic equity for women lawyers across the justice system and pursuing various studies to identify issues uniquely facing women in the profession, including disparate treatment, training and recruitment, parenting, and other issues. Most recently, the Commission in late July 2026 issued a groundbreaking study about issues affecting the mental health and well-being of women lawyers.

Reprinted courtesy of Hunton Andrews Kurth LLP

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Yellow airplane flying its own path

From payment disputes to contract negotiations to legal and regulatory trends, top construction law experts answer industry questions.

Executive Insights 2026: Leaders in Construction Law

October 6, 2026 — Construction Executive

What advice would you give contractors regarding documentation and recordkeeping to better protect themselves during disputes?

Jim Archibald
Partner
Bradley Arant Boult Cummings LLP
Disputes over payment, scope and delays are among the biggest risks contractors face. Thorough documentation doesn’t just help win these disputes; it may prevent them from happening at all.

Start with the contract: Every project should begin with a written agreement that clearly defines scope, schedule, payment terms and change-order procedures. Verbal understandings are difficult to enforce.

Track changes in real time: Change orders, change directives, RFIs and scope clarifications should always be documented in writing.

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

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Nordic data center

The Nordics are Europe's next data center hub, and Google's 13-billion-euro investment in Finland shows why.

Nordics Are Europe’s Next Data Center Hub

October 5, 2026 — Aarni Heiskanen - AEC Business

On September 9, 2026, Google announced its largest single investment in Europe. The company commits at least €13 billion to Finnish data centers and energy infrastructure in 2027 and 2028, expanding the existing Hamina campus and adding three new sites in Kajaani, Muhos, and Vaala. For the construction sector, this is great news: thousands of hectares, dozens of buildings, and a construction program that will extend well beyond the two-year investment window.

Four Sites, One Regional Cluster
Google is not a newcomer in Finland. Back in 2009, it converted a former paper mill in Hamina into a seawater-cooled data center. It has invested around €4.5 billion there over 15 years, and the site’s waste heat already feeds Hamina’s district heating network. The new program shifts the center of gravity north, to the border of North Ostrobothnia and Kainuu.

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

Reprinted courtesy of Aarni Heiskanen, AEC Business

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Welcome to Vail Arizona

Mattamy Homes Opens Two New Communities at Rocking K in Vail, AZ

October 5, 2026 — Mattamy Homes

TUCSON, Ariz., Aug. 18, 2026 /CNW/ -- Mattamy Homes, North America's largest family-owned homebuilder, has opened two new neighborhoods in Rocking K, a growing master-planned community in Vail, Arizona. Alamar at Rocking K and Covena Pointe at Rocking K are now selling and offer a range of single-family homes for homebuyers seeking outdoor recreation, highly rated schools and scenic desert views.

"The success we've seen at Oasis at Rocking K demonstrates just how appealing this community has become for homebuyers across Southern Arizona," said Anjela Salyer, President of Mattamy Homes' Tucson Division. "With Oasis nearing completion and Alamar and Covena Pointe now open, we're excited to offer even more opportunities for families, professionals and empty nesters looking to call Rocking K home."

Located within minutes of one another, Alamar and Covena Pointe each offer a distinct living experience while benefiting from the amenities and lifestyle available throughout Rocking K.

About Mattamy Homes
Mattamy Homes is the largest family-owned homebuilder in North America, with more than 48 years of operations history across the United States and Canada. Every year, Mattamy helps more than 8,000 families realize their dream of homeownership. In the United States, the company is represented in 11 markets: Dallas, Charlotte, Raleigh, Phoenix, Tucson, Jacksonville, Orlando (where its U.S. head office is located), Tampa, Sarasota, Naples and Southeast Florida. In Canada, its communities stretch across the Greater Toronto Area, Ottawa, Calgary and Edmonton. Visit mattamyhomes.com for more information.

Market solutions meeting

ENR's Top 250 International Contractors Dig Into Market Solutions

October 5, 2026 — Emell D. Adolphus & Jonathan Keller - Engineering News-Record

A complex market yields competitive solutions, according to comments from this year’s ENR Top 250 International Contractors. Amid intensifying geopolitical instability, supply chain disruptions, shifting construction costs and weather-related schedule delays amplified by climate change, contractors say proactive risk mitigation is keeping many projects in play—as evidenced by a 9.7% rise in total revenue for Top 250 companies last year, from $501.2 to $550.6 billion. Yet as economic uncertainty puts profitability of some projects under increased pressure, contractors say strengthening local relationships is more important now than ever.

Reprinted courtesy of Emell D. Adolphus, ENR and Jonathan Keller, ENR

Mr. Adolphus may be contacted at adolphuse@enr.com
Mr. Keller may be contacted at kellerj@enr.com

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Lawsuit

WTW Sues Lockton After 18 Construction Insurance Brokers Jump Ship

October 5, 2026 — Bryan Gottlieb - Engineering News-Record

Willis Towers Watson sued rival insurance broker Lockton Aug. 24 after 18 members of the former's construction practice resigned within 44 minutes and joined the competitor, alleging that 13 client accounts began moving immediately afterward.

Mr. Gottlieb may be contacted at gottliebb@enr.com

Reprinted courtesy of Bryan Gottlieb, Engineering News-Record

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Seminar

13th Annual Northwest Insurance Law Seminar

October 5, 2026 — Beverley BevenFlorez – CDJ Staff

This two-day event “is designed to provide practitioners and insurance professionals with an update on new developments affecting the insurance industry in the Pacific Northwest.” The conference is relevant “to anyone associated with the insurance industry, particularly those involved in insurance claims.” In addition, the event “will feature attorneys from Washington, Oregon, and Idaho with a range of experience in representing insurers and policyholders and will include timely discussions on insurance cases that should not be missed.”

October 27th-28th, 2026
Royal Sonesta Portland Downtown
506 SW Washington St
Portland OR, 97204

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BJ's Roof Collapses as New Jersey Floods; NYC Streets Under Water | NBC New York

The sheer weight of Monday’s rain caused a wholesale store’s roof to collapse in New Jersey. Flooded streets were too much for some drivers in New York. The weather pains followed an already stormy weekend. NBC New York’s Chris Glorioso, Adam Harding, Gus Rosendale and Lynda Baquero report.

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Video Captures Laguna Beach Cliff Collapsing Near Lookout

A section of a Laguna Beach cliff collapsed near a popular coastal lookout, and video captured by a local artist shows the moments leading up to the dramatic rockslide, KTLA 5 News reported.

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