CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - WEDNESDAY, MAY 13, 2026

Star Trophy

Chad Dunigan is nationally recognized for delivering exceptional results across all phases of complex construction litigation.

WSHB Managing Partner Chad Dunigan Named Finalist for Jerrold S. Oliver "Ollie" Award of Excellence

May 12, 2026
Wood Smith Henning Berman

Chad Dunigan, Managing Partner of Wood Smith Henning & Berman's Orlando, Florida, office, has been selected as one of just four finalists for the prestigious Jerrold S. Oliver Award of Excellence, affectionately known in the construction defect community as the "Ollie" Award. This distinguished honor recognizes individuals who have made exceptional contributions and demonstrated unwavering dedication to advancing the field of construction defect law.

Named in honor of the late Judge Jerrold S. Oliver, a revered founder of alternative dispute resolution in construction defect claims and litigation, the Ollie award symbolizes loyalty, commitment, and trust within the industry. Judge Oliver's legacy as a staunch believer in the resolution process continues to inspire professionals who strive for excellence in the construction defect community.

Reprinted courtesy of Wood Smith Henning Berman

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CDJ NEWS THIS WEEK



Hawaii storm on beach

Here is a brief look at what may be covered and which exclusions may be troublesome in homeowners’ and commercial property policies.

Pursuing Claims for Loss Caused by Recent Kona Low Storms for Homeowners and Businesses

May 12, 2026 — Tred R. Eyerly - Insurance Law Hawaii

The recent Kona Low storms that hit all islands were devastating, causing significant property damage. Homeowners and businesses will be seeking coverage under their insurance policies to recover for their losses. Here is a brief look at what may be covered and which exclusions may be troublesome in homeowners’ and commercial property policies.

Typically, both a homeowners’ policy and a commercial property policy include a grant of coverage for “direct physical loss of or damage to Covered Property.” Covered perils are listed, including such events as fire, lightning, or windstorm. Covered Property includes dwellings, other structures on the property and personal property. Additional coverages are usually provided. This includes debris removal after a peril insured against or collapse of a structure. In a homeowners’ policy, additional living expenses are likely covered when the damaged home is not fit to live in.

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

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

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Judge with gavel

At issue was whether California’s Public Utilities Code shifted the common law duty to maintain certain utility equipment in residential areas within Southern California.

Motion for Summary Judgment Granted in Significant California Public Utilities Suit

May 12, 2026 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

Congratulations to Partner Mike D’Andrea and Associates Ruth Rasiah and Kaylah Abdullah in the Los Angeles office for obtaining a complete dismissal of their clients in a significant claim involving California’s Public Utilities regulations.

After lengthy litigation, BWB&O’s Motion for Summary Judgment was granted against Claimant, Spectrum (Charter Communications), which resulted in a complete dismissal of the action against BWB&O’s clients. At issue was whether California’s Public Utilities Code shifted the common law duty to maintain certain utility equipment in residential areas within Southern California. After significant briefing, the Superior Court found that BWB&O correctly argued that the Public Utilities Code required utility companies, like Spectrum, to fully maintain utility equipment, and that private residents are not responsible for utility maintenance (even if the physical equipment is located on private property).

Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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Court exterior

The Ninth Circuit recently addressed the issue of whether general liability policies issued in the 1960s and 1970s included aggregate limits for claims arising under the premises-operations coverage in CGL policies.

Ninth Circuit Holds That Policies Covering Environmental Claims Do Not Have Aggregate Limits

May 12, 2026 — Lorelie S. Masters & Joseph T. Niczky - Hunton Insurance Recovery Blog

In the case of County of San Bernardino v. Insurance Company of the State of Pennsylvania, the Ninth Circuit recently addressed the issue of whether general liability policies issued in the 1960s and 1970s included aggregate limits for claims arising under the premises-operations coverage in CGL policies. The difference between the policyholder’s interpretation of the policies’ limits clauses and the insurer’s interpretation was worth hundreds of millions of dollars in exposure for the insurer. The Court closely examined the policy language and extrinsic evidence from both the insurance industry’s drafting history and the parties before concluding that the policies were ambiguous. The Court construed that ambiguity in favor of the policyholder and ruled that aggregate limits did not apply to the claims at issue. The Court’s decision underscores the importance of carefully examining a policy’s limits, especially for older policies written before 1986 when the insurance industry revised the standard-form CGL policy to state the aggregate limits apply not only to products liability claims but to premises-operations claims as well. Decades of insurance industry drafting history confirms, as the policyholder’s submissions in this case indicate, that the industry well understood that operations claims like the environmental waste-disposal claims at issue here typically were not subject to aggregate limits.

Reprinted courtesy of Lorelie S. Masters, Hunton Andrews Kurth LLP and Joseph T. Niczky, Hunton Andrews Kurth LLP

Ms. Masters may be contacted at lmasters@hunton.com
Mr. Niczky may be contacted at jniczky@hunton.com

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Pen lying on contract

A case dealt with the potential conflict with prefatory language in an agreement compared with operative provisions in the agreement.

Prefatory Contract Language Cannot Be Used to Create an Ambiguity with Operative Provisions

May 12, 2026 — David Adelstein - Florida Construction Legal Updates

Contract drafting and interpretation matters.

A case dealt with the potential conflict with prefatory language in an agreement compared with operative provisions in the agreement. The trial court held that the operative provisions control. I discussed this case here where the appellate court reversed based on the prefatory language.

But, through a motion for rehearing, the appellate court reconsidered its position and affirmed the trial court based on the operative provisions, mainly that the prefatory language cannot be used to create an ambiguity with operative provisions. Consider this explanation in affirming the trial court:

Because the trial court correctly found that the initial language in the contract was prefatory and could not be used to create an ambiguity in the remainder of the contract, we affirm the final judgment.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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Two suits shaking hands in front of mediator

Archer Western-de Moya battles to collect much more from insurers.

HDR Agreed to $12M Settlement With Miami Bridge Design-Build Team

May 12, 2026 — Richard Korman - Engineering News-Record

HDR last year agreed to pay $12 million to the design-build construction contractor Archer Western-de Moya Group to settle its claims that the engineer had incompletely designed and under-designed Miami's new Signature Bridge when the joint venture committed to a fixed price prior to construction in 2018.

Mr. Korman may be contacted at kormanr@enr.com

Reprinted courtesy of Richard Korman, Engineering News-Record

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Arizona aerial view

In a significant development for Arizona’s business community and environmental policymakers, the EPA has paused its planned reclassification of Maricopa County from “Moderate” to “Serious” ozone nonattainment status.

EPA Steps Back, Arizona Moves Forward

May 12, 2026 — Patrick J. Paul, John Habib & Sukhmani K. Singh - Snell & Wilmer

In a significant development for Arizona’s business community and environmental policymakers, the U.S. Environmental Protection Agency (EPA) has paused its planned reclassification of Maricopa County from “Moderate” to “Serious” ozone nonattainment status pursuant to the Clean Air Act’s National Ambient Air Quality Standards (NAAQS). This decision marks a shift in federal air policy — one that recognizes the unique challenges faced by regions like metro Phoenix, where environmental conditions beyond local control are often key contributors to air quality readings.

The EPA’s move follows a series of meetings between EPA Administrator Lee Zeldin, Arizona elected officials, and business and civic leaders, including a recent roundtable in Phoenix convened by U.S. Senator Mark Kelly. In announcing the pause, Zeldin acknowledged the need for flexibility and fairness in the application of Clean Air Act standards, especially when emissions from other states, nations, and natural events significantly influence local air quality.

Reprinted courtesy of Patrick J. Paul, Snell & Wilmer, John Habib, Snell & Wilmer and Sukhmani K. Singh, Snell & Wilmer

Mr. Paul may be contacted at ppaul@swlaw.com
Mr. Habib may be contacted at jhabib@swlaw.com
Ms. Singh may be contacted at ssingh@swlaw.com

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Louisiana state capitol park

This article examines the anticipated impact of the tort reform legislation on personal injury trials in federal and state courts in Louisiana.

Louisiana Enacts Important Tort Reform Legislation

May 12, 2026 — Lee M. Peacocke & Benjamin Perkins - Lewis Brisbois

The Louisiana legislature enacted tort reform legislation in 2025 to address the increasing cost of insurance in Louisiana and to provide some predictability to the Louisiana legal system. While our colleagues, Jenny Michel and Jennifer Kretschmann, have provided an excellent and comprehensive analysis of the legislation in their article entitled “Louisiana State Legislature 2025 Regular Session: Tort Reform - Acts & Vetoed Insurance Bill,” which can be found here, this article examines the anticipated impact of the tort reform legislation on personal injury trials in federal and state courts in Louisiana.

The most significant reform involves the institution of a modified defense of contributory negligence, which went into effect on January 1, 2026. Since 1996, Louisiana had operated as a pure comparative fault state; the liability of each party whose fault caused damages was to be allocated among the respective parties based upon their appropriate percentage of fault, regardless of the legal theory of liability asserted against each party. Thus, a plaintiff 55 percent at fault could recover 45 percent of their damages from the liable defendants. The 2025 Tort Reform Amendments now prohibit a plaintiff in a personal injury action from recovering any damages if they are found to be 51 percent or more at fault for their damages. The 55 percent at-fault party in the example above is now prohibited from recovering any damages from any party. Importantly, this new legislation now requires the trial court to instruct the jury that if they find a plaintiff to be more than 50 percent at fault, then the plaintiff will not recover any damages.

Reprinted courtesy of Lee M. Peacocke, Lewis Brisbois and Benjamin Perkins, Lewis Brisbois

Mr. Peacocke may be contacted at Lee.Peacocke@lewisbrisbois.com
Mr. Perkins may be contacted at Benjamin.Perkins@lewisbrisbois.com

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Finger pressing technology button

Three weeks, three jurisdictions, three cyber wins.

White and Williams LLP Secures Trio of Cyber Coverage Wins

May 12, 2026 — Gabriel Darwick & Sean Elman - White and Williams LLP

Three weeks, three jurisdictions, three cyber wins.

White and Williams picked up the first victory on March 9, 2026, in the United States District Court for the Western District of Texas, where the court granted summary judgment to their client enforcing a Cyber Crime Loss sublimit. See Perry & Perry Builders, Inc. v. Cowbell Cyber and Obsidian Specialty Ins. Co., 2026 U.S. Dist. LEXIS 49409 (E.D. Tex. Mar. 9, 2026). In Perry, the insured was deceived into transferring money intended for a vendor to an unintended third party. The insurer acknowledged that the loss was covered and paid the insured the policy’s Cyber Crime Loss sublimit. Discontent with a single sublimit, the insured argued that because it wired the money to the fraudster in separate transfers, it was entitled to a second Cyber Crime Loss sublimit.

Reprinted courtesy of Gabriel Darwick, White and Williams LLP and Sean Elman, White and Williams LLP

Mr. Darwick may be contacted at darwickg@whiteandwilliams.com
Mr. Elman may be contacted at elmans@whiteandwilliams.com

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Blurred highway and bridge intersection

RBP compresses what is often a multiyear market and regulatory conversation into a fast-moving set of commercial choices.

PJM’s Reliability Backstop Procurement Proposal—Fast-Track Capacity to Meet Rising Large-Load Demand

May 12, 2026 — Stephen J. Humes, Alicia M. McKnight, Jason Drogin Atwood & Andrew H. Jacobs - Gravel2Gavel

In January, we discussed the Statement of Principles jointly signed by the National Energy Dominance Council and governors across the mid-Atlantic region—framing accelerating demand (especially from large-scale data centers) as an emergency reliability issue for PJM Interconnection, L.L.C. (PJM), the nation’s largest power grid operator. That policy signal is now becoming a near-term, accelerated procurement and contracting exercise. On April 8, 2026, PJM notified stakeholders of a critical issue fast path reliability backstop procurement process. PJM subsequently released a request for information (RFI) with respect to a proposed Reliability Backstop Procurement (RBP)—a one-time mechanism intended to attract significant new capacity to address projected reliability shortfalls driven by large-load growth.

RBP compresses what is often a multiyear market and regulatory conversation into a fast-moving set of commercial choices. Developers, large loads, utilities and capital providers should be preparing now for (i) an accelerated bilateral contracting window and (ii) a standardized PJM-led backstop procurement if bilateral deals do not clear enough capacity.

Reprinted courtesy of Stephen J. Humes, Pillsbury, Alicia M. McKnight, Pillsbury, Jason Drogin Atwood, Pillsbury and Andrew H. Jacobs, Pillsbury

Mr. Humes may be contacted at stephen.humes@pillsburylaw.com
Ms. McKnight may be contacted at alicia.mcknight@pillsburylaw.com
Mr. Atwood may be contacted at jason.atwood@pillsburylaw.com
Mr. Jacobs may be contacted at andrew.jacobs@pillsburylaw.com

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Pen resting on notebook

Neogi provides practical insight into how courts are responding and what this means for defense counsel navigating increasingly complex and plaintiff-friendly environments.

Ayushi Neogi Published in ADC Defense Comment on Arbitration in Evolving Plaintiff-Friendly Landscape

May 12, 2026 — Gordon Rees Scully Mansukhani

Gordon Rees Scully Mansukhani Senior Counsel Ayushi Neogi has authored an article in the Association of Defense Counsel of Northern California and Nevada’s Defense Comment magazine examining the shifting landscape of arbitration following the Ending Forced Arbitration Act.

Titled “Compelling Arbitration in a Post-Ending Forced Arbitration Act, Plaintiff-Friendly Landscape,” the article analyzes how recent legislative changes are reshaping arbitration strategy, particularly as employees gain greater ability to bypass arbitration in certain claims. Neogi provides practical insight into how courts are responding and what this means for defense counsel navigating increasingly complex and plaintiff-friendly environments.

Reprinted courtesy of Gordon Rees Scully Mansukhani

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Person pointing to something on computer to other person

A new book, Inbetweeners, brilliantly explores the gap between the people who build technology and the people who are supposed to use it.

Lost in Translation: AEC Tech’s Missing Role

May 12, 2026 — Aarni Heiskanen - AEC Business

I once visited a construction site where the contractor’s headquarters had commissioned a tech company to build an on-site quality-inspection application. The developer had admitted to the site engineer that they had never set foot on a construction site before. The engineer showed me what he was actually using: his own phone camera and an Excel sheet. The new app did not map to how work actually happened on site.

This is not an isolated story. The vendor builds something technically coherent but operationally disconnected. The client, somewhere up the chain, had fallen in love with the idea of the solution before anyone had built an honest business case for it.

The result is a tool that gets demonstrated at a board meeting but isn’t used in the field.

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

Reprinted courtesy of Aarni Heiskanen, AEC Business

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Steel rolls factory

After dramatic spikes during the pandemic-era supply disruptions, the market has gradually stabilized as supply chains improve and demand softens in some construction segments.

Steel Cooling: Steel Costs Steadily Decline After Pandemic Price Shock

May 12, 2026 — Construction Executive

Steel prices have continued trending downward after several years of volatility, according to Gordian’s latest analysis based on RSMeans Data. After dramatic spikes during the pandemic-era supply disruptions, the market has gradually stabilized as supply chains improve and demand softens in some construction segments. However, selective volatility and tariff uncertainty continue to influence pricing across the sector.

Key findings from the report include:

  • Steel prices declining: The national average price of structural steel fell to about $2,343.93 per ton in January 2026, down 5.38% from the previous quarter and 7.18% year over year.
  • Longer-term price correction: Steel costs have been trending downward since 2024 after earlier volatility driven by inflation, supply shortages and global demand swings.

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

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Marietta Georgia Square

Toll Brothers Announces Final Luxury Home for Sale at Freestone Station in Marietta, Georgia

May 11, 2026 — Toll Brothers, Inc.

MARIETTA, Ga., April 17, 2026 (GLOBE NEWSWIRE) -- Toll Brothers, Inc. (NYSE:TOL), the nation's leading builder of luxury homes, today announced the final opportunity to purchase a new home at Freestone Station, a serene, luxury home community in Marietta, Georgia. Only one quick move-in home remains available for sale in this sought-after community.

The final home for sale, located on Home Site 17, features the Hillside Farmhouse home design with 5 bedrooms, 4 baths, and 3,392 square feet of living space. Scheduled for completion in May 2026, this residence combines elegant architecture with modern finishes to create a truly exceptional living experience. Home shoppers can enjoy the convenience of moving into a brand-new Toll Brothers home without waiting. The home is priced at $824,000.

Reprinted courtesy of Toll Brothers, Inc.

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Smiling construction worker

Construction Backlog Indicator Rebounds in February, Contractor Confidence Grows

May 11, 2026 — ABC - Construction Executive

WASHINGTON, March 10—Associated Builders and Contractors reported that its Construction Backlog Indicator rose to 8.1 months in February, according to an ABC member survey conducted Feb. 20 to March 6. The reading is up 0.1 months from January but down 0.2 months from February 2025.

View ABC’s Construction Backlog Indicator and Construction Confidence Index for February. View the full Construction Backlog Indicator and Construction Confidence Index data series.

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

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Checklist

Prove It: What Surety Underwriters Seek in Contractors

May 11, 2026 — Scott Berman - Construction Executive

Seeking surety bonding is no walk in the park. In today’s shifting environment, contractors face evolving requirements, changing project types and sizes, rising costs and new underwriting expectations. Contractors pursuing surety support may encounter tighter scrutiny as they grow. At the same time, underwriters are looking for organizations, practices, track records and leadership teams that check—and will continue to check—a number of critical boxes.

A range of surety underwriters recently weighed in on what they are seeking in contractors as the industry moves into its next phase.

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

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Seminar

CLM Construction Conference

May 11, 2026 — Beverley BevenFlorez - CDJ Staff

The Claims and Litigation Management Alliance (CLM) will hold their annual Construction Conference this September in Dallas. Registration for this three-day event begins on May 19th. The conference includes numerous networking opportunities and sessions.

September 23rd-25th, 2026
Hilton Anatole
2201 Stemmons Freeway
Dallas, TX 75207

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