CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - WEDNESDAY, SEPTEMBER 9, 2026

Meeting with business man looking pensive

If a responsible builder is ready, willing, and able to make an appropriate repair, is the community better served by getting the building fixed, or by pursuing years of litigation in hopes of recovering enough money to pay someone else to fix it later?

The Goal Is the Repair, Not the Lawsuit: What Colorado HOA Boards Should Consider Before Suing a Builder

September 8, 2026
Gail Gudder - Colorado Construction Litigation Blog

Fourteen years ago, we cautioned Colorado homeowners associations against a “ready, fire, aim” approach to construction-defect litigation. In The Hidden Dangers of Construction Defect Litigation, we suggested a fairly simple proposition: when legitimate construction defects exist, the goal should be to get them repaired. Litigation should be a last resort, not an end in itself.

Much has changed in Colorado construction-defect law since then. But a recent Douglas County case, and significant amendments to the Colorado Common Interest Ownership Act (“CCIOA”) enacted in 2025, provide good reasons for HOA board members and owners to revisit that basic premise.

Ms. Gudder may be contacted at gudder@hhmrlaw.com

Reprinted courtesy of Gail Gudder, Higgins, Hopkins, McLain & Roswell, LLC

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CDJ NEWS THIS WEEK

Collateral

A bonded contractor was terminated for default on a construction project.

Surety Requiring Collateral Security Under General Agreement of Indemnity

September 8, 2026 — David Adelstein - Florida Construction Legal Updates

In order to procure bonds (payment and performance bonds), you need to sign a General Agreement of Indemnity (referred to as the “GAI”) with the surety (bonding company). It does not matter the surety issuing the bonds, the terms and conditions in the General Agreement of Indemnity are largely consistent. These terms and conditions are one-sided written in favor of the surety. This is because bonds are not insurance. When a surety issues such bonds, it is doing so under the premise that it will get reimbursed every penny that it incurs relative to its exposure- whether incurred in attorney’s fees, consulting costs, or remediating a default or claim under the applicable bond. The General Agreement of Indemnity is one of the most powerful contracts in construction and is a contract that is not to be taken lightly. It provides the surety numerous rights in the event of a claim.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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Podcast microphone and headphones

Kahana Feld Construction Defect Practice Group Chair Ivette Kincaid and attorney Thomas McCarrick recently joined the Construction Defect Litigation podcast.

The Construction Defect Litigation Podcast: Navigating Multi-Party Construction Defect Litigation

September 8, 2026 — Ivette Kincaid & Thomas McCarrick - Kahana Feld

Kahana Feld Construction Defect Practice Group Chair Ivette Kincaid and attorney Thomas McCarrick recently joined the Construction Defect Litigation podcast to discuss the challenges—and strategies—behind complex construction defect matters involving multiple stakeholders.

Drawing on their experience, Ivette and Thomas explore practical approaches to:

  • Identifying key parties and understanding how claims and crossclaims develop
  • Working with experts to evaluate defects, causation and damages
  • Managing procedural challenges, including scheduling, document management and depositions
  • Applying thoughtful case management strategies to position complex matters for successful resolution

Reprinted courtesy of Ivette Kincaid, Kahana Feld and Thomas McCarrick, Kahana Feld

Ms. Kincaid may be contacted at ikincaid@kahanafeld.com
Mr. McCarrick may be contacted at tmccarrick@kahanafeld.com

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Worker in warehouse full of supplies

Most programs are tested against the supply chain as it existed at contract award—not against the mid-project substitution scenarios where exposure actually arises.

Supply Chain Is a Legal Exposure—Not Just a Force Majeure Problem

September 8, 2026 — Owen Newman - Construction Executive

This is not another force majeure article. The supply-chain related legal exposure that contractors are carrying today—in sanctions risk, specification non-compliance, warranty exposure and regulatory volatility—extends well beyond what even a well-drafted force majeure clause protects.

An engineering, procurement and construction contractor on a gas-fired power plant discovers during commissioning that transformer oil in a critical unit contains Russian-origin naphthenic base oil, which is a prohibited source under Office of Foreign Assets Control sanctions. The contractor didn’t source it. A subsupplier two tiers below made the substitution when disruptions in the Strait of Hormuz tightened the primary supply chain for this specialty product and no one in the purchase-order chain flagged it. The procurement decision is long done and the documentation trail that should have caught it doesn’t exist.

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

Mr. Newman may be contacted at oknewman@duanemorris.com

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Construction of theater interior

A spokesman for Another Planet Entertainment, which paid the cost of the renovation, claimed his client had previously sought arbitration for the contractor's "deficient and defective work" on the former movie palace.

Dispute Erupts Into Public Over Castro Theater Rehab Project Costs

September 8, 2026 — Richard Korman - Engineering News-Record

As it was about to start an arbitration of final payments on a complex theater renovation, the entertainment company that leases San Francisco's landmark Castro Theatre has filed a state court trademark violation lawsuit seeking to bar the contractor from publicizing as a success its work for the owner on that and other projects.

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

Reprinted courtesy of Richard Korman, Engineering News-Record

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Uneven sidewalk

Blossom Miller sued 57th Avenue and 21st Century in state court alleging that she was injured when she tripped on the sidewalk in front of the leased premises.

Landlord Determined to Not Qualify as Additional Insured

September 8, 2026 — Tred R. Eyerly - Insurance Law Hawaii

In a dispute between two insurers, the Second Circuit affirmed the district court’s determination that the landlord was not an additional insured under the tenant’s policy. Peleus Ins. Co. v. Am. European Ins. Co., 2026 U.S. App. LEXIS 17981 June 22, 2026).

Blossom Miller sued 57th Avenue and 21st Century in state court alleging that she was injured when she tripped on the sidewalk in front of the leased premises (the “Miller Action”). The premises was leased by 57th Avenue to 21st Century.

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

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

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Good better best blocks

Nomos LLP partner Garret Murai has been recognized in the 2027 edition of The Best Lawyers in America®.

Nomos LLP Partner Garret Murai Recognized by Best Lawyers in America

September 8, 2026 — Garret D. Murai - California Construction Law Blog

Nomos LLP partner Garret Murai has been recognized in the 2027 edition of The Best Lawyers in America® in the area of Construction Law. Only about 5% of lawyers in the United States are recognized by Best Lawyers in America®.

Mr. Murai may be contacted at gmurai@nomosllp.com

Reprinted courtesy of Garret D. Murai, Nomos LLP

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News

In Pillsbury's latest roundup, U.S. Chamber of Commerce creates Housing Advisory Council, a legal battle develops over new federal rules related to mortgage escrow accounts, hospitality dealmakers pursue ‘bigger, higher-conviction’ M&A, and more.

Real Estate & Construction News Roundup (8/19/26) – Single-Family Housing Investors Worry, Confidence in Multifamily REITs and Construction Backlog Falls

September 8, 2026 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

In our latest roundup, U.S. Chamber of Commerce creates Housing Advisory Council, a legal battle develops over new federal rules related to mortgage escrow accounts, hospitality dealmakers pursue ‘bigger, higher-conviction’ M&A, and more!

  • In the wake of the 21st Century ROAD to Housing Act becoming law, the U.S. Chamber of Commerce has created a Housing Advisory Council with the goal of advancing market-driven policies that help increase housing supply and promote affordability. (Julie Strupp, Multifamily Dive)
  • Investors in the single-family housing market are increasingly concerned about interest rates, rising insurance and home costs, and the ongoing war with Iran. (Diana Olick, CNBC)
  • A legal battle is brewing over new federal rules related to accounts that hold money to pay homeowners’ property taxes and insurance payments. (Sarah Agostino, CNBC)

Reprinted courtesy of Pillsbury's Construction & Real Estate Law Team

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Business people in capes

Super Lawyers is a rating service recognizing outstanding attorneys across more than 70 practice areas who have achieved high peer recognition and professional accomplishment.

Congratulations to BWB&O’s 2027 Southern California Super Lawyers and Rising Stars Honorees!

September 8, 2026 — Bremer Whyte Brown & O'Meara, LLP

Bremer Whyte Brown & O’Meara, LLP is proud to announce that Partners Nicole Whyte, Keith Bremer, John Toohey, and Tyler Offenhauser have been named to the 2027 Southern California Super Lawyers list. Notably, Nicole Whyte was also selected to the Top 50 Orange County Super Lawyers list, an honor reflecting her outstanding work, leadership, and impact in the legal community.

Associates Kevin Moore, Sukayna Jaidi, and Andrew Mathews are also being recognized as 2027 Southern California Super Lawyers Rising Stars.

Our team is being honored for their distinguished service and dedication in Family Law, Civil, Business, Construction, and Personal Injury Litigation.

Reprinted courtesy of Bremer Whyte Brown & O'Meara, LLP

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Data center

The Executive Order creates an actionable compliance framework letting developers demonstrate stewardship across water, air quality, energy, wildlife, and community engagement – reducing regulatory and reputational risk.

Utah’s Emerging Framework for Responsible Data Center Development

September 8, 2026 — Denise A. Dragoo & Josh Miller - Snell & Wilmer

Utah is establishing itself as one of the nation’s most attractive jurisdictions for large-scale data center development, with a structured, defensible regulatory pathway that gives developers and investors the clarity needed to deploy capital at scale. The cornerstone is Executive Order 2026-03, “Establishing a Higher Bar for Data Center Development in Utah,” signed by Governor Spencer J. Cox on May 29, 2026.

The Executive Order creates an actionable compliance framework letting developers demonstrate stewardship across water, air quality, energy, wildlife, and community engagement – reducing regulatory and reputational risk. Recent enactments on energy self-supply and water rights operationalize these principles, while a few counties have adopted short-term local moratoria to update zoning; understanding how these interact with the state framework matters for site selection.

Reprinted courtesy of Denise A. Dragoo, Snell & Wilmer and Josh Miller, Snell & Wilmer

Ms. Dragoo may be contacted at ddragoo@swlaw.com
Mr. Miller may be contacted at jmiller@swlaw.com

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Good better best best circled

Best Lawyers has selected 207 Lewis Brisbois attorneys across 45 offices for its 33rd edition of The Best Lawyers in America.

Best Lawyers Honors Hundreds of Lewis Brisbois Attorneys, Names Five Partners 'Lawyers of the Year'

September 8, 2026 — Lewis Brisbois

Best Lawyers has selected 207 Lewis Brisbois attorneys across 45 offices for its 33rd edition of The Best Lawyers in America. It has also recognized five Lewis Brisbois partners on its "Lawyers of the Year" list: Akron Partner John R. Conley (Product Liability Litigation - Defendants); Akron Managing Partner David Kern (Corporate Law; Mergers and Acquisitions Law; Private Funds / Hedge Funds Law; Tax Law; Trusts and Estates); Weirton Managing Partner Michelle L. Gorman (Mass Tort Litigation / Class Actions - Defendants); Portland Partner Megan Cook (Personal Injury Litigation - Defendants); and San Diego Partner Craig T. Mann (Medical Malpractice Law - Defendants).

Please join us in congratulating the following attorneys on their Best Lawyers recognition! You can also see the full list of attorneys named to Best Lawyers' Ones to Watch in America here.

Reprinted courtesy of Lewis Brisbois

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Trophy

This honor reflects Andrea’s reputation as one of the country’s leading policyholder-side insurance recovery litigators and her standing as a trusted advisor to companies facing some of today’s most complex insurance and risk management challenges.

Benchmark Litigation Recognizes Andrea DeField Among Nation’s Top Young Litigators

September 8, 2026 — Hunton Insurance Recovery Blog

Hunton’s insurance coverage team is proud to celebrate the recognition of Andrea DeField on Benchmark Litigation’s 2026 40 & Under List, an annual ranking that highlights the nation’s leading litigators age 40 and under. Andrea was one of only six Hunton lawyers selected and was recognized in the South region. Benchmark Litigation’s 40 & Under List honors attorneys who have distinguished themselves through significant case work, client feedback, and peer review.

This honor reflects Andrea’s reputation as one of the country’s leading policyholder-side insurance recovery litigators and her standing as a trusted advisor to companies facing some of today’s most complex insurance and risk management challenges. As head of Hunton’s cyber insurance practice, Andrea has built her career helping companies manage risk and maximize insurance recovery. Her practice spans the full spectrum of insurance-related issues, from advising clients on contractual risk transfer and insurance program design to representing policyholders in high-stakes coverage and bad faith disputes. She has guided clients through some of the most complex and widely publicized losses in recent years and helps companies recover under a broad range of insurance products, including D&O, professional liability, crime, property, cyber, and general liability policies.

Reprinted courtesy of Hunton Andrews Kurth LLP

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Business people standing on pedestals

Traub Lieberman is pleased to announce that four Partners have been selected by their peers for inclusion in the 2027 edition of The Best Lawyers in America®.

Traub Lieberman Attorneys Recognized in the 2027 Edition of The Best Lawyers in America®

September 8, 2026 — Traub Lieberman

Traub Lieberman is pleased to announce that four Partners have been selected by their peers for inclusion in the 2027 edition of The Best Lawyers in America®. In addition, six attorneys have been included in the 2027 Best Lawyers®: Ones to Watch list. These recognitions include attorneys from the firm’s White Plains, NY; Chicago, IL; Palm Beach Gardens, FL; and St. Petersburg, FL offices.

2027 Best Lawyers®
White Plains, NY

  • Lisa L. Shrewsberry – Commercial Litigation

Chicago, IL

  • Brian C. Bassett – Insurance Law

Palm Beach Gardens, FL

  • Rina Clemens – Personal Injury Litigation – Defendants, Product Liability Litigation – Defendants

St. Petersburg, FL

  • Lauren S. Curtis – Insurance Law

Reprinted courtesy of Traub Lieberman

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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

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Upward arrow trend

US New Home Sales Rise for First Time in Three Months

September 8, 2026 — Michael Sasso – Bloomberg

New-home sales in the US climbed in June for the first time in three months as heavy builder discounting helped offset high mortgage rates and subdued consumer sentiment.

Reprinted courtesy of Michael Sasso, Bloomberg

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Desk with construction hard hat and budget docs

Construction Costs Should Stabilize for 2026 Despite Persistent Global Pressures

September 8, 2026 — Greg O'Bryan - Construction Executive

Nonresidential construction cost escalation trended toward normal levels in 2025, easing industry anxiety over U.S. emergency tariffs that had driven building costs significantly higher.

According to data published in the Beck Group’s latest construction cost report, nonresidential construction costs increased about 5% last year, which falls within the range of normal cost escalation. In 2026, construction cost inputs are expected to trend close to last year’s level, pending no major hiccups, such as a prolonged Middle East conflict.

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

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Firefighters fighting wildfire

European Wildfires Expose Mounting Pressure on Insurers as Climate Risks Intensify, Says GlobalData

September 8, 2026 — GlobalData

European insurers face mounting losses as severe wildfires sweep across France, Spain and Greece, exposing the narrow margins in high-risk property coverage. France's 2024 fire and hazard insurance data show how quickly claims can approach premiums, raising concerns over insurers' capacity to absorb escalating climate-related losses and maintain coverage in increasingly vulnerable regions, reveals GlobalData, a leading intelligence and productivity platform.

GlobalData's Global Insurance Database shows that natural fire and hazard premiums totaled $2.4 billion in France in 2024 with claims at $2.2 billion; a difference of just $218 million. This highlights how thin the margins can be in this high-risk line and illustrates how difficult 2026 will be for insurers.

The wildfires are still ongoing in France and could get considerably worse if they get even closer to cities such as Bordeaux, where they have already caused a great deal of disruption.

Ben Carey-Evans, Senior InsuranceAnalyst at GlobalData, explains: "It is yet more evidence that insurers around the world should be extremely concerned by climate change and the impact of severe weather events. A GlobalData poll on Verdict Media sites in May 2024 found that 25.0% of respondents believed severe weather events to be the greatest risk to the insurance industry, which placed it second behind cyber threat. While this is a couple of years old, severe weather events is only more of an issue now and it highlights how it has been a key concern for insurers over a long period of time."

Reportedly, wildfires in France are not covered by its state-backed compensation scheme (which only covers floods and droughts). Therefore, all the burden will fall on insurers.

Carey-Evans concludes: "The long-term risk here is that insurers pull away from personal and commercial policies in high-risk areas and large areas of land and population become uninsurable.

"This is one of the most-pressing issues in insurance, with more serious events becoming increasingly likely every year. Insurers and governments will need to work out how they can continue to insure increasingly large areas, with many communities and businesses at risk."

Webinar

ABA’s Pay Gaps and Their Impact in the Construction and Legal Industries Webinar

September 8, 2026 — Beverley BevenFlorez – CDJ Staff

This webinar presented by the American Bar Association (ABA) will cover the intricacies of pay equity in the construction and legal industries. It’s a 90-minute event relevant for construction attorneys and in-house counsel that manage labor and employment matters. Attendees will learn about the data-driven landscape of current pay gaps, the impact of pay gaps on the workforce, employers and communities, laws aimed at breaking the cycle, as well as strategies to navigate and narrow pay gaps.

September 16th, 2026
Virtual Event

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Malibu Driveway Collapses into Sinkhole Amid Coastal Erosion

A driveway outside a home in Malibu collapsed into a sinkhole Tuesday morning amid erosion along the bluff.

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Coyotes Cleared Out of Condo Construction Site in West Hollywood

It appears the coyotes are gone from the building but not from the neighborhood. Karma Dickerson reports for the NBC4 News at 4 p.m. on Monday, Sept. 7, 2026.

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