CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - WEDNESDAY, OCTOBER 28, 2026

Red airplane going on own path

These cases illustrate several important distinctions under Colorado insurance law, distinctions that can determine whether a co-insurer’s claim survives a motion to dismiss.

Same Insurers, Different Results: Another Chapter in Acuity v. Kinsale and the Limits of Co-Carrier Recovery Under Colorado Law

October 27, 2026
David McLain - Colorado Construction Litigation Blog

When multiple insurers potentially owe coverage for the same construction defect claim, can one insurer force another to participate in the defense or indemnification of their common insured? If the other insurer refuses, what remedies are available?

As is often the case in insurance coverage litigation, the answer depends on precisely what claim is being asserted, whose rights are being enforced, and when the claim is brought.

In our earlier article, Acuity v. Kinsale Insurance Company: Co-Carrier Obligations and Subrogation under Colorado Law, we examined the United States District Court for the District of Colorado’s decision in Acuity v. Kinsale Insurance Company, 750 F. Supp. 3d 1229 (D. Colo. 2024). That decision addressed the circumstances under which an insurer that funded a construction defect settlement could pursue another insurer for equitable contribution, contractual subrogation, and alleged bad-faith conduct.

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

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

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CDJ NEWS THIS WEEK



Mechanic's lien

General contractors, subcontractors, suppliers, owners, and lenders all need to understand these changes.

Colorado’s New Mechanics’ Lien Protections: What S.B. 26-074 Means for Your Next Project

October 27, 2026 — Maria Conversa - Snell & Wilmer

Starting August 12, 2026, Colorado’s mechanics’ lien statute underwent its most significant update in years. Colorado’s General Assembly enacted Senate Bill 26-074 on April 6, 2026, and the new law directly addressed a problem that has plagued contractors and subcontractors for decades. For years, a contractor and subcontractor who filed a lien for the full amount it believed was due — particularly when that amount included disputed costs, delay damages, or lost productivity — risked triggering the “excessive lien” penalty. That penalty could force the claimant to forfeit its lien rights entirely and pay the other side’s attorney fees. The new law expands the categories of costs to be claimed by good-faith lien claimants, while still protecting against truly abusive filings. General contractors, subcontractors, suppliers, owners, and lenders all need to understand these changes.

What the Bill Changed
1. Lien Value May Include Disputed Amounts
The bill amends the core lien statute to insert the phrase “whether disputed or undisputed” into the description of lienable value. Prior law referenced only “the value” of labor, services, or materials furnished. The new text confirms that a lien can attach for amounts the parties still dispute. A claimant no longer needs the owner or general contractor to agree on the amount before filing.

Ms. Conversa may be contacted at mconversa@swlaw.com

Reprinted courtesy of Maria Conversa, Snell & Wilmer

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Contract checks

A key person provision is a widely underused tool in the world of construction contracts.

Key Person Provisions in Construction Contracts: Because People, Not Companies, Build Projects

October 27, 2026 — Nate Simon - Construction Executive

In construction, the person running your job matters: the project manager who sat in your preconstruction meetings, who understands the phasing, who knows why the MEP coordination sequence was set up the way it was, who has relationships with your team and the owner’s team. That person is not interchangeable. And if they disappear six weeks into the job and get replaced by someone who’s never read the drawings, you have a problem.

This happens all the time. A contractor or consultant sells the A-team—the experienced project manager; the sharp superintendent; the people who won the job—during the proposal and interview. Then, once the contract is signed, those people quietly get moved to a larger project, not out of anything nefarious, but usually out of a necessity. A fire happens on another project and they are needed to put it out. By the time you realize those working on your project aren’t the ones you originally signed on, you’re three months in and the damage is already underway.

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

Mr. Simon may be contacted at nate@simonlawky.com

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Insurance Policy

The insureds’ home burned down on the same day their homeowner’s policy expired.

Insured is Third Party Beneficiary of Forced-Place Policy

October 26, 2026 — Tred R. Eyerly - Insurance Law Hawaii

The court denied the insurer’s motion to dismiss the insured’s fire damage claims under a forced-place policy because the insured was a third-party beneficiary of the policy. Fredericks v. Assurant Specialty, et al., 2026 U.S. Dist. LEXIS 179779 (E.D. Pa. Aug. 12, 2026).

The insureds’ home burned down on the same day their homeowner’s policy expired. The expiration automatically triggered a forced-placed policy issued by American Security Insurance Company (ASIC) to the insureds’ mortgage company, Rocket Mortgage Company, LLC.

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

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

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Illustration of interview

Elaine Y. Lee sat down with Third Thursday to discuss effective collaboration with in-house counsel, strategies for resolving construction disputes, and the factors that can help determine the best path forward.

In-House Insight at CSC

October 26, 2026 — Elaine Y. Lee - Peckar & Abramson, P.C.

Elaine Y. Lee, Partner in P&A’s Los Angeles office, sat down with Third Thursday to discuss effective collaboration with in-house counsel, strategies for resolving construction disputes, and the factors that can help determine the best path forward. This discussion previews her upcoming Construction Super Conference panel, “Same But Different: How In-House Legal Teams Vary in Approach, Role, and Decision-Making,” on December 2nd.

Ms. Lee may be contacted at elee@pecklaw.com

Reprinted courtesy of Elaine Y. Lee, Peckar & Abramson, P.C.

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Compliance

E-Verify compliance in the construction industry is not simply a matter of checking a box; it requires sustained procedural rigor, uniform application, and careful coordination across multi-tier contracting relationships.

Key Ways Construction Companies Can Stay in Compliance with E-Verify

October 26, 2026 — Stephen E. Irving - ConsensusDocs

The federal E-Verify program has become an increasingly central feature of employment verification in the construction industry. Once a voluntary tool used primarily by federal contractors, E-Verify is now mandated, either broadly or for specific project types, by a growing number of states, and its role continues to expand under federal enforcement policy. For construction companies, which depend heavily on large, mobile workforces, and layered subcontracting relationships, E-Verify compliance presents unique operational and legal challenges. This article identifies the key practices construction companies should adopt to maintain compliance, highlights common good-faith mistakes that nonetheless expose contractors to enforcement risk, and examines the broader implications of continued E-Verify expansion for the construction labor market.

Mr. Irving may be contacted at sirving@pecklaw.com

Reprinted courtesy of Stephen E. Irving, Peckar & Abramson, P.C.

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PFAs

The court found the challengers likely to succeed because New Mexico had not shown a reasonable fit between the label and its interests in protecting consumer health and the environment.

Federal Court Pauses New Mexico PFAS Labeling Rule, but Not Its Bans or Reporting Deadline

October 26, 2026 — Ashleigh K. Myers, Jillian Marullo & Claudia Vetesi - Gravel2Gavel Construction & Real Estate Law Blog

As we previously reported, New Mexico adopted novel product labeling requirements that would require manufacturers to display a PFAS flask symbol on covered products. Those requirements are now on hold. A coalition of industry associations led by the American Chemistry Council sued in federal court, arguing that the mandate unconstitutionally compels speech in violation of the First Amendment. On September 16, 2026, the U.S. District Court for the District of New Mexico preliminarily enjoined enforcement of the labeling rule while the case, American Chemistry Council v. Kenney, No. 1:26-cv-02130-MIS-SCY, proceeds. The court found the challengers likely to succeed because New Mexico had not shown a reasonable fit between the label and its interests in protecting consumer health and the environment.

A Broad Rule Built Around One Symbol
New Mexico enacted its PFAS Protection Act in April 2025, joining Maine and Minnesota as the third state to adopt broad reporting requirements and eventual sales restrictions for products containing intentionally added per- and polyfluoroalkyl substances (PFAS). The Act also authorized the Environmental Improvement Board to require PFAS labels on products. The Board’s implementing rule, which became effective July 1, 2026, specified the exact format of the label and how it had to appear.

Reprinted courtesy of Ashleigh K. Myers, Pillsbury, Jillian Marullo, Pillsbury and Claudia Vetesi, Pillsbury

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

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Miami

Aixala brings experience in construction and civil litigation, along with a perspective many litigators don't have: a view from the public side of development, gained researching land use and zoning matters for the City of Miami.

Ball Janik LLP Strengthens Miami Construction Defect Team with Litigator Nicolas Aixala

October 26, 2026 — Ball Janik LLP

MIAMI, FL, October 22, 2026 — Ball Janik LLP has added Nicolas Aixala to its Construction Defect Practice Group as an associate in the firm's Miami office. Aixala brings experience in construction and civil litigation, along with a perspective many litigators don't have: a view from the public side of development, gained researching land use and zoning matters for the City of Miami.

"Construction disputes in South Florida rarely stay inside the four walls of a building. Zoning, permitting, and local regulation are often part of the story," said James C. Prichard, Managing Partner of Ball Janik LLP. "Nicolas has seen that landscape from the city's side of the table, and he pairs it with solid litigation training. That combination helps us quickly size up the development and regulatory issues our clients face. We're glad to have him on our Miami team."

Before joining Ball Janik, Aixala clerked at Miami-area law firms, supporting attorneys in construction litigation and a range of civil matters through legal research, motion practice, discovery, deposition preparation, and trial preparation. He also interned with the City of Miami, assisting with legal research and opinions on land use and zoning matters, including the City of Miami Zoning Code, known as Miami 21. That work gave him a close look at how local policy shapes development, and how it affects the neighborhoods and property owners who live with the results.

"A building is one of the biggest investments a property owner will ever make, and when construction goes wrong, they need advocates who understand both the courtroom and the local landscape," said Aixala. "Ball Janik handles complex construction litigation with a practical, client-focused approach. I'm excited to bring my litigation experience and local knowledge to this team and to the property owners it serves across South Florida."

Aixala earned his J.D. from the University of Miami School of Law, where he was a member of the Yvette Ostolaza Mock Trial Team and the Cuban American Bar Association. He received his B.S. in Business Administration from the University of Central Florida, with a minor in Legal Studies and a certificate in Entrepreneurship.

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.

Data Center interior

Federal order still limits site-plan action on nine-building campus with $25 million in infrastructure work.

Ohio Supreme Court Blocks Ballot Measure Targeting $4B AWS Data Center

October 26, 2026 — Bryan Gottlieb - Engineering News-Record

Ohio's High Court on Sept. 18 blocked a ballot measure that could have imposed new operating restrictions and citizen lawsuits on a planned $4-billion Amazon Web Services data center campus in Wilmington, about 35 miles southeast of Dayton.

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

Reprinted courtesy of Bryan Gottlieb, Engineering News-Record

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Appeals Bond

One of the most frequent questions asked when a client is considering taking an appeal from an adverse judgment or order is whether that judgment or order is stayed pending appeal.

Unable To Afford an Appellate Bond? You May Be “Indigent” And Qualify for a Discretionary Waiver or Reduction of the Bond Amount.

October 26, 2026 — Suzanne M. Nicholson - Wilke Fleury

One of the most frequent questions asked when a client is considering taking an appeal from an adverse judgment or order is whether that judgment or order is stayed pending appeal. The answer, not surprisingly, is “it depends.” While the general rule is that perfecting an appeal stays proceedings in the trial court, including enforcement of the judgment or order, there are many, many, exceptions to that rule.

One such exception is a judgment or order for “money or the payment of money.” (CCP § 917.1) In such cases, a bond or undertaking is typically required to stay enforcement. The costs of such security can be significant. If you are using an admitted surety insurer, the amount of security required is 1 1/2 times the amount of the judgment. Obtaining a bond through an admitted surety will require that you have sufficient collateral to secure the bond, and sufficient funds to pay the associated premiums, which generally run between 1% and 3% of the total bond amount, per year. So, if you are appealing from a $1 million judgment, you will likely need $1.5 million in assets as collateral, and up to $30,000 per year for the premium.

Ms. Nicholson may be contacted at snicholson@wilkefleury.com

Reprinted courtesy of Suzanne M. Nicholson, Wilke Fleury

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Stars on a platter

Congratulations to Hunton insurance coverage associate Jae Lynn (JL) Huckaba for being selected to the Miami-Dade Bar’s 2026 Circle of Excellence for Insurance Law.

Hunton’s Jae Lynn Huckaba Selected to Miami-Dade Bar’s 2026 Circle of Excellence for Insurance Law

October 26, 2026 — Hunton Insurance Recovery Blog

Congratulations to Hunton insurance coverage associate Jae Lynn (JL) Huckaba for being selected to the Miami-Dade Bar’s 2026 Circle of Excellence for Insurance Law.

Now in its fifth year, the Miami-Dade Bar’s Circle of Excellence Awards recognize attorneys who exemplify the highest standards of skill, integrity, and professionalism across the county. Honorees are chosen by a panel of past Circle of Excellence recipients following a rigorous two-month review that incorporates input from the public, Bar members, and committee leadership.

Reprinted courtesy of Hunton Andrews Kurth LLP

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Requirement in dictionary

The Act shifts a significant portion of construction scheduling risk onto employers.

New York Construction Employers Face New Reporting and Cancellation Pay Requirements Beginning December 8, 2026

October 26, 2026 — Bradley J. Bartolomeo & Clare M. Cunningham - Lewis Brisbois

Effective December 8, 2026, pursuant to the New York Construction Reporting Pay Act, employers in the New York State construction industry will be subjected to new reporting requirements and will be required to pay both union and non-union workers for certain last-minute schedule changes, even when the disruption is caused by weather, failed inspections, material shortages, site-access restrictions, or delays attributable to owners, general contractors, or other trades.

For many contractors, routine decisions that have historically been considered part of construction scheduling risk may now create mandatory wage obligations, prevailing wage compliance concerns, and potential wage-and-hour litigation exposure.

Reprinted courtesy of Bradley J. Bartolomeo, Lewis Brisbois and Clare M. Cunningham, Lewis Brisbois

Mr. Bartolomeo may be contacted at Bradley.Bartolomeo@lewisbrisbois.com
Ms. Cunningham may be contacted at Clare.Cunningham@lewisbrisbois.com

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Stone

Can the most ancient of building materials compete with concrete and steel to build more climate-friendly skyscrapers?

The Architects Who Dream of a New Stone Age

October 26, 2026 — Jennifer Hahn – Bloomberg

Most of the world’s longest-standing buildings have one thing in common: They are made from stone. Still, you’d be hard-pressed to find this civilization-outlasting material as a structural element in modern construction. Many stone buildings are imposters: thin veneers of limestone or granite disguising concrete and steel skeletons.

In its day job as Earth’s crust, stone is currently holding up entire cities, countries and continents. But it’s rarely used to its full potential as a load-bearing material that can be stronger than concrete.

Reprinted courtesy of Jennifer Hahn, Bloomberg

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Coins stacked up next to house

Brightshore Capital Launches $250 Million Property Platform

October 26, 2026 — Janine Panzer – Bloomberg

Global real estate firm Brightshore Capital, formerly known as GTIS Partners, has launched its first real estate debt investment platform with initial capital of $250 million at a time when homebuilders’ financing needs are mounting.

Reprinted courtesy of Janine Panzer, Bloomberg

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Data Center Under Construction

Construction Futures: August 2026 Economic Roundup

October 26, 2026 — Construction Executive

What We Learned in August: Construction Industry Lacks Broad-Based Momentum
The construction industry posted another month of lackluster growth. While nonresidential spending increased modestly and contractors continued to add jobs, momentum is highly concentrated in the data center category.

Nonresidential Construction Lacks Momentum Beyond Data Centers
Nonresidential construction spending inched higher in June but is still down more than 2% on a year-over-year basis. Momentum remains highly concentrated in the data center segment, and the private side of the segment is particularly weak. Excluding data centers, private nonresidential spending is down nearly 8.0% over the past year. While the power category, which has benefited from the boom in data center construction, remains strong, most nonresidential segments are struggling in the face of high borrowing and material costs.

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

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Arrow pointed at Insurance

Insured May Seek Declaratory Relief Against Excess Carriers Even if Underlying Policies Not Exhausted

October 26, 2026 — Tred R. Eyerly - Insurance Law Hawaii

The California Supreme Court concluded that the insureds could state a cause of action for declaratory relief regarding coverage under an excess policy even though all of the underlying policies had not yet been exhausted. Fox Paine & Co., LLC v. Twin City Fire Ins. Co., 2026 Cal. LEXIS 3942 (Cal. July 27, 2026).

The insureds filed a complaint for a declaratory judgment and bad faith against its excess carriers. The insureds alleged the excess carriers acted in bad faith by issuing proceeds to parties who were not insureds and not properly communicating with the insureds.

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

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

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Women at seminar

CLM’s Women Summit, Focus Conference & Holiday Party

October 26, 2026 — Beverley BevenFlorez – CDJ Staff

CLM presents a Women’s Summit on December 2nd and a Focus Conference and Holiday Party on December 3rd. The Women’s Summit will include three hands-on sessions: The Role of Emotional Intelligence in Business, Delegation and Elevation, and Leading Innovation and Fostering Creativity. The event will also include time between sessions to interact with peers and a Networking Reception. The following day’s Focus Conference provides flexibility to attendees. They can choose to follow one track or mix from the following topics: Alternative Dispute Resolution, Claims & Litigation Management, Extra-Contractual Issues, Insurance Coverage, and Insurance Fraud. The event ends with a holiday reception.

December 2nd-3rd, 2026
Chicago Marriott Downtown Magnificent Mile
540 North Michigan Avenue
Chicago, Illinois 60611

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Catastrophic Floods Force Evacuations Across the West

Catastrophic flooding across the Four Corner region brought devastation after heavy rains pummeled the area for days. NBC News’ Dana Griffin reports.

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Record High Tides Possible in Southern California Through Thursday

Officials say reinforcements are holding up, with no major issues so far. Tracey Leong reports for the NBC4 News on Sunday, Oct. 25, 2026.

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