CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - WEDNESDAY, SEPTEMBER 17, 2025

Construction workers at site

This article discusses instances where parties’ actions during the life of a contract can influence a court’s future interpretation of the contract’s terms, or, in some cases, even waive a contract term.

When Actions (May) Speak Louder Than Words: Inadvertently Altering or Waiving Contract Terms Through Course of Performance

September 15, 2025
Jordan Heath - ConsensusDocs

This article discusses instances where parties’ actions during the life of a contract can influence a court’s future interpretation of the contract’s terms, or, in some cases, even waive a contract term. While this article doesn’t examine every situation where this might occur, it highlights two different situations that general contractors need to be aware of.

First, this article explains the idea of “course of performance.” If litigation arises and a contract provision is subject to multiple interpretations, then the parties’ actions during the life of the contract can be used to interpret the provision. This can lead to unexpected outcomes or different results for one (or both) of the parties to the dispute.

Mr. Heath may be contacted at jheath@joneswalker.com

Reprinted courtesy of Jordan Heath, Jones Walker

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CDJ NEWS THIS WEEK



Businessman looking between two question mark sheets

The court agreed with Travelers that Lloyd's had a duty to defend the underlying personal injury case.

Court Resolves Carriers' Dispute Over Which Must Defend

September 15, 2025 — Tred R. Eyerly - Insurance Law Hawaii

The court agreed with Travelers that Lloyd's had a duty to defend the underlying personal injury case. Travelers Indem. Co. v. Underwriters at Lloyd's, 2025 U.S. Dist. LEXIS 118445 (S.D. N. Y. June 23, 2025).

Jerome Avenue owned a multi-tenant property in the Bronx, New York. Jerome Avenue leased one of the units to Pawnit Jerome Corp. (Pawnit). Both Jerome Avenue and Pawnit were sued by Randolph Calosso, who alleged that he tripped and fell on the public sidewalk in front of the leased premises, sustaining serious injuries.

Travelers had issued a CGL policy to Jerome Avenue and provided a defense in the underlying case. The Travelers' policy included an "other insurance" provision, stating that coverage was "excess over any of the other insurance, whether primary excess, contingent or on any other basis, that is available to the insured when the insured is an additional insured . . ."

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

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

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String tied on finger

This case is a reminder that restrictive covenants will be enforced according to their plain and ordinary meaning, especially when supported by a general development plan.

Backpacks, Broadway, and Building Restrictions: A Legal Reminder

September 15, 2025 — Matthew DeVries - Best Practices Construction Law

A few weeks ago, I took two of my girls to New York City for a quick overnight trip to see two Broadway shows. My rule for packing was simple: one backpack each. No rolling bags, no extras. We were walking the city, checking into a hotel, and going straight to the shows. The plain meaning of my instructions were clear: one bag per person.

That’s exactly how the Tennessee Court of Appeals handled a recent case, Killen v. Boardman (Aug. 2025). A landowner tried to build a second house after subdividing her lot. But the subdivision restrictions, recorded in 1971, said: "Not more than one residence shall be erected on one tract."

The court enforced the restriction as written. One tract meant one residence. Splitting the lot didn’t erase the covenant or the developer’s plan for the subdivision.

What made the analysis significant was the court’s reliance on the general plan doctrine, which holds that that when developer sells land with restrictions designed to implement a general plan of development, he “impliedly represents to the purchasers that the rest of the land included in the plan is, or will be, similarly restricted.”

Mr. DeVries may be contacted at mdevries@buchalter.com

Reprinted courtesy of Matthew DeVries, Buchalter

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Pen lying on notebook

It is common for construction contracts to include a choice-of-law provision or language.

Quick Note: Choice of Law Provisions

September 15, 2025 — David Adelstein - Florida Construction Legal Updates

It is common for construction contracts to include a choice-of-law provision or language. This is language that says the contract is to governed under the laws of the state of Florida (by way of example). Pick any jurisdiction. There may be other language in the provision, but the gist is that if there is a dispute arising under the agreement, the laws of the state designated in the choice-of-law provision will apply.

For example, you can have an agreement in Florida with a vendor but that agreement includes a choice-of-law provision that says the state of Virginia applies. This is because the vendor may be based in Virginia and the agreement was based on Virginia law.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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Although some courts have been lenient, the use of AI without conducting a thorough review of all citations can expose a lawyer to significant risks.

Recent Sanctions Against a Plaintiff for Suspected Use of AI in Brief Writing a Stark Reminder of the Increasing Prevalence of AI

September 15, 2025 — Nicole Johnson - Kahana Feld

With new AI tools popping up every day, attorneys can no longer trust that opposing counsel’s citations and propositions of law are accurate, and courts are not happy about it. Since May of 2023, courts in the United States have issued 212 sanctions decisions regarding generative AI-produced hallucinations in legal filings. 169 of those decisions were rendered this year. While AI pleadings are commonly used by pro se litigants, nearly half of these infractions were committed by legal professionals, including attorneys, paralegals, and judges.

Although some courts have been lenient, the use of AI without conducting a thorough review of all citations can expose a lawyer to significant risks. For example, a recent order from the District of Arizona sanctioned an attorney for the suspected use of AI in drafting the plaintiff’s opening brief. The attorney in question is the owner of a national social security disability practice and appears pro hoc vice in courts across the country. In this case, the sanctioned counsel received a brief from a contract attorney, which she apparently signed and filed without checking any of the citations or propositions of law.

Ms. Johnson may be contacted at njohnson@kahanafeld.com

Reprinted courtesy of Nicole Johnson, Kahana Feld

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Gold star

Inclusion in the “Super Lawyers Rising Stars” list is a testament to their outstanding legal work and dedication to clients.

Meet BWB&O’s Mountain States Rising Stars!

September 15, 2025 — Dolores Montoya - Bremer Whyte Brown & O'Meara LLP

BWB&O is thrilled to announce that Las Vegas Partners Madeline Arcellana and Devin Gifford, as well as Associates Reema Hassanieh and Deleela Weinerman, have been selected to the 2025 Mountain States Rising Stars list for their work in Civil and Personal Injury Litigation.

Super Lawyers is a prestigious rating service that identifies outstanding lawyers across more than 70 practice areas who have received a high degree of peer recognition and professional achievement. Inclusion in the “Super Lawyers Rising Stars” list is a testament to their outstanding legal work and dedication to clients.

Reprinted courtesy of Bremer Whyte Brown & O'Meara LLP

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Licenses Label on File Folder

This post provides helpful information for taking the first step on the journey of verifying compliance in conducting an interstate construction business.

R-E-C-I-P-R-O-C-I-T-Y ~ Find Out What It Means to You (Updated August 2025)

September 15, 2025 — Robert A. James & Marc Coats - Gravel2Gavel Construction & Real Estate Law Blog

UPDATED August 2025: What a difference eight years make. This article was originally published in 2014 and was updated in 2017. We have again updated the links to the relevant agency resources.

The question frequently arises for participants in a nationwide construction contracting industry. Simply stated, is a licensed contractor in good standing in State A permitted to offer to contract for or to perform work requiring a contractor’s license in State B?

Roughly half the states have statutes or regulations on point. 6 Bruner & O’Connor Construction Law § 16:17. Some states have easy requirements, like Nebraska (contractors only need register), while others have no exceptions or onerous requirements, like Alaska (residential contractors must take a 16-hour cold climate course and pass an exam).

Reprinted courtesy of Robert A. James, Pillsbury and Marc Coats, Pillsbury

Mr. James may be contacted at rob.james@pillsburylaw.com
Mr. Coats may be contacted at marc.coats@pillsburylaw.com

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Stars next to Best Lawyers

This recognition highlights the firm's continued excellence in construction defect, litigation, and insurance law across its offices in Orlando, Miami, Ft. Lauderdale, Tampa and Sarasota.

Ball Janik LLP Attorneys Recognized in 2026 The Best Lawyers in America

September 15, 2025 — Ball Janik LLP

Orlando, FL – Ball Janik LLP proudly announces that several firm attorneys have been recognized in the 32nd 2026 edition of Best Lawyers® and Best Lawyers: Ones to Watch. This recognition highlights the firm's continued excellence in construction defect, litigation, and insurance law across its offices in Orlando, Miami, Ft. Lauderdale, Tampa and Sarasota. The award distinctions underscore the firm's continued commitment to excellence and strength in the legal industry while recognizing its ability to recruit attorneys of the highest caliber to serve a growing client base.

The following attorneys have been recognized in the Best Lawyers® Awards:

Miami, FL

  • Gabriel Z. Coelho - Construction Law
  • Franchesco Soto - Construction Law and Litigation - Construction

Orlando, FL

  • Kelly Corcoran - Construction Law
  • Phillip E. Joseph - Community Association Law, Litigation - Construction, Real Estate Law
  • James C. Prichard - Construction Law
  • Evan J. Small - Construction Law, Litigation - Construction

The following attorneys have been recognized in the 2026 Best Lawyers: Ones to Watch:

Miami, FL

  • Kayla Mosquera - Insurance Law
  • Elijah C. Waring, Jr. - Product Liability Litigation - Defendants

Orlando, FL

  • Keegan A. Berry - Litigation - Construction
  • Natasha L. Biela - Commercial Litigation
  • Greg K. Demers - Construction Law
  • Brett Roth - Construction Law
  • Jeffrey A. Widelitz - Insurance Law

Tampa, FL

  • Nicholas B. Vargo - Construction Law, Litigation - Construction

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 50-plus attorneys and paralegals in 5 offices in Florida, with centuries of combined experience and capabilities. The firm has been recognized by Chambers USA, U.S. News & World Report and Best Lawyers®, The Best Lawyers in America©, and Corporate International. Read more here: www.balljanik.com.   

Night power lines glowing

Developer said it would continue forward on the estimated $7-billion to $11-billion midwest transmission project by securing capital through other sources.

Feds Withdraw $4.9B Conditional Loan Guarantee for Grain Belt Express Power Line

September 15, 2025 — Bryan Gottlieb - Engineering News-Record

The U.S. Energy Dept. has withdrawn a $4.9-billion conditional loan guarantee for Invenergy’s Grain Belt Express transmission line, claiming financial shortcomings that officials determined were unlikely to be resolved.

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

Reprinted courtesy of Bryan Gottlieb, Engineering News-Record

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Woman climbing stairs watch your step sign

A Florida judge found that the condition of the sidewalk over which the plaintiff tripped was not dangerous as a matter of law.

Tampa Office Secures Summary Judgment for Property Owner Client in Trip-and-Fall Lawsuit

September 15, 2025 — Lewis Brisbois Newsroom

Tampa, Fla. (August 15, 2025) - Tampa Partner Nicholas Dareneau recently obtained summary judgment for a property owner client in a trip-and-fall lawsuit, with a Florida judge finding that the condition of the sidewalk over which the plaintiff tripped was not dangerous as a matter of law.

The incident in question occurred in December 2022, as the plaintiff was walking to the entrance of a retail store on the client's property. She stepped up onto the sidewalk, walked across pavers and then tripped on a section of concrete, suffering injuries. She proceeded to sue Lewis Brisbois’ property owner client and the store in the Circuit Court of the Sixth Judicial Circuit in and for Pinellas County. Ultimately, the plaintiff dropped the store owner from the lawsuit.

Reprinted courtesy of Lewis Brisbois

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With more than 25 years of legal experience, Cliff offers deep knowledge and insight, particularly in intellectual property and business litigation.

Cliff White Expands Insurance Litigation Team at Payne & Fears

September 15, 2025 — Payne & Fears LLP

Cliff White has joined Payne & Fears LLP as Counsel in the firm’s Insurance Litigation Group, with his extensive background expected to extend into the Business and Employment Groups as well. With more than 25 years of legal experience, Cliff offers deep knowledge and insight, particularly in intellectual property and business litigation.

Get to Know Cliff
What activities do you enjoy outside of work?
Cliff enjoys spending time with his wife and three children, taking them to the swimming pool and attending their many activities. When time permits, he enjoys skiing, surfing, camping, playing basketball and tennis.

Reprinted courtesy of Payne & Fears LLP

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Woman in shadow with arm raised in triumph

These finalists exemplify the talent, leadership, and collaborative spirit that define the firm’s commitment to advancing women in law.

GRSM Women Attorneys Named Finalists in Three Categories at 2025 Women, Influence & Power in Law Awards

September 15, 2025 — Gordon Rees Scully Mansukhani

Gordon Rees Scully Mansukhani is proud to announce that three of its attorneys have been named finalists for the 2025 Women, Influence & Power in Law (WIPL) Awards, presented by ALM’s Corporate Counsel magazine. These prestigious awards honor law firms and in-house women leaders who have demonstrated a commitment to advancing the empowerment of women in the legal profession. Winners in each category will be announced at an awards dinner on October 7, during the Women, Influence & Power in Law Conference in Washington, D.C.

In the Law Firm Collaborative Leadership category, New York Founding Partner Mercedes Colwin has been recognized for her remarkable litigation record, winning more than 90% of the trials and arbitrations she has conducted, along with her leadership within the firm and the legal community, as well as her dedication to mentorship.

Litigation Partner and National Employment Law Chair Debra Ellwood Meppen has been named a finalist for Law Firm Ally of the Year. In addition to leading the firm’s Women’s Initiative, Meppen is widely respected for her discretion and effectiveness in high-profile entertainment matters, earning the trust of Hollywood’s top producers, directors, and executives to resolve sensitive, high-stakes disputes.

Reprinted courtesy of Gordon Rees Scully Mansukhani

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Illustration of coins pulled from piggy bank by Magnet

Contractors may need to revisit some of the processes in their accounting and financial operations. Here are six strategies for construction companies to insulate against cost increases and mitigate financial risks.

Well-Insulated: Predict the Unpredictable Construction Costs

September 15, 2025 — Jill Masur - Construction Executive

It’s clear that, at least for the next year or more, the construction industry can expect unpredictable cost variations.

What can construction companies do to insulate against cost fluctuations? How can they mitigate risks related to supply-chain issues, labor shortages, and increased cost and decreased availability of materials and labor?

Here are six strategies construction contractors and subcontractors can adopt now to help minimize the impact of these economic uncertainties.

1. Consider price-escalation clauses or cost-plus contracts, both of which allow the contractor to pass increasing material and labor costs on to their customers.
Price-escalation clauses have typically been limited to cost increases for materials, but construction contractors can also use them to mitigate the risk of rising labor costs. This is an acute issue today, given the labor shortages and wage increases in the industry. Customers may try to negotiate out of price-escalation clauses, but the demand for their services means contractors have some leverage to push back against those demands–or contractors may need to be creative in negotiating price-escalation clauses.

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

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Home Builders Association of Greater Kansas City Launches New Campaign as the Cost of Housing Rises and Homeownership Slips Out of Reach for Young Families

September 15, 2025 — Home Builders Association of Greater Kansas City

Kansas City, MO, Aug. 18, 2025 (GLOBE NEWSWIRE) -- As the cost of housing rises and regulations continue to mount, the Home Builders Association of Greater Kansas City (KCHBA) has launched a regional public awareness campaign - "Let Builders Build."

The recently launched campaign spotlights how complicated processes and excessive requirements are pushing homeownership out of reach for many in the Kansas City area. These growing barriers to homeownership highlight the critical need for more attainable housing, particularly for young families.

Over the past 15 years, the rate of rising home prices has outpaced income levels in the Kansas City area by more than 50%. More than half of Kansas City residents can no longer afford a median-priced home ($412,500), leaving young families and first-time homebuyers priced out of the region and left to search further outside the Kansas City area.

As the Kansas City area welcomes a surge of new residents daily, housing inventory struggles to keep pace with the city's anticipated growth. Over the next decade, the region is projected to fall short of inventory by nearly 60,000 homes, making the need for single-family housing even more critical.

Learn more at https://letbuildersbuildkc.com/.

About the Home Builders Association of Greater Kansas City
The Home Builders Association of Greater Kansas City (KCHBA) is an association of industry professionals serving the communities and residents of the greater Kansas City metropolitan area by promoting housing opportunities. Comprising approximately 500 member companies, the KCHBA supports an industry that contributes more than $1.5 billion to the Kansas City economy and provides for more than 20,000 jobs. For more information, visit https://kchba.org/

Construction workers on site

The Travelers 2025 Injury Impact Report Reveals First-Year Workers Most at Risk

September 15, 2025 — Construction Executive

Travelers recently released its 2025 Injury Impact Report - an analysis of workers’ compensation claims - and its findings reveal some curious insights that might be useful for construction companies.

Construction Executive sat down with Claude Howard, VP and Workers Compensation Claim Lead; and Ken Wengert, VP, Risk Control-Construction, Energy & Marine from Travelers to break down this year’s data.

Can you talk about the Travelers 2025 Injury Impact Report and highlight some of its most significant findings concerning the construction industry?
Howard: Travelers is one of the largest workers’ compensation carriers in the United States, which means we have a large amount of claim data that can offer insights into workplace injuries. For the 2025 Injury Impact Report, we analyzed more than 2.6 million workers’ compensation claims that we received in the past decade, comparing the five years leading up to the pandemic (2015-2019) with the next five years (2020-2024). The goal was to identify any trends that could help employers better understand workplace risks so they can take steps to help prevent future injuries.

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

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Two people meeting over contract

Anti-Concurrent Causation Clause Defeats Coverage

September 15, 2025 — Tred R. Eyerly - Insurance Law Hawaii

The insured's claim for damage to the property's electrical equipment and power loss after a wind and rain storm was not covered due to the policy's anti-concurrent causation clause. Allah-Pak Properties, LLC v. Century Surety Co., No. 2:23-CV-00301, Order (S.D. Texas Aug. 8, 2025).

During a storm, water seeped into the insured's property's utility room, causing damage to electrical equipment and power loss. The insured notified its insurer, Century Surety Company. An engineer hired by Century inspected and found that water intruded the electrical equipment in the electrical room through roof mounted conduit fittings and associated roof penetrations. Further, the root cause for the water intrusion was improper maintenance practices. The inspector also determined that the roof damage resulted from a severe windstorm followed by a heavy rainstorm that caused water to enter through the roof and damage the electrical panels. The likely cause of the breaks in the seal was the wind causing the wires to swing, imposing lateral pressure onto the conduit pipes which broke the seal.

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

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

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Seminar

Construction Super Conference 2025

September 15, 2025 — Beverley BevenFlorez – CDJ Staff

The 39th annual Construction Super Conference is relevant “for mid- to senior-level professionals who work in the legal and commercial construction markets.” The event is comprised of educational sessions and panel discussions that “address timely issues within the legal, business, and economic realms of today’s construction industry.” The three-day conference also includes networking opportunities.

December 9th-11th, 2025
Hyatt Regency Coconut Point
5001 Coconut Rd
Estero, FL 34134

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Homebuyers Facing Thousands in Fines After Purchasing Renovated Houses

Buying a home can be a complicated process, especially for first-time homebuyers, NBC 6 South Florida reported. How a misstep left two homeowners on the hook for thousands in government fines, and how to avoid it.

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Homeowners in Tampa Neighborhood Say Roofs Are Defective

More than 40 homeowners in a New Tampa neighborhood say their roofs are leaking and defective. Allie Corey of FOX 13 Tampa Bay reports.

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