CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - TUESDAY, JUNE 17, 2025

Group of people with question marks above their heads

The goal is to reduce these “nuclear verdicts,” which have created uncertainty for businesses and insurers in both liberal and conservative counties in the state of Texas.

Texas House Passes Medical Damages Reform: What It Means for Insurance Defense Attorneys

June 16, 2025
Elliott Wright - Kahana Feld

A major development out of the Texas Legislature is poised to bring meaningful change to the landscape of personal injury litigation—and insurance defense attorneys should take note.

Senate Bill 30, recently passed by the Texas House, would limit recoverable medical damages in personal injury and wrongful death lawsuits to the amounts actually paid for medical treatment, rather than the often-inflated amounts billed. The goal is to reduce these “nuclear verdicts,” which have created uncertainty for businesses and insurers in both liberal and conservative counties in the state of Texas. By tying damage awards to more objective metrics like Medicare rates, the bill introduces a fairer and more consistent standard for evaluating medical costs in litigation.

For those who defend insurance carriers and insureds, this legislation represents a step toward leveling the playing field. Plaintiffs will no longer be able to present inflated medical billing as a basis for extraordinary damages. The bill also makes several practical changes to the discovery and evidence process, shifting from itemized billing requirements to summary billing, preserving judicial discretion on the admissibility of certain medical history, and reaffirming privacy protections between patients, doctors, and attorneys. These changes help defense counsel focus more on the merits of the case and less on battling excessive or speculative medical figures.

Mr. Wright may be contacted at ewright@kahanafeld.com

Reprinted courtesy of Elliott Wright, Kahana Feld

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CDJ NEWS THIS WEEK

Illustration of two business people one cuts contract

Today’s post is a cautionary tale in being sure you, as a construction professional, follow your contract if you want to be successful later in the unfortunate event of litigation.

Don’t Be the First One to Breach Your Construction Contract

June 16, 2025 — Christopher G. Hill - Construction Law Musings

It has been a while since I made a substantive post here at Construction Law Musings. Things have been a bit busy here at the firm and at home (graduations, 31st anniversary, etc.) but I plan to get back on the horse and keep the posts going more consistently.

Today’s post is, as you may have guessed, a cautionary tale in being sure you, as a construction professional, follow your contract if you want to be successful later in the unfortunate event of litigation. The latest case of which I am aware that shows this to be true is Advanced Training Grp. Worldwide, Inc. v. Pro-Active Techs, Inc. out of the 4th Circuit Court of Appeals. This matter involved a joint venture between ATG and Pro-Active for federal contract work, the details of which are well laid out in the opinion so I won’t get into them here. The key factor leading to the opinion (discussed below) was that the contract had a small business set-aside contract requiring a small business to self perform at least 51% of the work, meaning that subcontracted work did not count toward the 51% requirement. Further, the joint venture memorandum of understanding (MOU) between the parties required that Pro-Active (the small business) have 2/3 voting rights. However, when the rubber hit the road, ATG insisted that the entity contracting with the government apportion the board voting 50/50 between the two. This insistence along with ATG having started subcontracting work to others endangered the small business set aside status that was the basis for the relationship in the first place. Based on this Pro-Active sent a letter to ATG terminating the JV and, of course, ATG sued for breach of contract.

Mr. Hill may be contacted at chrisghill@constructionlawva.com

Reprinted courtesy of The Law Office of Christopher G. Hill

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Old Way New Way Arrows Man Must Choose

In this matter, a lessor was pursuing additional compensation from the government (as lessee) due to delays (more than 400 days) in the government’s acceptance of its lease term.

Cardinal Change Examines the Entire, Factual Undertaking

June 16, 2025 — David Adelstein - Florida Construction Legal Updates

A recent matter with the Civilian Board of Contract Appeals discusses a cardinal change theory of liability.

A cardinal change “occurs when the government effects an alteration in the work so drastic that it effectively requires the contractor to perform duties materially different from those originally bargained for.” … A cardinal change can occur even when there is no change in the final product because “it is the entire undertaking of the contractor, rather than the product, to which we look.”

Boyd Atlanta Rhodes, LLC v. General Services Administration, CBCA 7753, 2025 WL 1202011 (CBCA 2025) (citations omitted).

In this matter, a lessor was pursuing additional compensation from the government (as lessee) due to delays (more than 400 days) in the government’s acceptance of its lease term. The lease provided that the contracting officer could, at any time, make direct changes to tenant improvements, etc., prior to the lease term commencing. There were more than 400 days of delay that resulted in the government’s delay in accepting the lease term. The lessor claimed the government was responsible for the delay and sought lost rental income under the argument of cardinal change.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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Insurance claim form on tablet

Viva Inn Motel submitted a claim to its insurer, Associated Industries Insurance Company, for water damage from a burst pipe occurring on February 17, 2021.

Fifth Circuit Affirms District Court's Grant of Summary Judgment to Insurer on Property Loss Claim

June 16, 2025 — Tred R. Eyerly - Insurance Law Hawaii

The Fifth Circuit affirmed the district court's grant of summary judgment to the insurer despite the insured's claim it was not adequately compensated for its loss. In the Matter of New York Inn, Inc., 2025 U.S. App. LEXIS 7887 (5th Cir. April 3, 2025).

Viva Inn Motel submitted a claim to its insurer, Associated Industries Insurance Company, for water damage from a burst pipe occurring on February 17, 2021. New York Inn, a corporate affiliate of Viva, was an additional insured on the policy. An adjuster investigated for Associated and recommended that Associated pay Viva $153,961.57, representing the actual cash value (ACV) amount of the loss. An adjuster for Viva and New York Inn (Motel Owners) provided an estimate for replacement cost value (RCV) of repairs for $175,256.42.

Associated sent a payment to Viva for $153,961.57 and requested documentation to support the payment for RCV. Viva requested an advance payment for Viva's business interruption loss. Associated responded that it would consider the payment but requested Viva's profit and loss statements for the prior three months to calculate the payment. The Motel submitted a profit and loss statement for October 20, 2020, through December 20, 2024. Based on this document, Associated estimated the business interruption loss from February 17, 2021, to May 31, 2021, as $74,295. This estimate was used to calculate the payment owed to Viva and a check was issued for $26,349.82. An advance payment of $10,000 for content loss was also issued, but Associated noted that Viva had not submitted any inventory of damaged contents.

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

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

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Blurred port

At a recent meeting in Washington, D.C., there was a discussion about growing federal enforcement efforts that contractors should not ignore.

A New Tariffs Twist: Aggressive Enforcement of False Claims Act Violations Could Potentially Trip Up Construction Companies

June 16, 2025 — Brian Perlberg - ConsensusDocs

There is a new twist on issues revolving around tariffs potentially impacting general contractors. AGC members Chris Denny, Vice President and Associate General Counsel of Turner Construction Company, and Bob Lizza, Chief Legal Officer, Consigli Construction Co., Inc., highlighted recent developments that could have serious implications for the construction industry. At a recent meeting in Washington, D.C., there was a discussion about growing federal enforcement efforts that contractors should not ignore.

It has been publicly reported that the U.S. Department of Justice intends to “aggressively” enforce the False Claims Act (FCA), as Deputy Assistant Attorney General Michael Granston said in a speech at the Federal Bar Association’s annual qui tam conference earlier this year. FCA cases alleging that an importer evaded customs duties by undervaluing imported products, misclassifying imports, or misrepresenting a product’s country of origin are on the rise.

Mr. Perlberg may be contacted at brian.perlberg@agc.org

Reprinted courtesy of Brian Perlberg, ConsensusDocs

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Small Pretend House in Flood with Umbrella over it

Subsidence is a worsening risk and insurers don’t want to pick up the tab.

Homeowners Battle Insurers Over $2.9 Trillion Climate Risk

June 16, 2025 — Claudia Cohen, Gautam Naik & Tom Fevrier - Bloomberg

When Bernard Weisse first noticed a tiny crack in the outer wall of his house on the outskirts of Paris, he dismissed it as little more than a nuisance. But in the four years since, a spiderweb of fissures has spread from floor to ceiling and snaked into virtually every corner of his home.

“We can hear loud cracking noises especially when it’s warm outside,” said the retired salesman and father of three. “Sometimes, I think we should get all our stuff together and leave.”

Like a growing number of people around the world, Weisse is grappling with subsidence — a term for the sinking land that’s causing damage to homes and other structures built on it. The slow-moving climate disaster has already caused tens of billions in damage and has the potential to affect 1.2 billion people in areas accounting for more than $8 trillion of economic output.

Reprinted courtesy of Claudia Cohen, Bloomberg, Gautam Naik, Bloomberg and Tom Fevrier, Bloomberg

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Confetti coming out of trophy

Chambers USA ranks the leading firms and lawyers in an extensive range of practice areas throughout America.

Chambers USA Recognizes Hunton’s Insurance Coverage Practice in 2025 Guide

June 16, 2025 — Hunton Andrews Kurth LLP - Hunton Insurance Recovery Blog

Hunton Andrews Kurth LLP is pleased to announce that its Insurance Coverage practice was recognized nationally for Insurance: Dispute Resolution – Policyholder in the recently released 2025 Chambers USA guide. The team also received state rankings in Florida (Insurance: Dispute Resolution), Georgia (Insurance), the District of Columbia (Insurance: Policyholder), and Massachusetts (Insurance).

In addition, the 2025 rankings included individual recognitions for Lorelie “Lorie” S. Masters (USA Nationwide and District of Columbia), Michael S. Levine (District of Columbia), Koorosh “KT” Talieh (District of Columbia), Walter J. Andrews (Florida), Andrea DeField (Florida), Cary D. Steklof (Florida), Lawrence J. Bracken II (Georgia), and Geoffrey B. Fehling (Massachusetts).

Reprinted courtesy of Hunton Andrews Kurth LLP

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Half desert half green environment signaling climate change

These legal battles are unfolding in courts across the country, with several constitutional questions now squarely at issue.

States and Municipalities Advance Climate Change Lawsuits as Trump Administration Seeks to Block Them

June 16, 2025 — Amanda G. Halter, Ashleigh Myers & Jillian Marullo - Gravel2Gavel Construction & Real Estate Law Blog

Even as the Trump administration moves to block state and local climate liability efforts, states and municipalities continue to advance lawsuits seeking to hold fossil fuel companies liable for harms associated with climate change. Most recently, the State of Hawaii initiated a climate deception lawsuit, and the City of Charleston, South Carolina, submitted a briefing in a pending case—each alleging that the fossil fuel industry engaged in a decades-long campaign to mislead the public about the risks of fossil fuel consumption and climate change. Both developments come as the Trump administration escalates its opposition to such suits, issuing on April 8 an executive order (EO), Protecting American Energy From State Overreach, targeting and filing lawsuits making constitutional challenges to state-led climate litigation and legislative actions—including a preemptive action against Hawaii just days before the state’s filing.

Hawaii Files Suit Against Oil Companies—Despite DOJ’s Preemptive Legal Threat
On May 1, 2025, Hawaii Attorney General, Anne Lopez, filed suit in Hawaii state court against 20 major oil companies and the American Petroleum Institute. The state alleges that the defendants were aware, as early as the 1960s, that fossil fuel combustion posed “catastrophic” climate risks but concealed those risks from the public and actively misled consumers through a decades-long “greenwashing” campaign by marketing their products as safe, necessary or environmentally friendly.

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

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

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Star Trophy

According to the publication, this year’s honorees include 37 talented attorneys who “represent the strength and the future of Indiana’s legal profession.”

Candace Dickson Recognized as “Up & Coming Lawyer” by The Indiana Lawyer

June 16, 2025 — Lewis Brisbois Newsroom

Northwest Indiana (June 3, 2025) – Northwest Indiana Associate Candace C. Dickson was recently honored by The Indiana Lawyer as an “Up & Coming Lawyer” at the organization’s “Leadership in Law” awards ceremony.

According to the publication, this year’s honorees include 37 talented attorneys who “represent the strength and the future of Indiana’s legal profession.”

When asked why she chose law as a career, Mrs. Dickson said “I decided to enter the legal profession so that I could assist my community with understanding the law. Many of them do not have access to an attorney. I wanted to fill that gap for individuals who looked like me and were from my hometown.”

Reprinted courtesy of Lewis Brisbois

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Top 50

Construction Executive established the rankings by asking over 600 hundred U.S. construction law firms to complete a survey.

Ahlers Cressman & Sleight PLLC recognized by Construction Executive in The Top 50 Construction Law Firms™ of 2025

June 16, 2025 — Travis Colburn - Ahlers Cressman & Sleight

Ahlers Cressman & Sleight PLLC is pleased to announce that it has been recognized again by Construction Executive as one of The Top 50 Construction Law Firms in its 2025 rankings.

Since its first publication in 2003, Construction Executive magazine has served as the leading source for news, market developments, and business issues impacting the construction industry, and its articles are designed to help owners and top managers run more profitable and productive construction businesses.

Construction Executive established the rankings by asking over 600 hundred U.S. construction law firms to complete a survey. Constructive Executive’s data collection includes: 2024 revenues from the firm’s construction practice, the number of attorneys in the firm’s construction practice, the percentage of the firm’s total revenues derived from its construction practice, the number of states in which the firm is licensed to practice, the year in which the construction practice was established, and the number of construction industry clients served during the fiscal year 2024.

Mr. Colburn may be contacted at travis.colburn@acslawyers.com

Reprinted courtesy of Travis Colburn, Ahlers Cressman & Sleight

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Home development on fire

Steve Bennett will lead a team of experts focusing on how risk mitigation can positively influence property and casualty insurance in areas prone to catastrophic events.

Mercury Insurance Builds Climate Science Team to Tackle the Impact of Extreme Weather Events

June 16, 2025 — Mercury Insurance

LOS ANGELES, Calif. (June 10, 2025) -- Mercury Insurance (NYSE: MCY), a leading provider of property and casualty insurance, has appointed Steve Bennett as its Senior Director of Climate and Catastrophe Science. In this new position, Bennett will build and lead a team dedicated to helping identify ways Mercury and its policyholders can work together to better prepare for — and be more resilient -- in the face of increasingly severe climate-driven weather events.

This move is the latest in a series of investments by Mercury to better understand and counteract forces facing insurance providers in high-risk areas. Climate change, population growth and resulting urban expansion has placed the insurance industry at a crossroads, resulting in many insurers pulling back from areas prone to wildfires, hurricanes and other catastrophic climate events. Mercury has taken a different approach to this challenge over the past year, working with homeowners, municipalities and government to create more resistant and insurable risks. The result has led to Mercury writing more policies in areas where its competitors have cancelled or non-renewed coverage for tens of thousands of consumers.

Mercury's efforts on this front have been challenged over the past year in dramatic ways. Late last year, Mercury announced that it was the first major insurer to begin writing homeowners coverage for homes in Paradise, CA, a town largely destroyed by the Camp Fire in November 2018. The move was made possible through the efforts of local and state government, the Insurance Institute for Business and Home Safety (IBHS) -- and the homeowners -- who worked in lockstep to reimagine zoning, construction and many other aspects of the rebuilding process. Mercury leadership closely followed the progress in Paradise, taking numerous trips to the area to see the transformation first-hand and to use the new parameters instituted for wildfire mitigation in their assessment of risk in that area.

Following Mercury's return to Paradise, the catastrophic fires that ravaged Pacific Palisades and Altadena earlier this year once again underscored the enormity of the challenge. "Mercury continues to develop a different approach to managing catastrophic risks," said Victor Joseph, President and Chief Operating Officer of Mercury Insurance. "We look at geography, prevailing wind patterns, building methods and materials, and policy concentration and apply this knowledge to individual risks. It's not good enough to simply rule out entire zip codes. There are ways to significantly reduce risk even in the highest danger areas that would make these risks acceptable for Mercury.

Bennett joins Mercury with over three decades of leadership at the nexus of extreme weather, climate risk and effective risk management. He also serves on the adjunct faculty at the University of North Carolina at Chapel Hill, where he teaches and leads research for the Institute for Risk Management and Insurance Innovation. Previously, he was co-founder and chief scientist at Demex, where he led pioneering work on severe convective storms -- including tornadoes, hail and derechos -- helping to translate cutting-edge science into novel reinsurance solutions.

Homeowners looking at burned house

This guide is meant to help provide homeowners the steps they can take to start recovering from a disaster to move back into their home.

A Homeowner’s Guide to Recovering After the Palisades Fire

June 16, 2025 — Paul Dashevsky - GreatBuildz

If you’ve been impacted by the massive palisades fire in Los Angeles, we’ve prepared a comprehensive guide of things to consider as you’re starting the process to recover from the fire. If you’ve lost your home to the fire, we offer our deepest condolences and are available to advise you on options to rebuild your property.

If your home has been partially affected by the fire, whether from fire damage, water damage or smoke damage…this guide is meant to help provide you the steps you can take to start recovering from this disaster to move back into your home.

Find Temporary Housing
If you think you’ll need to be out of your house for an extended period of time, your first step is finding accommodations for yourself and your family. If you can’t stay with family or friends for an extended period of time, you’ll need to start looking for options such as extended stay hotels, Airbnb rentals, apartments, etc.

Here are some resources to consider that might be helpful with rental assistance, etc after the LA wildfires. Please remember to ask your insurance company if they have a list of rental options in the Los Angeles area.

Reprinted courtesy of Paul Dashevsky, GreatBuildz

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Bridge tunnel

The tunnels are part of a 10-mile project corridor spanning both sides of the harbor.

Milestone Tunnels are Centerpiece of Landmark Virginia Bridge-tunnel Expansion

June 16, 2025 — Jim Parsons - Engineering News-Record

Constructed as the world’s first bridge-tunnel complex in 1957, the Hampton Roads Bridge-Tunnel was an engineering milestone in a natural harbor already rich in history, from the landing point for voyagers who would establish the first permanent English settlement upriver at Jamestown to the first battle of ironclad vessels during the Civil War.

ENR may be contacted at enr@enr.com

Reprinted courtesy of Jim Parsons, Engineering News-Record

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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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Coming Soon

Toll Brothers Announces New Luxury Home Community Coming Soon to Flagler Beach, Florida

June 16, 2025 — Toll Brothers, Inc.

FLAGLER BEACH, Fla., May 16, 2025 (GLOBE NEWSWIRE) -- Toll Brothers, Inc. (NYSE:TOL), the nation's leading builder of luxury homes, today announced its newest Northeast Florida community, Toll Brothers at Veranda Bay, is coming soon to Flagler Beach, Florida. This exclusive gated community located just minutes from the beach will feature outstanding amenities and modern single-family home designs. Site work is underway, and the community is anticipated to open for sale in late 2025.

Located on the banks of the Intracoastal Waterway and just minutes from the beach, Toll Brothers at Veranda Bay offers an unparalleled coastal lifestyle. The community will feature robust amenities including a future marina, resort-style pool, fitness center, dog park, pickleball and tennis courts, and community access to the Intracoastal Waterway. Residents will enjoy the convenience of nearby shopping, dining, and entertainment options, with Jacksonville and Orlando each about an hour away. Homes are anticipated to be priced from the mid-$500,000s.

Construction workers happy

Nonresidential Construction Added Jobs in April Despite Headwinds

June 16, 2025 — ABC - Construction Executive

WASHINGTON, May 2—The construction industry added 11,000 jobs in April, according to an Associated Builders and Contractors analysis of data released today by the U.S. Bureau of Labor Statistics. On a year-over-year basis, industry employment has grown by 143,000 jobs, an increase of 1.7%.

Nonresidential construction employment increased by 8,000 positions on net, with growth in 2 of the 3 subcategories. Nonresidential specialty trade added the most jobs, increasing by 4,900 positions, while nonresidential building added 3,600 jobs. Heavy and civil engineering lost 500 positions for the month.

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

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National Homeownership Month

Mercury Insurance Marks National Homeownership Month with Resources to Help Protect What Matters Most

June 16, 2025 — Mercury Insurance

LOS ANGELES, Calif. (June 4, 2025) — In recognition of National Homeownership Month, Mercury Insurance is reaffirming its commitment to helping homeowners safeguard their most valuable investment — their homes.

For more than 60 years, Mercury has provided millions of homeowners across the United States with affordable coverage and trusted advice. This June, the company is expanding its outreach through seasonal safety tips, digital tools, and educational resources available to policyholders at the company's website and through the Mercury blog.

Mercury's National Homeownership Month efforts include:

  • Home Safety Education: Seasonal content on topics like extreme heat, hurricane prep, and wildfire defense helps homeowners proactively reduce risks.
  • Insurance Coverage Reviews: Mercury encourages homeowners to evaluate their policies to ensure coverage reflects current home values, recent renovations and personal property. Mercury agents are available to help customers tailor their coverage and identify available discounts.
  • Smart Home Savings: Installing smart devices — such as leak detectors, smart thermostats and fire alarms — can enhance home safety and may qualify for discounts.
  • Digital Tools & Resources: The Mercury website offers checklists, seasonal prep guides and tips for improving home resilience year-round.

About Mercury Insurance
Headquartered in Los Angeles, Mercury Insurance (NYSE: MCY) is a multiple-line insurance carrier offering personal auto, homeowners, and renters insurance directly to consumers and through a network of independent agents in Arizona, California, Georgia, Illinois, Nevada, New Jersey, New York, Oklahoma, Texas and Virginia, as well as auto insurance in Florida. Mercury also writes business owners, business auto, landlord, commercial multi-peril and mechanical protection insurance in various states.

Since 1962, Mercury has provided customers with tremendous value for their insurance dollar by pairing ultra-competitive rates with excellent customer service, through nearly 4,100 employees and a network of more than 6,500 independent agents in 11 states. Mercury has earned an "A" rating from A.M. Best, as well as "Best Auto Insurance Company" designations from Forbes and Insure.com. For more information visit www.MercuryInsurance.com or follow the company on Twitter or Facebook

Seminar

14th Annual Construction Law in Florida Conference

June 16, 2025 — Beverley BevenFlorez – CDJ Staff

This two-day event presented by the Seminar Group will include case law and legislative updates and will cover industry-related topics such as Surety, Lien and Bond Issues, Alternative Dispute Resolution, and AI discussions. The conference is relevant for attorneys, contractors, and engineers.

October 14th-14th, 2025
Virtual Event

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Bus Facility Brings Mass Timber to Northern Arizona

Builders of the Downtown Connection Center in Flagstaff, the second CLT project in the state, had to contend with a site surrounded by trains, cars and buses.

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April Housing Starts Show Single-Family Construction Falls While Multifamily Rises Annually

CNBC's Diana Olick reports on the state of the housing market.

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