CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - TUESDAY, OCTOBER 13, 2026

Colorado capitol building

For Colorado’s owners, developers, general contractors, and subcontractors, the changes warrant careful consideration.

Colorado’s New Mechanic’s Lien Law: Bigger Claims, Stronger Protections, and New Risks for Owners and Contractors

October 12, 2026
David McLain - Colorado Construction Litigation Blog

On April 6, 2026, the same day that the Colorado Supreme Court issued its decision in Ralph L. Wadsworth Construction Company, LLC v. Regional Rail Partners, Governor Jared Polis signed Senate Bill 26-074 into law. The legislation, which took effect on August 12, 2026, clarifies the amounts that may be included in mechanic’s liens and public construction payment claims, as well as the circumstances under which those claims may be considered excessive.

While the timing of the Supreme Court’s decision and the Governor’s approval of SB 26-074 is noteworthy, the legislation has implications extending beyond the public works claims addressed in Wadsworth. Most significantly, it expressly addresses disputed and unliquidated amounts, including delay and disruption costs, in mechanic’s liens filed against private construction projects.

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

Miami construction

Many construction defects cases involve Florida’s Building Code.

Properly Taking Judicial Notice of Florida’s Building Code

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

Many construction defects cases involve Florida’s Building Code. A recent non-construction case, BSREP II PBG Resort, LLC v Ginsburg, 2026 WL 265226 (Fla. 4th DCA 2026), discussed a court taking judicial notice of a provision in the Florida Building Code. This case was a premise liability case where the plaintiff tripped in an asphalt parking lot. The plaintiff, without complying with proper procedural notice protocol, asked the court to take judicial notice of a section of Florida’s Building Code, i.e., admitting this section as relevant evidence in the case. The trial court granted the request for judicial notice and the plaintiff used this as the basis of her cross-examination, the jury instructions, and closing argument that the violation of this section of Florida’s Building Code was evidence of negligence. This was in error.

First, Florida’s Building Code is NOT a statute but an administrative rule. Ginsburg, supra. As an administrative rule, a court “may” but is not obligated to take judicial notice of the rule – it is a permissive judicial notice request per Florida Statute s. 90.203 and 90.202(9). This is important because the trial court viewed Florida’s Building Code as a statute it mandatorily had to take judicial notice of per Florida Statute s. 90.201, which was in error. Because it was permissive, the plaintiff needed to comply with statutory procedural notice protocols, which the plaintiff failed to do.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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Hailstorm on metal roof

A hailstorm struck the insured school buildings causing indentations in the buildings’ metal roofs.

Function Over Form: Eighth Circuit Narrows Application of Cosmetic Damage Exclusion

October 12, 2026 — Ali Jamwal - SDV Fenchurch

Introduction
In a significant decision for policyholders, the United States Court of Appeals for the Eighth Circuit adopted a narrow interpretation of an exclusion for cosmetic roof damage caused by wind or hail.[1] The court held that for a cosmetic damage exclusion to apply, an insurer must prove that the roof’s ability to function as a barrier to the elements is not impaired as compared to its functionality prior to the loss or damage.

Background
In April 2022, a hailstorm struck the insured school buildings causing indentations in the buildings’ metal roofs. The hail did not puncture the roofs’ metal, and no leaks were reported. The insurer denied the claim based on the policy’s cosmetic damage exclusion, which precluded coverage for “cosmetic damage to roof surfacing caused by wind and/or hail.” Cosmetic damage was defined as “superficial damage that altered the appearance of the roof surfacing, but such damage does not prevent the roof from continuing to function as a barrier to entrance of the elements to the same extent as it did before.”

Mr. Jamwal may be contacted at ali.jamwal@sdvfenchurch.us

Reprinted courtesy of Ali Jamwal, SDV Fenchurch

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Law gavel justice

The District Court denied the insurer’s motion to dismiss the additional insured’s claim that the appointment of independent counsel was required.

Court Finds Potential Conflicts In Denying Insurer’s Motion to Dismiss Claim for Independent Counsel

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

The District Court denied the insurer’s motion to dismiss the additional insured’s claim that the appointment of independent counsel was required. S. Cal. Edison Co. v. Travelers Prop. Cas. Co of Am., 2025 U.S. DIst. LEXIS 148495 (C.D Calif. July 15, 2025).

Southern California Edison Company (SCE) entered a Master Services Agreement with its contractor, SASCO whereby SASCO agreed to provide services concerning electrical pole repair and replacement. SASCO was required to obtain primary and excess general liability policies and to name SCE as an additional insured. SASCO obtained such policies from Travelers, naming SCE as an additional insured. The policies limited coverage for SCE to covered damages arising from SASCO’s work.

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

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

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Law meeting

Dallas Partner Mark Cronenwett recently secured a decision from the Dallas Court of Appeals that vacated a default judgment against his mortgage lender client.

Mark Cronenwett Obtains Appellate Ruling Vacating Default Judgment Against Mortgage Lender Client

October 12, 2026 — Lewis Brisbois

Dallas Partner Mark Cronenwett recently secured a decision from the Dallas Court of Appeals that vacated a default judgment against his mortgage lender client, on the grounds that the client was never properly served with the complaint.

In prior litigation, a real property investor purchased a Texas residential property for pennies on the dollar at an HOA foreclosure sale. That investor then filed a frivolous lawsuit against Lewis Brisbois' mortgage-lender client to invalidate its lien, contending that mortgage lender had abandoned the debt because it failed to respond to the investor’s alleged requests for information about the amounts owed on the loan.

Reprinted courtesy of Lewis Brisbois

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Cybersecurity red exclamation point

The article examines how contractors’ increasing reliance on interconnected technologies and AI can make cyberattacks more sophisticated.

Dotted Line: How Construction Is Dealing with Cybersecurity in the Age of AI

October 12, 2026 — Richard R. Volack - Peckar & Abramson, PC

Richard R. Volack, Partner in P&A’s New York office and Chair of the firm’s Cyber Security & Data Privacy practice, was recently quoted in “Dotted Line: How Construction Is Dealing with Cybersecurity in the Age of AI,” an article written by Construction Dive. The article examines how contractors’ increasing reliance on interconnected technologies and AI can make cyberattacks more sophisticated. It discusses the heightened risks for government contractors and smaller subcontractors, including the potential exposure of sensitive project information, personal data, and financial records. It also explores practical measures contractors can take to mitigate these risks, such as strengthening contractual protections, conducting penetration testing, obtaining appropriate cyber insurance, implementing multifactor authentication, and providing employees with regular cybersecurity training.

Mr. Volack may be contacted at rvolack@pecklaw.com

Reprinted courtesy of Richard R. Volack, Peckar & Abramson, PC

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Drill rig

OSHA opens investigation as Miami-Dade records identify Keller North America as soil-improvement contractor.

Drilling Rig Topples at Citadel Miami Headquarters Site, Injuring Four

October 12, 2026 — Bryan Gottlieb - Engineering News-Record

An 85-ft drilling rig working at the site of Citadel's planned global headquarters in Miami toppled into Brickell Bay Drive Sept. 14, striking vehicles and a construction container, sending three workers and a motorist to hospitals.

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

Reprinted courtesy of Bryan Gottlieb, Engineering News-Record

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Construction workers

The new law adds another cost consideration to routine scheduling decisions on construction projects.

New York Construction: New Rules for Reporting and Cancellation Pay

October 12, 2026 — Meghan Douris & Howard Wexler - The Construction Seyt

Effective December 8, 2026, covered New York construction employers generally must provide up to four hours of reporting pay when an employee reports for a scheduled shift but receives no work, and two hours of pay when a scheduled shift is canceled with less than 12 hours’ notice. Separate requirements apply to certain prevailing-wage construction projects. Before the law takes effect, contractors should identify which projects and employees are covered and make sure their scheduling, payroll, labor, and contract practices are ready.

What the New Law Requires
New York’s Construction Reporting Pay Act introduces two principal compensation requirements for covered construction employees:

  • Reporting pay: An employee who reports for a scheduled shift but is not provided work generally must receive up to four hours of pay.
  • Shift-cancellation pay: An employee generally must receive two hours of pay when a scheduled shift is canceled with less than 12 hours’ notice.

Reprinted courtesy of Meghan Douris, Seyfarth and Howard Wexler, Seyfarth

Ms. Douris may be contacted at mdouris@seyfarth.com
Mr. Wexler may be contacted at hwexler@seyfarth.com

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Boxing gloves

Competition on federal construction projects continues to get tighter due to a recent Federal Acquisition Regulation final rule.

Fight for Your Right: Effects of FAR Final Rule on Construction

October 12, 2026 — Michael Altman - Construction Executive

Since the Federal Acquisition Regulation final rule Use of Project Labor Agreements for Federal Construction Projects took effect, contractors seeking to compete for federal projects of $35 million or more must “negotiate or become a party to a project labor agreement with one or more labor organizations.” While this requirement significantly reduces competition for covered procurements, contractors may seek to restore competition on individual solicitations by filing a bid protest with the U.S. Court of Federal Claims.

Bid protests through the COFC become possible once a federal agency posts a solicitation that includes contract provisions mandating a PLA. (In some cases, a presolicitation notice that a PLA mandate will be applied may be sufficient.)

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

Mr. Altman may be contacted at altman@abc.org

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Water

Federal Clean Water Act jurisdiction may be about to get considerably narrower.

Perennial Question, Perennial Answer? EPA and Army Corps Propose Year-Round Standard for WOTUS that Could Reshape Clean Water Act Jurisdiction

October 12, 2026 — Ashleigh K. Myers & Jillian Marullo - Gravel2Gavel Construction & Real Estate Law Blog

Federal Clean Water Act jurisdiction may be about to get considerably narrower. On September 4, 2026, the U.S. Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers (Corps) announced a supplemental notice of proposed rulemaking that would limit federal authority over streams and wetlands to those containing water year-round—a “perennial” standard that would go beyond even what the Supreme Court required in Sackett v. EPA, 598 U.S. 651 (2023). The supplemental notice offers two options for revising the definition of “waters of the United States” (WOTUS) under the Clean Water Act (CWA): One would define “relatively permanent” waters as perennial, and the other would require perennial surface water to establish a wetland’s continuous surface connection to a jurisdictional water. If adopted, either option would substantially reduce the number of streams, wetlands and other water features subject to federal permitting, with the sharpest effects in arid and semi-arid regions where rainfall patterns leave many waterways dry for portions of the year.

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

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

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Good better best blocks

Snell & Wilmer is pleased to announce that 21 of the firm’s attorneys have been named 2027 Lawyers of the Year by Best Lawyers®.

21 Snell & Wilmer Attorneys Named Lawyers of the Year by Best Lawyers® for 2027

October 12, 2026 — Snell & Wilmer

PHOENIX – Snell & Wilmer is pleased to announce that 21 of the firm’s attorneys, located across eight offices, have been named 2027 Lawyers of the Year by Best Lawyers®.

In conjunction with selection to the 2027 edition of The Best Lawyers in America® guide, the “Lawyer of the Year” recognition is awarded to individual lawyers with the highest overall peer-feedback for a specific practice area and geographic region. Only one lawyer is recognized for each practice area and location.

Reprinted courtesy of Snell & Wilmer

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Humanoid robot construction

Humanoid robots are making headlines, but are they ready for deployment on construction sites? Learn what robots can really do today.

Humanoid Robots in Construction: The Reality Right Now

October 12, 2026 — Aarni Heiskanen - AEC Business

Humanoid robots are getting a lot of media attention. Videos of robots doing backflips and kung fu moves suggest that a general-purpose machine worker is just around the corner. A recent visit by the Finnish technology magazine Tekniikka&Talous to crane manufacturer Konecranes offers a more sober picture. I think it is a useful reality check for anyone in the AEC industry wondering what humanoids can actually do today.

What a Humanoid Can Do in a Controlled Environment
Konecranes bought a Unitree G1 EDU humanoid in autumn 2025, likely as the first Finnish industrial company to do so. With separately purchased five-finger hands and other extras, the price came close to €100,000.

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

Reprinted courtesy of Aarni Heiskanen, AEC Business

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On Hold

Construction work on Citadel’s new headquarters in Miami has been paused following an accident on the site last week, the Wall Street Journal reported.

Citadel’s Miami HQ Construction on Hold After Accident, Report Says

October 12, 2026 — Giulia Morpurgo – Bloomberg

Construction work on Citadel’s new headquarters in Miami has been paused following an accident on the site last week, the Wall Street Journal reported.

The collapse of a rig on Monday prompted county authorities to issue a stop-work order pending an investigation, according to the newspaper, which cited a local building official. It’s unclear how long the stoppage will last or what caused the accident, the WSJ wrote on Sunday, adding that such probes can take up to six months.

Reprinted courtesy of Giulia Morpurgo, Bloomberg

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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

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Glass of water in desert

Mesa Approves $3B Legacy Park Under Strict Desert Water Rules

October 12, 2026 — Greg Aragon - Engineering News-Record

The Mesa City Council approved Legacy Park and Gateway Crossing on Sept. 14, a roughly $3 billion mixed-use development that will support a growing area, including Mesa Gateway Airport, Arizona State University's Polytechnic campus, Arizona Athletic Grounds and State Route 24.

ENR may be contacted at enr@enr.com

Reprinted courtesy of Greg Aragon, Engineering News-Record

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Data center interior

ENR Top 400 Review +: Data Center Boom Raises Stakes

October 12, 2026 — Emell D. Adolphus Keller & Jonathan Keller - Engineering News-Record

Propelled by a surge in data center projects that has intensified power generation and infrastructure needs, ENR’s Top 400 Contractor revenue rose 11.8% to $671.4 billion in 2025. With an estimated nearly $7 trillion that cloud service providers will spend to bring artificial intelligence operations up to speed, contractors say the ongoing AI boom is a big opportunity for construction.

Reprinted courtesy of Emell D. Adolphus, Engineering News-Record and Jonathan Keller, Engineering News-Record

Mr. Adolphus may be contacted at adolphuse@enr.com
Mr. Keller may be contacted at kellerj@enr.com

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Insurance policies on computer

Fourth Circuit Hones Interpretation of “Related Claims” Under Claims-Made Professional Liability Policies

October 12, 2026 — Rachel S. Pearson - SDV Fenchurch

The U.S. Court of Appeals for the Fourth Circuit recently took a broad approach to interpreting the scope of “related” claims in claims-made professional liability policies.[1] The Court, applying Virginia law, held that two separate lawsuits filed during different policy periods – which policy periods were insured by two separate insurers – were sufficiently related such that they constituted a single claim and were rightfully covered under the earlier policy period.

Avertest, LLC (“Avertest”), a biological testing company, found itself a defendant in two lawsuits filed within eighteen (18) months of each other. The first suit, a class action (uncertified) styled as Gonzalez v. Avertest, LLC, was filed in February 2021.[2] At that time, Avertest carried professional liability insurance through Columbia Casualty Company (“Columbia”). The Gonzalez complaint alleged various defects in Avertest’s testing methods and criticized its quality control techniques. Avertest initiated a claim with Columbia, which accepted Avertest’s defense and ultimately paid to settle the suit on Avertest’s behalf.

Ms. Pearson may be contacted at rachel.pearson@sdvfenchurch.us

Reprinted courtesy of Rachel S. Pearson, SDV Fenchurch

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Seminar

Forum on Construction Law 2026 Regional

October 12, 2026 — Beverley BevenFlorez – CDJ Staff

The American Bar Association (ABA) will present their annual Forum on Construction Law in four different cities on November 19th. Attendees at New York, Tampa, Minneapolis, and Denver will learn about how to manage construction risk with insurance. The faculty will cover key insurance products as well as contract obligations and performance obligations. You may download a brochure on the four-city event here.

November 19th, 2026
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Dana Point Homes at Risk of Collapse as High Surf Erodes Orange County Coast

Homeowners are watching anxiously as high tides buckle sidewalks and threaten coastal homes already battered by previous storms, ABC7 reported.

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Days of Destructive Waves from Tropical Storm Rachel Leave 8 Buildings Red-Tagged in Long Beach

Inspectors have brief windows between high tides to assess Long Beach homes damaged by waves that are washing away sand beneath foundations, ABC7 reported.

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