CONSTRUCTION DEFECT JOURNAL

"News and Information for Construction Defect and Claims Professionals"

CONSTRUCTION DEFECT JOURNAL - ISSUE 242749 - THURSDAY, NOVEMBER 6, 2025

House of Water in palm of hand

n 2018, the owners' tenants discovered persistent water pooling in the crawlspace beneath the unit - part of the building’s common area under the HOA’s control.

California Court Affirms $1.8 Million Judgment Against HOA for Failing to Investigate and Remediate Water Intrusion

November 4, 2025
Haight Brown & Bonesteel LLP

When an HOA ignores its duties under its covenants and restrictions, the consequences can be devastating. In Ridley v. Rancho Palma Grande Homeowners Association (Cal. Ct. App., Aug. 28, 2025, No. H052560), a Santa Clara couple secured a $1.8 million judgment after their condominium was rendered uninhabitable due to water intrusion, mold, and a sinkhole caused by an abandoned well beneath the property. The Court of Appeal upheld the judgment, finding that the HOA’s delay, deception, and failure to act breached its duties under the CC&Rs.

What Went Wrong at Rancho Palma Grande HOA
Retirees Doug Ridley and Sherry Shen owned a condominium in Santa Clara County. In 2018, their tenants discovered persistent water pooling in the crawlspace beneath the unit - part of the building’s common area under the HOA’s control. The issue worsened over time, culminating in severe water damage, mold growth, and ultimately, a sinkhole beneath the living room floor.

Reprinted courtesy of Haight Brown & Bonesteel LLP

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CDJ NEWS THIS WEEK



Contracts File

This article outlines some of the most common risk shifting provisions and why you should consider including them in your construction contracts.

Understanding Common Risk-Shifting Provisions in Construction Contracts

November 4, 2025 — Troy Mainzer - The Dispute Resolver

Whether you are an owner, general contractor, subcontractor, or supplier, your relationship to the project will almost certainly be governed by a contract. While provisions governing payment and scope of work are essential, risk-shifting provisions that allocate certain risks and liabilities among parties play a critical role in protecting you in the event of disputes that, with enough projects, are inevitable. This article outlines some of the most common risk shifting provisions and why you should consider including them in your construction contracts.

1. Indemnity
An indemnification provision is a contractual provision under which one party (the indemnitor) agrees to assume liability for the losses incurred by another party (the indemnitee). Most commonly, the indemnitor agrees to defend, reimburse, and hold the indemnitee harmless from certain specified liabilities, often those arising from the indemnitor's work or negligence. For example, a general contractor might require that its subcontractors indemnify the general contractor for any claim made against the general contractor that arises from wrongdoing relating to that subcontractor’s scope of work. However, parties should consult with an attorney to make sure that their indemnity language complies with applicable state laws. Most state statutes have provisions that set forth certain requirements for an indemnification provision to be enforceable and upheld in court.

Mr. Mainzer may be contacted at tmainzer@carltonfields.com

Reprinted courtesy of Troy Mainzer, Carlton Fields, P.A.

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Scaffold with workers in background

The U.S. District Court for the Southern District of New York addressed the scope of insurance coverage for workplace injuries on a Brooklyn, New York, construction project.

Mind The Gap!

November 4, 2025 — Daniel Lund III - JD Supra

The U.S. District Court for the Southern District of New York addressed the scope of insurance coverage for workplace injuries on a Brooklyn, New York, construction project, holding that the project owner’s insurer had no duty to defend or indemnify the owner in a personal injury lawsuit stemming from a construction accident.

The property owner hired a general contractor for a condominium project. In March 2020, an employee of one of the GC’s subcontractors was injured when a scaffold collapsed. The employee sued both the property owner at the general contractor in state court. The owner sought coverage and a defense from its commercial general liability insurer, but the insurer denied coverage, citing three exclusions: Contracted Persons, Independent Contractors, and Condominium.

Mr. Lund may be contacted at daniel.lund@phelps.com

Reprinted courtesy of Daniel Lund, Phelps

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Law meeting over insurance

The church sued and served a set of interrogatories and document demands, requesting production of the underwriting guidelines governing additional insured endorsements.

Insured’s Motion to Compel Production of Underwriting Materials Granted

November 4, 2025 — Tred R. Eyerly - Insurance Law Hawaii

The Supreme Court of New York granted the insured’s motion to compel the production of underwriting materials related to identifying additional insureds. Church of St. Andrew v. Western World Ins. Co., 2025 N.Y. Misc. LEXIS 7018 (N.Y. Sup. Ct. Aug. 5, 2025).

The Church of St. Andrew (“church”) retained GC Solutions to perform roofing work at its premises. The church required GC Solutions to name it as an additional insured under its general liability policy. GC Solutions provided a Certificate of Insurance naming the church as an additional insured under the policy issued by Western World.

While working on the roof, an employee of GC Solutions fell to his death. A wrongful death action was commenced by the decedent’s estate against the church. The church tendered its defense and indemnification to Western World. Western World disclaimed coverage, asserting that the church did not qualify as an additional insured under the policy.

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

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

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Severe Weather Alert

In a recent appeal with the Armed Services Board of Contract Appeals, a contractor pursued a weather delay claim.

Weather Delay Claim - Owner Delay Pushes Contractor into Worse Seasonal Adverse Weather

November 4, 2025 — David Adelstein - Florida Construction Legal Updates

In government contracting, a contractor is entitled to a time extension for “unusually severe weather.” However, this time extension is typically not compensable (meaning you get time, but not additional compensation). However, “a contractor may bring a claim for compensable delay when government delay pushes a contractor’s performance into a period of worse seasonal adverse-but not unusually severe-weather.” Appeals of - Thalle Construction Company, ASBCA No. 63685, 2025 WL 2496328, n.10 (ASBCA 2025) (citation omitted).

In a recent appeal with the Armed Services Board of Contract Appeals, a contractor pursued a weather delay claim. The contractor sought 39 days of adverse weather between the adjusted contract completion date and the actual substantial completion date claiming that the government pushed the contractor’s last 262 days of performance into worse seasonal adverse weather.

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

Reprinted courtesy of David Adelstein, Kirwin Norris

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Lady law statue

This case illustrates the need for careful wording in an uninsured contractor endorsement.

Federal Court Upholds Uninsured Contractor Endorsement; Finds Duty to Defend Anyway

November 4, 2025 — Craig Rokuson - Traub Lieberman

In the recent case of LM Ins. Corp. v. James River Ins. Co., 2025 U.S. Dist. LEXIS 189320 (S.D.N.Y. Sep. 25, 2025), the United States District Court for the Southern District of New York had occasion to interpret an Uninsured Contractor Endorsement in the context of an additional insured tender.

After a construction accident, the owner and general contractor tendered to a subcontractor, DATO, who had hired plaintiff's employer, Star. Investigations later revealed that DATO did not have a written contract with Star for the work at issue. DATO's insurer, Arch, denied any obligation to provide coverage to all parties seeking coverage, including additional insureds, based on DATO's failure to comply with the "New York Limitation Endorsement," which requires that "you," defined to be Arch's named insured, obtain certain pass through protections from subcontractors for New York projects, including a written contract.

Mr. Rokuson may be contacted at crokuson@tlsslaw.com

Reprinted courtesy of Craig Rokuson, Traub Lieberman

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Deed next to model house

Arizonans should be aware of a recent decision from the Arizona Supreme Court that increases consequences for unsuspecting victims of deed fraud.

The Dominguez Case and Deed Fraud: Who Criminals Target and How to Protect Yourself Against Fraud

November 4, 2025 — Lauren P. Merdinger, Ryan D. Konsdorf, Jordin Pettit & Alison Tobin - Snell & Wilmer

Arizonans should be aware of a recent decision from the Arizona Supreme Court that increases consequences for unsuspecting victims of deed fraud. Deeds are official documents that memorialize the owner of real property. When real property is bought, inherited, or otherwise conveyed, the deed is transferred to the new owner, who formally records the document with the county in which the real property exists to signify a change in ownership. However, scammers can create fraudulent deeds by forging landowner’s signatures, purporting to transfer the real property without the rightful owner’s consent. The Arizona Supreme Court’s recent ruling in Dominguez will impact victims of deed fraud moving forward, as it holds that if certain conditions are met, a recorded fraudulent deed can strip landowners of their property rights.1

The Case
In Estate of Magdalena Rios De Dominguez v. Renee Kay Dominguez, the Arizona Supreme Court was asked to address a family dispute over an unoccupied piece of real property in Maricopa County.2 In 1995, Magdalena and Isidro Dominguez acquired the property in question. After the couple divorced in 1998, their son Jose and his wife Renee recorded a deed in 2003 purporting to convey the property to themselves, and Jose and Renee began paying the taxes on the property from thereon. In 2020, Magdalena discovered the 2003 recorded deed and claiming it was forged, filed a “quiet title” suit asking the Court to declare her the rightful owner of the property.

Reprinted courtesy of Lauren P. Merdinger, Snell & Wilmer, Ryan D. Konsdorf, Snell & Wilmer and Jordin Pettit, Snell & Wilmer

Ms. Merdinger may be contacted at lmerdinger@swlaw.com
Mr. Konsdorf may be contacted at rkonsdorf@swlaw.com
Ms. Pettit may be contacted at jpettit@swlaw.com

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Zoning map

The case involved a 100-acre tract of land in St. Johns County, Florida, owned by the plaintiff.

Fort Lauderdale Team Secures Appellate Win Affirming Defense Verdict for Engineering Firm in High-Stakes Negligence Case

November 4, 2025 — Lewis Brisbois Newsroom

Fort Lauderdale, Fla. (October 1, 2025) - Fort Lauderdale Managing Partner Cheryl Wilke and Partner Alexander Harne secured an appellate victory from the Fifth District Court of Appeal affirming a complete defense verdict for their clients, civil engineering firm Gulfstream Design Group and its owner, Matthew Lahti, in a high-stakes professional negligence case in which the plaintiff had sought more than $20 million.

The case involved a 100-acre tract of land in St. Johns County, Florida, owned by the plaintiff. The land was zoned for rural farming, and she wished to sell the property for development. She entered into a contract with Southeast Georgia Acquisitions (“SGA”) to sell the property with the goal of creating a 200-home subdivision. SGA hired Doug Burnett as land use counsel and our client, Gulfstream Design Group, as the civil engineer to design the project.

Reprinted courtesy of Lewis Brisbois

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Red regulations folder next to notebook and laptop

Insurance Code section 790.03 sets forth sixteen (16) unfair claims settlement practices by insurers and sureties.

Call Me Maybe: California’s Fair Claims Settlement Practices Regulations

November 4, 2025 — Garret Murai - California Construction Law Blog

It’s not uncommon in construction claims for there to be Insurance and bond issues, whether it’s tendering a claim to your insurer, or claims against a license, payment, or performance bond. Insurance Code section 790.03 sets forth sixteen (16) unfair claims settlement practices by insurers and sureties including:

  1. Misrepresenting to claimants pertinent facts or insurance policy provisions relating to any coverages at issue.
  2. Failing to acknowledge and act reasonably promptly upon communications with respect to claims arising under insurance policies.
  3. Failing to adopt and implement reasonable standards for the prompt investigation and processing of claims arising under insurance policies.

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

Reprinted courtesy of Garret Murai, Nomos LLP

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Umbrella protecting house from dominoes

This post examines the differences between the US and UK jurisdictions and how those differences may contribute to different outcomes, and discuss what lessons perhaps can be gleaned from each other’s experience.

Anatomy of an Insurance Dispute

November 4, 2025 — Will S. Bennett - Saxe Doernberger & Vita, P.C.

In early 2025, we participated in a panel discussion about the similarities and differences in the process of resolving a disputed insurance claim. We were both so taken by the striking differences in the process and had such a good time learning about each other’s process that we decided to prepare this joint article to share with a wider audience.

Comparatively examining the anatomy of an insurance dispute in the US and the UK is an exercise in contrasts. In many ways, the two are strikingly opposite. Here, we examine, from start to finish, how the process differs in the two jurisdictions and how those differences may contribute to different outcomes, and discuss what lessons perhaps can be gleaned from each other’s experience.

Mr. Bennett may be contacted at WBennett@sdvlaw.com

Reprinted courtesy of Will S. Bennett, Saxe Doernberger & Vita, P.C.

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Injured worker

Agency furloughs more than 1,200 workers, halts routine inspections and training.

Federal Shutdown Idles Most OSHA Activity, Raising Safety and Compliance Concerns

November 4, 2025 — Bryan Gottlieb - Engineering News-Record

When federal funding expired Oct. 1, the U.S. Dept. of Labor triggered its contingency plan, effectively halting most oversight functions at the Occupational Safety and Health Administration.

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

Reprinted courtesy of Bryan Gottlieb, Engineering News-Record

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News on Cell

In Pillsbury's latest roundup, lab space real estate faces challenges, demand for data creates power brokers, the cost burden of sports stadiums, and more.

Real Estate & Construction News Roundup (10/29/25) – Office Market Bounces Back, Senate Passes ROAD to Housing Act, and CRE Embraces Blockchain

November 3, 2025 — Pillsbury's Construction & Real Estate Law Team - Gravel2Gavel Construction & Real Estate Law Blog

In our latest roundup, lab space real estate faces challenges, demand for data creates power brokers, the cost burden of sports stadiums, and more!

  • The U.S. office market is bouncing back, entering a growth cycle after years of fighting vacancies. (Joe Burns, Construction Dive)
  • Cities eager to tout privately financed sports stadiums are still spending big through tax breaks, land deals and public financing that shift costs back to taxpayers. (Vicky Uhland, Construction Dive)
  • The Senate passed a bipartisan bill on October 9 that aims to boost the nation’s housing supply with a wide range of methods. (Julie Strupp, Multifamily Dive)

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

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Conference room

The White and Williams Subrogation Department is proud to continue its partnership with NASP and looks forward to the continued educational opportunities, training, and networking that the Association provides to their team of professionals.

Chris Konzelmann Appointed to NASP Board of Directors

November 3, 2025 — White and Williams LLP

White and Williams LLP congratulates Chris Konzelmann, Partner and Chairman of the Subrogation Department, on his appointment to the National Association of Subrogation Professionals’ (NASP) Board of Directors.

In an announcement posted to LinkedIn, NASP stated, “These new board members bring diverse experience, leadership, and a shared vision for NASP’s future. Together, they will continue advancing NASP’s mission to provide education, advocacy, and community for subrogation professionals across all industries.”

Chris is a long-standing member of NASP and a frequent presenter at its Annual and Spring Conferences. He also regularly delivers webinars and training sessions for subrogation clients, helping them stay informed on legal developments and best practices in recovery strategy.

Reprinted courtesy of White and Williams LLP

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Trophy Award

Toll Brothers Wins Multiple Awards for Colorado Springs Parade of Homes

November 3, 2025 — Toll Brothers, Inc.

COLORADO SPRINGS, Colo., Oct. 21, 2025 (GLOBE NEWSWIRE) - Toll Brothers, Inc. (NYSE:TOL), the nation's leading builder of luxury homes, today announced the Company's Colorado Division was honored with six awards at the annual Colorado Springs Parade of Homes awards banquet, including Best Overall Home (priced from $790,000 to $850,000) for its Ridgway Contemporary home design at Toll Brothers at Gold Hill in Colorado Springs. Hosted by the Housing and Building Association of Colorado Springs, 16 builders showcased 32 homes across the Pikes Peak Region during the 71st Annual Parade of Homes.

About Toll Brothers
Toll Brothers, Inc., a Fortune 500 Company, is the nation's leading builder of luxury homes. The Company was founded 58 years ago in 1967 and became a public company in 1986. Its common stock is listed on the New York Stock Exchange under the symbol "TOL." The Company serves first-time, move-up, empty-nester, active-adult, and second-home buyers, as well as urban and suburban renters. Toll Brothers builds in over 60 markets in 24 states: Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Indiana, Maryland, Massachusetts, Michigan, Nevada, New Jersey, New York, North Carolina, Oregon, Pennsylvania, South Carolina, Tennessee, Texas, Utah, Virginia, and Washington, as well as in the District of Columbia. The Company operates its own architectural, engineering, mortgage, title, land development, smart home technology, and landscape subsidiaries. The Company also develops master-planned and golf course communities as well as operates its own lumber distribution, house component assembly, and manufacturing operations.

Intersection of freeways

Federal Report Provides Framework to Guide Infrastructure Investments

November 3, 2025 — Pam McFarland - Engineering News-Record

It’s well known that much of the nation’s critical infrastructure is in dire need of repair. According to the American Society of Civil Engineers, roads and transit across the U.S. are in poor condition, the consequences of poor upkeep and deferred maintenance. More than 40,000 bridges, for instance, are considered “structurally deficient,” yet they are crossed by motorists approximately 171.5 million times daily, according to ASCE.

Ms. McFarland may be contacted at mcfarlandp@enr.com

Reprinted courtesy of Pam McFarland, Engineering News-Record

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Miami Florida Palm Trees Buildings

Insurance Executives Become Billionaires in Risky Florida Market

November 3, 2025 — Dylan Sloan - Bloomberg

A trio of insurance executives have minted billion-dollar fortunes by betting big on a risk few others are willing to touch: Florida’s volatile property and casualty market.

First, it was husband-and-wife duo Bruce and Shannon Lucas, whose combined net worth briefly topped 10 figures in June after shares of their Slide Insurance Holdings Inc. soared 37% in its first three days of trading. On Wednesday, Trevor Burgess saw his wealth reach $1.2 billion as his St. Petersburg-based Neptune Insurance Holdings Inc., which calls itself the country’s largest private flood insurance provider, jumped 24% in its New York debut.

Reprinted courtesy of Dylan Sloan, Bloomberg

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Symposium

2025 North American Construction Law Symposium VII

November 3, 2025 — Beverley BevenFlorez – CDJ Staff

The Construction Lawyer Society of America (CLSA) presents a one-day advanced construction law series next month. Attendees “will have the opportunity of speaking before and learning from [their] elite peers in a small group setting.” This exclusive opportunity features “only 12 speaker slots for this event, which is designed to allow for personal interaction and discussion on all of the presentations, and 14 additional slots for observers/contributors.” The symposium concludes with a private cocktail party for attendees and guests.

December 4th, 2025
The Harvard Club of New York City
35 W 44th St.
New York, NY 10036

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Los Angeles Wildfire Victims Battle with Insurance Companies Over Smoke Damage

Homeowners whose properties did not burn down completely in the catastrophic Los Angeles wildfires in January are still battling with insurance companies so they can fix the damage and move back. NBC News’ Liz Kreutz reports on what some Los Angeles residents are going through in their struggle to move back into their homes.

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One Man Drowns, Another Electrocuted in Flash Floods

Authorities have identified the two men who died in flooded basements in New York City on Thursday afternoon, Eyewitness News ABC7NY reported.

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