EVERGREEN COLORADO CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

No Bad Faith Despite Insurer’s Appraisal Award Exceeding Initial Payment

August 03, 2026 — Tred R. Eyerly - Insurance Law Hawaii
The federal district court granted the insurer’s motion for summary judgment, finding no bad faith despite the appraisal award exceeding the amount the insurer initially paid. Jazi Kat 4659 Rockridge LLC, et al. v. Travelers Cas. Ins. Co. of Am., et al., 2026 U.S. Dist. LEXIS 105634 (D. Ariz. May 13, 2026). Plaintiffs sued Travelers for breach of contract and bad faith, alleging that Travelers failed to pay money plaintiffs were owed under the policy. Plaintiffs held a commercial property policy for two properties. A fire destroyed one of the properties. Travelers adjusted the claim and issued two payments. Plaintiffs disagreed with the amount of the payments and demanded an appraisal. Travelers agreed to the appraisal. Read the full story...
Reprinted courtesy of Tred R. Eyerly, Damon Key Leong Kupchak Hastert
Mr. Eyerly may be contacted at te@hawaiilawyer.com

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Settlement Agreements and Contracts Require a Meeting of the Minds

July 20, 2026 — David Adelstein - Florida Construction Legal Updates
A settlement agreement does not need to be executed for it to be enforceable as long as there was a MEETING OF THE MINDS. The same rings true for any contract regardless of whether the contract is signed – THERE NEEDS TO BE A MEETING OF THE MINDS. In a recent case dealing with the settlement agreement on a construction lien, the essential settlement terms (money and mutual release) were memorialized in an e-mail exchange between the parties (owner and subcontractor). The settlement required the owner to pay the principal amount plus some attorney’s fees and then a mutual general release would be prepared. In response to the confirmatory email, the owner sent a check, which the subcontractor deposited, but the owner refused to sign the release signed and sent by the subcontractor. The owner further claimed it doesn’t need to pay the attorney’s fees because the lien amount was paid in full. The subcontractor sued arguing the owner breached the terms of the settlement. The appellate court agreed. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Doctrine of Substantial Performance When It Comes to Payment

July 27, 2026 — David Adelstein - Florida Construction Legal Updates
A recent non-construction case touches upon the doctrine of substantial performance when it comes to payment. In this case, a club was to make two payments to secure a rapper’s attendance. The first payment was made. The second payment was made but was a few hundred dollars short of the agreed amount. The rapper did not show up. The club claimed it substantially performed its obligations. At first glance, the argument makes sense because the second payment fell only a few hundred dollars short. But that wasn’t the case when it comes to pre-commencement payment obligations:

Substantial performance applies only when the variance from the contract terms “is inadvertent or unintentional and unimportant so that the work actually performed is substantially what was called for in the contract.” However, when one party agrees to pay the other on or before a specific date, time is of the essence, and the payor is required to pay the payee on or before that date. “There is almost always no such thing as ‘substantial performance’ of payment between commercial parties when the duty is simply the general one to pay. Payment is either made in the amount and on the date due, or it is not.”

Big Gate Records, LLC v. Washington, 51 Fla.L.Weekly D1281a (Fla. 2nd DCA 2026) (internal citations omitted).

Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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Risk Reset: Concerns Top of Mind for Top Construction Law Firms

September 28, 2026 — David McMillin - Construction Executive
In the summer of 2025, contractors were consumed by one major issue: tariffs. Owners, builders and suppliers were trying to understand how shifting trade policy would affect bid pricing and ongoing projects. While those concerns have eased after a Supreme Court ruling, some of the industry’s top legal experts—all of whom practice at some of CE’s Top 50 Construction Law Firms—point to a different set of worries that are keeping their clients up at night and keeping their offices busy. Inflation is not fading away, creating continued price challenges. Artificial intelligence is moving at a breakneck pace, offering potential time-saving benefits paired with major liability concerns. The federal government continues to make surprising policy changes, and contractors remain focused on managing financial risk across increasingly complex projects. Reprinted courtesy of David McMillin, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved. Read the full story...

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Texas Adopts New Procedural Rules for Summary Judgment Motions: What You Need To Know

July 13, 2026 — Conor G. Bateman & Marsha Cotton - Snell & Wilmer
On March 1, 2026, sweeping amendments to Texas Rule of Civil Procedure 166a took effect, fundamentally changing how Texas courts handle summary judgment motions — from filing and briefing through disposition. Whether representing a plaintiff or defendant, Texas litigants and attorneys must understand these new rules and their impact on case strategy and timelines. These procedural changes carry particular significance for construction litigants. Background: The Prior Rule Texas summary judgment practice has long diverged from the federal model. The Texas Rules of Civil Procedure recognize two types of summary judgment motions: (1) the traditional motion for summary judgment, and (2) the “no-evidence” motion for summary judgment. The no-evidence motion — unique to Texas — may be filed only after adequate time for discovery has passed. No bright-line rule governs that determination; it depends on the unique circumstances of each case. Reprinted courtesy of Conor G. Bateman, Snell & Wilmer and Marsha Cotton, Snell & Wilmer Mr. Bateman may be contacted at cbateman@swlaw.com Ms. Cotton may be contacted at mcotton@swlaw.com Read the full story...

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Powering Data Centers in a Moving Regulatory Landscape: Positioning Deals Before FERC’s Next Move

April 27, 2026 — Stephen J. Humes, Alicia M. McKnight & Andrew H. Jacobs - Gravel2Gavel Construction & Real Estate Law Blog
The explosive growth of data‑center load—driven by artificial intelligence, cloud computing and the expansion of digital infrastructure across industries—has forced U.S. energy regulators into unfamiliar territory. Nowhere is this more evident than at the Federal Energy Regulatory Commission (FERC), which is actively considering how large, concentrated loads can be powered without compromising grid reliability or shifting costs to other customers. FERC has not yet issued a standalone rulemaking on data centers. But make no mistake, the regulatory framework is quietly and deliberately being built. For developers, hyperscalers, utilities and investors, the period before FERC finalizes its next round of decisions represents the critical window to crystallize advocacy and structure transactions in ways that anticipate regulatory change. Reprinted courtesy of Stephen J. Humes, Pillsbury, Alicia M. McKnight, Pillsbury and Andrew H. Jacobs, Pillsbury Mr. Humes may be contacted at stephen.humes@pillsburylaw.com Ms. McKnight may be contacted at alicia.mcknight@pillsburylaw.com Mr. Jacobs may be contacted at andrew.jacobs@pillsburylaw.com Read the full story...

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The Deadline to File Suit on a Public Works Payment Payment Bond is Triggered by a Claimant’s Work on a Project Not by a Claimant’s Work Under a Contract

June 02, 2026 — Garret D. Murai - California Construction Law Blog
California law requires that prime contractors furnish a payment bond – providing for payment to lower-tiered subcontractors and suppliers – on state and local public works projects with a value in excess of $25,000. There are three conditions that must be satisfied when a claimant makes a claim against a payment bond on a public works project in California:

1. First, generally, the claimant must have served a preliminary notice, unless the claimant is a first-tier subcontractor or supplier;
2. The claimant must have “ceased to provide work” on the project; and
3. The claimant must file suit against the payment bond no later than six (6) months after the period in which a stop payment notice must be given or, in other words, the earlier of 270 days after completion of the public works project or 210 days after a notice of completion or cessation was recorded on a public works project.

In Tarlton & Sons, Inc. v. Great American Insurance Company, 111 Cal.App.5th 376 (2025), the 2nd District Court of Appeal examined whether a subcontractor timely filed a claim against a payment bond when a prime contractor was terminated and replaced by another prime contractor who the subcontractor continued to perform work for. Read the full story...
Reprinted courtesy of Garret D. Murai, Nomos LLP
Mr. Murai may be contacted at gmurai@nomosllp.com

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Lienor Dealing With “Show Cause” Summons by Condominium Unit Owner

September 01, 2026 — David Adelstein - Florida Construction Legal Updates
One of the statutory vehicles to shorten a construction lienor’s statute of limitations to foreclose on a construction lien is through a “show cause” summons that essentially requires the lienor to foreclose on the lien within 20 days from receipt of the “show cause” summons. This is a statutory procedure under Florida’s Lien Law in Fla. Stat. s. 713.21(4). If a lienor receives a “show cause” summons and lawsuit, the lienor should, without delay, counterclaim or file a separate lien foreclosure lawsuit within the 20-day period without exception. This is provided the lienor wants to move forward with its lien. If a lienor does not, the lien will be discharged of record. If you are a lienor and receive a “show cause” summons, please immediately consult with construction counsel that can best advise you and perfect your lien rights. Read the full story...
Reprinted courtesy of David Adelstein, Kirwin Norris
Mr. Adelstein may be contacted at dma@kirwinnorris.com

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