FALL CREEK WISCONSIN CONSTRUCTION EXPERT WITNESS
DIRECTORY AND CAPABILITIES

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.” Read the full story...
Reprinted courtesy of Ali Jamwal, SDV Fenchurch
Mr. Jamwal may be contacted at ali.jamwal@sdvfenchurch.us

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The “Pay When Paid” Clause in California Construction—Strategies as the Battle Continues

August 03, 2026 — William L. Porter - Porter Law Group
It is well known in California Construction circles that the “Pay If Paid” clause is illegal in this state. There is a great distinction, though, between this clause and a similar clause, known as a “Pay When Paid” clause. A pay if paid clause allows a contractor to tell a subcontractor that if the contractor is unpaid for the subcontractor’s work, then the contractor has no legal obligation to pay the subcontractor, ever. For a great variety of reasons, the California Supreme Court, in the case of Wm. R. Clarke Corp v. Safeco Ins. Co. of America (1997) 15 Cal.4th 882, declared this type of clause illegal in California Construction. Although the pay if paid clause is illegal in California, the pay when paid clause is still perfectly legal and is found in many subcontracts that contractors issue to their subcontractors. The pay when paid clause allows a contractor to delay paying its subcontractors until the dispute between the contractor and the property owner over payment has been resolved and the contractor is paid by the property owner. Although seemingly reasonable (since it merely delays payment until the contractor is paid by the owner, thereby providing a funding source to pay subcontractors), significant problems still arise. Read the full story...
Reprinted courtesy of William L. Porter, Porter Law Group
Mr. Porter may be contacted at bporter@porterlaw.com

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What Massachusetts Contractors and Developers Can Learn from Cannistraro v. Columbia Construction

July 13, 2026 — Anthony LaPlaca & Luke Marston - The Construction Seyt
Introduction On June 26, 2026 the Massachusetts Supreme Judicial Court issued its decision in J.C. Cannistraro, LLC v. Columbia Construction Co.—a holding that sits at the intersection of Prompt Pay Act compliance and the Massachusetts Arbitration Act.[1] Most already know that the Massachusetts Prompt Pay Act (PPA) imposes strict timing and certification requirements for rejecting payment applications and proposed change orders on projects valued at $3 million or more. Most notably, the PPA requires the paying party to give the payee written notice of its approval or rejection of progress applications and proposed changes within 15 days of receipt, which notice must include a “factual and contractual basis for the rejection” and must be “certified as made in good faith.”[2] In the absence of a timely certified notice, payment is “deemed to be approved” unless the payor properly rejects payment before it comes due.[3] Reprinted courtesy of Anthony LaPlaca, Seyfarth Shaw LLP and Luke Marston, Seyfarth Shaw LLP Mr. LaPlaca may be contacted at alaplaca@seyfarth.com Mr. Marston may be contacted at lmarston@seyfarth.com Read the full story...

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Structural Concerns Force Emergency Closure of Maryland Office Building

August 16, 2026 — Jim Parsons - Engineering News-Record
A 10-story Baltimore-area office building was evacuated after an underground parking structure was compromised during construction work. Read the full story...
Reprinted courtesy of Jim Parsons, Engineering News-Record
ENR may be contacted at enr@enr.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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Managing Rising Costs and Shifting Legal Risk for Florida High-Rise and Condominium Projects

May 05, 2026 — Stephen Hauptman - Ball Janik LLP
Florida's construction defect landscape is experiencing a major shift. The convergence of material and labor cost volatility, regulatory tightening, and increasingly complex litigation strategies is forcing associations, developers, and their counsel to rethink how they approach risk management and dispute resolution. For those managing large-scale condo and high-rise projects, the stakes have never been higher. The Cost Volatility Trap Construction material prices rose at a "staggering" 12.6% annualized rate during the first two months of 2026, according to recent industry analysis. Tariff impacts are projected to lead to more increases of 5.4% to 6.8%, depending on property type. For associations facing construction defect claims, this volatility creates a cascading problem: repair scopes defined two years ago are now dramatically underpriced, and damage calculations that appeared reasonable at discovery are obsolete by the time of settlement. Courts and mediators are increasingly scrutinizing how cost estimates were developed and whether they account for existing market circumstances. Associations must now commission updated repair assessments more frequently, a practice that increases investigation costs but strengthens the credibility of damage claims. Conversely, defendants are weaponizing cost inflation as a defense, arguing that claimed damages are speculative or inflated. The practical result: repair sequencing and phasing strategies have become critical litigation tools. Associations that can demonstrate a rational, cost-effective repair plan tied to current market data are more favorably placed in settlement negotiations. Regulatory Pressure and Deliberate Timing Florida's 2026 condo compliance regime has significantly changed the defect claims landscape. Elevated transparency requirements, stricter reserve funding mandates, and tightened building safety inspection protocols mean that associations now face dual pressures: Comply with new regulations while simultaneously handling construction defect exposure. This regulatory environment is changing investigation and documentation strategy. Associations that delay defect investigation to avoid triggering reserve funding obligations or disclosure requirements are taking on considerable legal risk. Recent case law such as the Third District Court of Appeal's reaffirmation of Chapter 558's pre-suit mediation requirements, underscores Florida's intent to resolve disputes early. Associations that move deliberately and record carefully during the pre-suit phase gain leverage in mediation and reduce the risk of expensive litigation. Timing also intersects with repair sequencing. Associations must now balance the urgency of compliance inspections against the strategic advantage of phased repairs. Some associations are using compliance deadlines as a forcing mechanism to accelerate settlement discussions, while others are sequencing repairs to demonstrate good-faith remediation efforts before litigation commences. The Emerging Risk Transfer Challenge As construction defect claims grow more complex and costly, the traditional risk transfer systems, such as design-build warranties, contractor bonds, and insurance, are proving inadequate. Developers and general contractors are increasingly shifting risk to subcontractors and material suppliers, fragmenting liability and complicating recovery efforts for associations. Permitting and approval friction is also creating new litigation pressure points. Delays in municipal approvals, changes to building code interpretations, and disputes over remedial work compliance continue to spawn collateral claims that go beyond the original defect. Associations must now anticipate not only defect liability but also regulatory compliance disputes with municipalities, creating a dual-front legal challenge. For large communities, this means reconsidering the entire risk architecture. Insurance carriers are tightening coverage, and traditional indemnification chains are breaking down. Forward-thinking associations are engaging counsel earlier in the development process to negotiate clearer risk allocation provisions and more robust insurance requirements. Taking a Data-Driven Approach Managing rising costs and shifting legal risk in Florida's high-rise and condo market requires a more sophisticated, data-driven approach. Associations must commission frequent cost updates, move deliberately through pre-suit investigation and mediation, and challenge traditional assumptions about risk transfer. Developers and their counsel should view regulatory compliance not as a burden but as an opportunity to demonstrate good-faith risk management and strengthen settlement positioning. The firms and associations that succeed in 2026 will be those that treat cost volatility, regulatory change, and litigation strategy not as separate challenges but as linked elements of a coherent risk management framework. Stephen Hauptman is special counsel in Ball Janik LLP’s Fort Lauderdale office. He may be reached at shauptman@balljanik.com.

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Delay Matters: Florida’s Fourth DCA Reverses Hurricane Irma Dismissal

June 08, 2026 — Andrea DeField, Machaella Reisman & Cary D. Steklof - Hunton Insurance Recovery Blog
The mantra “delay, deny, defend” is frequently referenced in discussions of insurance claims handling, though insurers will invariably disavow these tactics. While it would be facially improper for an insurer to delay a coverage decision to gain a tactical advantage, empirical examples nonetheless exist. This very dynamic was addressed by Florida’s Fourth District Court of Appeals when it handed policyholders a win in Hypoluxo Mariner’s Cay Condo. Assoc’n, Inc. v. Underwriters at Lloyd’s London, No. 4D2024‑2250 (Fla. 4th DCA Apr. 1, 2026), reversing a trial court order dismissing a condominium association’s Hurricane Irma coverage lawsuit against its property insurer. Delay to Run the Statute of Limitations Following Hurricane Irma, a condominium association suffered roof and exterior envelope damage, reported an insurance claim, and submitted a sworn proof of loss to its property insurer in compliance with Florida Statute § 627.70132 (2020). The statute establishes a timeframe within which a policyholder must submit a claim for hurricane damage. Reprinted courtesy of Andrea DeField, Hunton Andrews Kurth LLP, Machaella Reisman, Hunton Andrews Kurth LLP and Cary D. Steklof, Hunton Andrews Kurth LLP Ms. DeField may be contacted at adefield@hunton.com Ms. Reisman may be contacted at reismanm@hunton.com Mr. Steklof may be contacted at csteklof@hunton.com Read the full story...

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Utah’s Emerging Framework for Responsible Data Center Development

September 08, 2026 — Denise A. Dragoo & Josh Miller - Snell & Wilmer
Utah is establishing itself as one of the nation’s most attractive jurisdictions for large-scale data center development, with a structured, defensible regulatory pathway that gives developers and investors the clarity needed to deploy capital at scale. The cornerstone is Executive Order 2026-03, “Establishing a Higher Bar for Data Center Development in Utah,” signed by Governor Spencer J. Cox on May 29, 2026. The Executive Order creates an actionable compliance framework letting developers demonstrate stewardship across water, air quality, energy, wildlife, and community engagement – reducing regulatory and reputational risk. Recent enactments on energy self-supply and water rights operationalize these principles, while a few counties have adopted short-term local moratoria to update zoning; understanding how these interact with the state framework matters for site selection. Reprinted courtesy of Denise A. Dragoo, Snell & Wilmer and Josh Miller, Snell & Wilmer Ms. Dragoo may be contacted at ddragoo@swlaw.com Mr. Miller may be contacted at jmiller@swlaw.com Read the full story...

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