Actual Controversy Without Actual Exhaustion: California Supreme Court Allows Declaratory Relief and Bad Faith Claims Against Excess Insurers
August 24, 2026 —
Kyle A. Rudolph - Saxe Doernberger & Vita, P.C.California courts were previously split on the issue of whether an insured may bring declaratory relief claims against excess insurers prior to the exhaustion of underlying insurance. Some California courts held that the actual exhaustion of underlying insurance was necessary, whereas other courts allowed for these types of claims to proceed.[
1]
Recently, the California Supreme Court addressed this split of authority and, in doing so, handed down a significant win for policyholders. In Fox Paine & Company, LLC, et al. v. Twin City Fire Insurance Company et al., the Court held that insureds may proceed with bringing forth viable declaratory relief and bad faith claims against excess insurers prior to the exhaustion of underlying insurance.[
2] A summary of the Court’s opinion is provided below.
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Kyle A. Rudolph, Saxe Doernberger & Vita, P.C.Mr. Rudolph may be contacted at
KRudolph@sdvlaw.com
Steel Cooling: Steel Costs Steadily Decline After Pandemic Price Shock
May 12, 2026 —
Construction ExecutiveSteel prices have continued trending downward after several years of volatility, according to Gordian’s latest analysis based on RSMeans Data. After dramatic spikes during the pandemic-era supply disruptions, the market has gradually stabilized as supply chains improve and demand softens in some construction segments. However, selective volatility and tariff uncertainty continue to influence pricing across the sector.
Key findings from the report include:
- Steel prices declining: The national average price of structural steel fell to about $2,343.93 per ton in January 2026, down 5.38% from the previous quarter and 7.18% year over year.
- Longer-term price correction: Steel costs have been trending downward since 2024 after earlier volatility driven by inflation, supply shortages and global demand swings.
Reprinted courtesy of
Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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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 LLPFlorida'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.
AI Data Centers Become City-Scale Infrastructure, Prompting New Industry Playbook
August 11, 2026 —
Bryan Gottlieb - Engineering News-RecordAI data centers are no longer just buildings. They are increasingly reaching power-demand levels more commonly associated with municipalities, prompting industry groups to launch a new framework they say is needed to keep pace with rapidly changing power, cooling and reliability requirements.
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Bryan Gottlieb, Engineering News-RecordMr. Gottlieb may be contacted at
gottliebb@enr.com
Insured Does Not Prevail on Summary Judgment Motion Invoking Ensuing Loss Provision
May 05, 2026 —
Tred R. Eyerly - Insurance Law HawaiiThe court denied the insured’s motion for summary judgment finding genuine issues of fact regarding implication of the policy’s ensuing loss provision. Stella Prop. Dev.. & Event Productions, LLC v. Auto-Owners Ins. Co., 2026 U.S. Dist. LEXIS 15854 (W.D. Pa. Jan. 28, 2026).
Stella owned a cultural center that was insured under a commercial property all-risk policy issued by Auto-Owners. A windstorm with gusts of 65 miles per hour struck the Center causing damage. The Center’s inspector found extensive wind damage on nearly all facets of the roof. Further, the inspector found the existing organic shingles were in “very poor condition” and were “defective, discontinued, and no longer available.” The estimated cost of repairs to the roof was $108,010.52.
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Tred R. Eyerly, Damon Key Leong Kupchak HastertMr. Eyerly may be contacted at
te@hawaiilawyer.com
GRSM Ranked Among Top 5 Construction Law Firms by Construction Executive
September 21, 2026 —
Gordon Rees Scully MansukhaniGordon Rees Scully Mansukhani has been ranked the No. 5 construction law firm in the nation by Construction Executive in the magazine’s 2026 ranking of The Top 50 Construction Law Firms™.
“Being named in the top five underscores the talent, experience, and nationwide capabilities of our construction team,” said Allen Estes III and Angela Richie, Chairs of GRSM’s Construction practice. “We are honored to serve as trusted counsel to clients across the construction industry and remain committed to delivering strategic solutions that help them achieve their business and project objectives.”
In addition to this ranking, GRSM Construction practice group Co-Chairs Allen Estes and Angela Richie were featured in “Executive Insights 2026: Leaders in Construction Law,” where they shared insights on key risks to consider before signing construction contracts and discussed strategies for managing material cost volatility, supply-chain disruptions, and project delays.
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Gordon Rees Scully Mansukhani
Lost in Translation: AEC Tech’s Missing Role
May 12, 2026 —
Aarni Heiskanen - AEC BusinessI once visited a construction site where the contractor’s headquarters had commissioned a tech company to build an on-site quality-inspection application. The developer had admitted to the site engineer that they had never set foot on a construction site before. The engineer showed me what he was actually using: his own phone camera and an Excel sheet. The new app did not map to how work actually happened on site.
This is not an isolated story. The vendor builds something technically coherent but operationally disconnected. The client, somewhere up the chain, had fallen in love with the idea of the solution before anyone had built an honest business case for it.
The result is a tool that gets demonstrated at a board meeting but isn’t used in the field.
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Aarni Heiskanen, AEC BusinessMr. Heiskanen may be contacted at
aec-business@aepartners.fi
Building in Arizona’s Data Center Boom: How Federal Executive Orders, State Regulation, and National-Security Policy Are Reshaping the Rules for Developers
June 02, 2026 —
Ryan J. Regula - Snell & WilmerDevelopers and practitioners evaluating data center projects in Arizona face a regulatory environment shifting on three fronts simultaneously. Federal executive orders are opening new land, streamlining permitting, and channeling financial incentives toward qualifying projects — but they are not preempting the state and local rules that most directly affect project economics. A carve-out in the December 2025 Artificial Intelligence (AI) Framework Executive Order preserves Arizona’s authority over data center infrastructure, meaning the Arizona Corporation Commission’s (ACC) rate-classification docket, municipal zoning restrictions, water-use ordinances, and pending grid cost-allocation legislation remain the binding constraints on project feasibility. Understanding where federal tailwinds end and state and local headwinds begin is essential for any developer sizing risk or selecting sites in the state.
The Federal Landscape: An Interlocking Framework of Executive Orders
Five interlocking executive orders are accelerating data center development nationally, but none overrides Arizona’s authority over siting energy, or infrastructure.
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Ryan J. Regula, Snell & WilmerMr. Regula may be contacted at
rregula@swlaw.com
