Defend Now, Allocate Later? An Unresolved Tension in Colorado Construction Law
August 16, 2026 —
David McLain - Colorado Construction Litigation BlogFor decades, Colorado law has recognized an important distinction between the duty to defend and the duty to indemnify. The former ordinarily arises at the beginning of litigation; the latter generally cannot be determined until the underlying liability is known. That distinction makes intuitive sense. A defense that becomes due only after litigation concludes is not much of a defense.
But Colorado’s construction anti-indemnity statute, C.R.S. § 13-21-111.5(6), raises an interesting question about how that familiar rule operates in construction disputes. The statute expressly regulates contractual obligations not only to indemnify, but also to insure and defend, and it reflects a legislative policy that construction businesses should bear financial responsibility for their own negligence.
Those principles have developed along separate tracks. At some point, a Colorado appellate court may have to decide precisely how they fit together.
Read the full story...Reprinted courtesy of
David McLain, Higgins, Hopkins, McLain & Roswell, LLCMr. McLain may be contacted at
mclain@hhmrlaw.com
Wilke Fleury Attorneys Recognized by 2026 Northern California Super Lawyers and Rising Stars!
July 20, 2026 —
Wilke FleuryWilke Fleury is pleased to announce that 18 of the firm’s attorneys have been selected for inclusion on the 2026 Northern California Super Lawyers and Rising Stars lists.
The annual Super Lawyers and Rising Stars selections recognize attorneys across a wide range of practice areas. This year’s honorees reflect the depth of Wilke Fleury’s litigation, business, healthcare, employment, bankruptcy, appellate, real estate, construction, and estate planning practices.
Read the full story...Reprinted courtesy of
Wilke Fleury
Massachusetts Settlement Targets Mortgage-Backed “Homeowner Benefit” Agreements
April 08, 2026 —
A.J. S. Dhaliwal, Mehul N. Madia & Maxwell Earp-Thomas - SheppardOn March 11, Massachusetts Attorney General Andrea Joy Campbell announced a consent order with a real estate-related lender’s subsidiary, and affiliated individuals resolving allegations that the company violated the Massachusetts Consumer Protection Act by deceptively marketing mortgage-backed “Homeowner Benefit Agreements” to financially struggling homeowners.
According to the complaint, the company offered homeowners relatively small upfront cash payments, typically less than $1,500, in exchange for a 40-year exclusive right to act as the listing broker if the homeowner later sold the property. The Attorney General alleged that the agreements also triggered substantial payment obligations upon other transfers, including death or foreclosure, and that the transactions were secured by recorded mortgages that could interfere with refinancing, home-equity access, or the ability to sell the home. The complaint further alleged that the company marketed the product to vulnerable consumers searching for loans or public benefits while obscuring the true nature of the transaction.
Reprinted courtesy of
A.J. S. Dhaliwal, Sheppard,
Mehul N. Madia, Sheppard and
Maxwell Earp-Thomas, Sheppard
Mr. Dhaliwal may be contacted at adhaliwal@sheppard.com
Mr. Madia may be contacted at mmadia@sheppard.com
Mr. Earp-Thomas may be contacted at mearp-thomas@sheppard.com
Read the full story...
California Poised for the Most Significant Residential Construction Defect Reforms in Decades
September 01, 2026 —
Thomas D. Fama & Andrew J. Mallon - Wood Smith Henning BermanThe California Legislature is considering legislation that would dramatically alter the landscape of residential construction defect litigation. Assembly Bill 1903, currently pending before the Senate Judiciary Committee, proposes extensive amendments to California's Right to Repair Act (Civil Code sections 895-945.5) that would substantially strengthen procedural protections for builders while narrowing the scope of recoverable construction defect claims.
If enacted, the legislation would affect virtually every stage of a construction defect dispute- from the initial notice of claim through litigation and settlement- and would introduce an entirely new certification process for newly constructed condominium projects. This article details some of the most significant proposed changes.
Higher Burden for Construction Defect Plaintiffs
Perhaps the most consequential change is the bill's modification of the proof required to establish liability. current law generally requires a claimant to demonstrate the residence fails to satisfy one of the statutory performance standards established under the Right to Repair Act. AB1903 would instead require claimants to establish three separate elements:
- A violation of an applicable statutory performance standard;
- The violation caused appreciable, present, non-speculative physical damage to another building component; and
- The violation resulted from the original construction.
Reprinted courtesy of
Thomas D. Fama, Wood Smith Henning Berman and
Andrew J. Mallon, Wood Smith Henning Berman
Mr. Fama may be contacted at tfama@wshblaw.com
Mr. Mallon may be contacted at amallon@wshblaw.com
Read the full story...
Wadsworth v. Regional Rail Partners — Verified Statements of Claim Under the Colorado Public Works Act
August 25, 2026 —
Olivia Barden - Colorado Construction Litigation BlogEditor’s Note: Wadsworth Revisited
In August 2024, following the Colorado Court of Appeals’ decision in Ralph L. Wadsworth Construction Company, LLC v. Regional Rail Partners, we published
Colorado Court of Appeals’ Ruling Highlights Dangers of Excessive Public Works Claims.
At the time, the decision warranted a significant warning to contractors and subcontractors performing public work in Colorado. The Court of Appeals concluded that Wadsworth’s verified statement of claim improperly included unliquidated delay damages and that, because the claim was excessive, Wadsworth forfeited its right to recover the amounts included in the claim. We cautioned contractors to carefully scrutinize verified statements of claim and to avoid including unliquidated damages or amounts that were not yet due and payable.
The Colorado Supreme Court has now reversed that decision.
Read the full story...Reprinted courtesy of
Olivia Barden, Higgins, Hopkins, McLain & Roswell, LLC
Prefatory Contract Language Cannot Be Used to Create an Ambiguity with Operative Provisions
May 12, 2026 —
David Adelstein - Florida Construction Legal UpdatesContract drafting and interpretation matters.
A case dealt with the potential conflict with prefatory language in an agreement compared with operative provisions in the agreement. The trial court held that the operative provisions control. I discussed this case
here where the appellate court reversed based on the prefatory language.
But, through a motion for rehearing, the appellate court reconsidered its position and affirmed the trial court based on the operative provisions, mainly that the prefatory language cannot be used to create an ambiguity with operative provisions. Consider this explanation in affirming the trial court:
Because the trial court correctly found that the initial language in the contract was prefatory and could not be used to create an ambiguity in the remainder of the contract, we affirm the final judgment.
Read the full story...Reprinted courtesy of
David Adelstein, Kirwin NorrisMr. Adelstein may be contacted at
dma@kirwinnorris.com
Arizona Court Enters $323 Million Judgment Against ZOM Living Following Unanimous Jury Verdict
May 26, 2026 —
Gray Development GroupPHOENIX, May 19, 2026 /PRNewswire/ -- A Maricopa County court has entered a $323 million compensatory damages judgment in favor of Gray Development Group against ZOM Holding Inc., doing business as ZOM Living, following a 12-day trial, a unanimous jury verdict and post-trial proceedings related to a proposed business transaction.
The jury found ZOM liable on claims of breach of contract and breach of the implied covenant of good faith and fair dealing stemming from a proposed joint venture tied to a planned pipeline of luxury multifamily and commercial projects in Phoenix and Scottsdale.
The lawsuit centered on a 13-project, $1.4 billion development pipeline originated and planned by Gray Development Group over more than a decade. In 2019, Gray invited Florida-based ZOM to participate in a joint venture involving the completion of five projects, which would have marked ZOM's entry into the Arizona market.
According to court findings presented at trial, the companies entered into a mutual confidentiality and non-circumvention agreement before Gray shared extensive sensitive and proprietary information related to the projects, including planning, market analysis, costs, financial data, local business relationships and operational strategies developed by Gray over decades in Arizona.
Evidence presented during trial showed that over a 10-month period while under contract, ZOM made hundreds of requests for confidential project and market information before circumventing Gray and pursuing the projects independently, ultimately displacing Gray from projects it spent years planning and developing.
ZOM Living, headquartered in Orlando, develops multifamily and senior housing communities across the United States and operates regional offices in Boston, Dallas, Fort Lauderdale, Nashville, Phoenix, and Raleigh. ZOM is owned by Timeless Investments, the Amsterdam-based family office of Dutch businessman Hans van Veggel, which acquired the company in 1997.
About Gray Development Group
Gray Development Group was founded by architect Bruce Gray in 1991. The Phoenix-based company was the top-ranked multifamily developer in Arizona for more than a decade. The company designed and developed more than 15,000 apartment and condominium units throughout metropolitan Phoenix. Two Gray-designed developments — a Tempe midrise and a San Diego high-rise — received National Apartment Community of the Year awards.
<
Filing Motion to Increase Lien Transfer Bond (Before Trial Court Loses Jurisdiction Over Final Judgment)Under Privette Doctrine, A Landowner Delegates All Responsibility For Workplace Safety to its Independent Contractor, and therefore Owes No Duty to Remedy or Adopt Measures to Protect Against Known HazardsFlorida Condo Collapse Victims Reach $1 Billion SettlementEven Fraud in the Inducement is Tough in ConstructionBenchmark Litigation Recognizes Andrea DeField Among Nation’s Top Young LitigatorsRetired Judge Claims Asbestos in Courthouse gave him CancerWhat Construction Attorneys Do and When Contractors Need ThemYes, Indeedy. Competitive Bidding Not Required for School District Lease-LeasebacksWSHB Partner Sheila Fix Selected as Los Angeles Business Journal's Woman of Influence in Construction, Engineering, and ArchitectureGoogle Advances Green Goal With AES Deal for Carbon-Free PowerContractor Definition Central to Coverage DisputeConstruction and Green Building RoundupCongress Considers Pandemic Risk Insurance Act to Address COVID-19 Business Interruptions LossesTrial Date Discussed for Las Vegas HOA Takeover CaseA New Lawsuit Might Change the Real Estate Industry ForeverHow Philadelphia I-95 Span Destroyed by Fire Reopened in Just 12 DaysImportant Insurance Alert for Out-of-State Contractors Assisting in Florida Recovery Efforts!Can I Record a Lis Pendens in Arizona if the Lawsuit is filed Another Jurisdiction?What Should Business Owners Do If a Customer Won’t PayPublic-Employee Union Fees, Water Wars Are Key in High Court RulingsCross-Office Team Secures Summary Judgment Win in Negligence Action with $2M DemandNewmeyer Dillion Announces Jessica Garland as Its Newest PartnerEleventh Circuit Vacates District Court Decision Finding No Duty to Defend Faulty Workmanship ClaimsTexas Voids Out-of-State Forum and Choice of Law Clauses in Construction ContractsThe Hidden Dangers of Construction Defect Litigation: A Redux24th Annual West Coast Casualty Construction Defect Seminar A Success Nobody Knows What Lies Beneath New York CityBertha – The Tunnel is Finished, but Her Legacy ContinuesFive Issues to Consider in Government Contracting (Or Any Contracting!)Contract Disputes Act and Jurisdictional RequirementsCOVID-19 Response: Recent Executive Orders Present Opportunities for Businesses Seeking Regulatory and Enforcement Relief and Expedited Project DevelopmentWendel Rosen’s Construction Practice Group Receives First Tier RankingMediation is (Almost) Always Worth a ShotConn. Appellate Court Overturns Jury Verdict, Holding Plaintiff’s Sole Remedy for Injuries Arising From Open Manhole Was State’s Highway Defect StatuteTennessee Court of Appeals Holds Defendant Has the Burden of Offering Alternative Measure of Damages to Prove that Plaintiff’s Measure of Damages is UnreasonableNapa Quake Seen Costing Up to $4 Billion as Wineries ShutSlump in U.S. Housing Starts Led by Multifamily: EconomyConstruction Problems May Delay Bay BridgeToll Brothers to Acquire Shapell for $1.6 BillionException to Watercraft Exclusion Does Not ApplyContractual Fee-Shifting in Litigation: Who Pays the Price?Hunton Insurance Coverage Attorneys Top Benchmark Litigation 2026 GuideFourth Circuit Finds Insurer Reservation of Rights Letters Inadequate to Preserve Coverage Defenses Under South Carolina LawBoston-area Asbestos-Abatement Firms Face Wage and Safety ComplaintsPlanned Everglades Reservoir at Center of Spat Between Fla.'s Gov.-Elect, Water Management District$24 Million Verdict Against Material Supplier Overturned Where Plaintiff Failed To Prove Supplier’s Negligence Or Breach Of Contract Caused A SB800 ViolationLaGuardia Airport Is a Mess. An Engineer-Turned-Fund Manager Has a FixJust Because You Can, Doesn’t Mean You Should. The “Retained Control” Exception to the Privette DoctrineLaw Firm's Business Income, Civil Authority Claim Due to Hurricanes Survives Insurer's Motion for Summary JudgmentCourt’s Ruling on SB800 “Surprising to Some”Infrastructure Money Comes With Labor Law Strings AttachedHousing to Top Capital Spending in Next U.S. Growth Leg: EconomyChina Allows Construction to Resume of High-Rise Stopped for Last Decade15 Wilke Fleury Lawyers Recognized in 2020 Northern California Super Lawyers and Rising Stars ListsAs the Term Winds Down, Several Important Regulatory Cases Await the U.S. Supreme CourtAcquisition, Development, and Construction Lending Conditions EaseSales of New U.S. Homes Fell in February to Five-Month LowUser Interface With a Building – Interview with Esa Halmetoja of Senate PropertiesThe Problem with Bunting with Two StrikesNewmeyer Dillion Named One of "The Best Places To Work In Orange County" by Orange County Business JournalConstruction Warranties: Have You Seen Me Lately?Dorian Lashes East Canada, Then Weakens Heading Out to Sea
