Function Over Form: Eighth Circuit Narrows Application of Cosmetic Damage Exclusion
October 12, 2026 —
Ali Jamwal - SDV FenchurchIntroduction
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.”
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Ali Jamwal, SDV FenchurchMr. Jamwal may be contacted at
ali.jamwal@sdvfenchurch.us
New York Construction: New Rules for Reporting and Cancellation Pay
October 12, 2026 —
Meghan Douris & Howard Wexler - The Construction SeytEffective December 8, 2026, covered New York construction employers generally must provide up to four hours of reporting pay when an employee reports for a scheduled shift but receives no work, and two hours of pay when a scheduled shift is canceled with less than 12 hours’ notice. Separate requirements apply to certain prevailing-wage construction projects. Before the law takes effect, contractors should identify which projects and employees are covered and make sure their scheduling, payroll, labor, and contract practices are ready.
What the New Law Requires
New York’s Construction Reporting Pay Act introduces two principal compensation requirements for covered construction employees:
- Reporting pay: An employee who reports for a scheduled shift but is not provided work generally must receive up to four hours of pay.
- Shift-cancellation pay: An employee generally must receive two hours of pay when a scheduled shift is canceled with less than 12 hours’ notice.
Reprinted courtesy of
Meghan Douris, Seyfarth and
Howard Wexler, Seyfarth
Ms. Douris may be contacted at mdouris@seyfarth.com
Mr. Wexler may be contacted at hwexler@seyfarth.com
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Beyond the Storm: How Non-Hurricane Catastrophes Expose Florida’s Construction Defect Blind Spot
August 11, 2026 —
Franchesco “Frank” Soto & Amanda L. Gonzalez - Ball JanikOn June 8, 2026, a magnitude 6.1 earthquake struck the Gulf near the coast of Cuba, the largest instrumentally recorded earthquake in the Gulf since seismic monitoring began in 1950. Buildings swayed, offices were evacuated, and many residents along the east coast of Florida, from Miami-Dade to Jacksonville, felt the ground shake. Although no tsunami followed and reported structural damage was limited, this event exposed a blind spot that Florida property owners, developers, and their counsel cannot afford to ignore: catastrophic stress on Florida buildings does not always come in the form of a named storm.
Florida property owners have grown accustomed to preparing for wind, storm surge, floods, and torrential rain. Far less attention is paid to earthquakes, sinkholes, tornadoes, hail, and non-tropical flooding, each of which can place unexpected stress on buildings not designed with those forces top of mind and can trigger deficiencies in buildings that were not otherwise known, expose design failures, and create an urgency for both insurance claims and subsequent litigation.
Non-Hurricane Triggers of Latent Defects
Seismic activity is the clearest example. Florida’s building code accounts for wind loads, not seismic forces, meaning even a moderate earthquake can reveal weaknesses in curtain wall systems, structural connections, or foundations that were already marginal. Sinkholes, driven by Florida’s karst limestone geology, remain a persistent threat, particularly in Central Florida, where subsurface voids can undermine foundations without warning. Non-tropical flooding, like the record rainfall that flooded South Florida in June 2024, can intrude through building envelopes and waterproofing systems that were never stress-tested for such volumes of water. Tornadoes and hail, while more localized, can cause roofing and envelope failures that mimic, mask, or trigger latent construction defects.
The Litigation and Coverage Disputes That Follow
When one of these events strikes a building already carrying undisclosed or unresolved construction defects, the resulting disputes become considerably more complex. Property owners and associations must move quickly to document existing conditions and distinguish damage caused by the event from pre-existing defective construction, the same causation issue that arises in the hurricane context under Chapter 558, but often without the benefit of established precedent or adjuster experience with these less common events.
Insurance coverage disputes frequently follow close behind. Carriers may dispute whether an earthquake, flood, or other peril is covered at all, particularly where policies contain earthquake or flood exclusions requiring separate endorsements, or anti-concurrent causation language that can bar coverage entirely when a covered peril combines with an uncovered one, such as pre-existing defective construction, to cause a loss. Sinkhole claims carry their own statutory framework under Florida law, requiring specific testing protocols and reporting before a claim is compensable. Developers and contractors, in turn, may find themselves defending Chapter 558 claims while simultaneously litigating with their own carriers over defense and indemnity obligations.
Practical Risk Mitigation Strategies
Property owners, associations, and developers can take several concrete steps to reduce their exposure. First, maintain thorough documentation, including engineering reports, maintenance logs, and photographs, well before any event occurs. This documentation is often the deciding factor in causation disputes. Second, engage structural engineers and consultants immediately following any seismic event, unusual flooding, or storm damage, regardless of whether a hurricane is involved. Prompt inspection preserves evidence and can help prevent inadvertent waiver of construction defect claims. Third, review insurance policies regularly with counsel or a broker to confirm earthquake, flood, and sinkhole coverage matches the property’s actual risk profile, rather than assuming a standard property policy responds to every peril. Fourth, avoid rushing to remediate before conditions are documented and/or before consulting counsel. Well-intentioned repairs can inadvertently compromise evidence needed to prove a defect claim.
The June earthquake was a reminder that Florida’s catastrophic risk profile extends beyond hurricane season. Property owners, associations, and developers who build readiness plans around all forms of catastrophic stress, not just named storms, will be far better positioned when the next unexpected event occurs.
Franchesco “Frank” Soto is a partner in
Ball Janik’s Construction Defect Practice Group in Miami. He may be reached at fsoto@balljanik.com.
Amanda L. Gonzalez is a litigation attorney in
Ball Janik’s Construction Defect Practice Group in Miami. She may be reached at agonzalez@balljanik.com.
Limitations of Liability Provisions in Construction Contracts: A Means to Manage Risk and Limit Financial Exposure
June 23, 2026 —
Ellen Chapelle, Richard Reizen, Hannah Batsche - Construction ExecutiveTaking a cue from architects and engineers, construction contractors have started inserting limitation of
liability clauses in their construction contracts to manage risk and limit financial exposure. This article will address the specific risks that can be limited through an LOL, tips for negotiating the LOL terms with reluctant owners to cover those specific risks, how to limit unintended consequences of an LOL (such as relieving an insurer of its obligations to cover certain losses), and approaches to setting the amount of the liability cap in the LOL.
Addressing Particular Risks
An LOL can address a wide range of risks, including:
- Damages for delay
- Liability for non-conforming or defective work
- Liability for third-party bodily injury or property damage
- Liability excluded by a general liability policy (e.g., pollution and cyber liability)
- Liability related to intellectual property
Reprinted courtesy of
Ellen Chapelle, Richard Reizen, Hannah Batsche, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Your Construction Contract Won’t Always Save You From a Bad Project Record
November 02, 2026 —
Matthew J. Devries - Best Practices Construction Law BlogConstruction contracts are full of protections. No-damage-for-delay clauses. Consequential damage waivers. Rights to supplement a subcontractor’s work. Broad scheduling provisions. But a recent Tennessee construction case provides an important reminder: the best contract in the world may not save you from bad project facts.
In Commercial Painting Company, Inc. v. The Weitz Company, LLC (TN Ct. App. Oct. 28, 2026), the dispute involved a general contractor and its drywall subcontractor on a multi-building retirement community. The subcontract was originally worth more than $3.2 million, and the parties eventually disagreed about delays, scheduling, supplemental work, backcharges, and unpaid applications for payment. What began as a fairly typical construction dispute became anything but typical. A jury ultimately found that the general contractor had intentionally misrepresented material facts and awarded the subcontractor $3.9 million in punitive damages. (The case has a lengthy procedural history involving multiple appeals, but this post focuses only on the practical lessons from the most recent decision.)
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Matthew J. Devries, BuchalterMr. Devries may be contacted at
mdevries@buchalter.com
Hunton’s Jae Lynn Huckaba Selected to Miami-Dade Bar’s 2026 Circle of Excellence for Insurance Law
October 26, 2026 —
Hunton Insurance Recovery BlogCongratulations to Hunton insurance coverage associate
Jae Lynn (JL) Huckaba for being selected to the Miami-Dade Bar’s 2026 Circle of Excellence for Insurance Law.
Now in its fifth year, the Miami-Dade Bar’s Circle of Excellence Awards recognize attorneys who exemplify the highest standards of skill, integrity, and professionalism across the county. Honorees are chosen by a panel of past Circle of Excellence recipients following a rigorous two-month review that incorporates input from the public, Bar members, and committee leadership.
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Hunton Andrews Kurth LLP
Did You Know: Unique Legal Considerations for Animal Care Facilities
August 24, 2026 —
Hannah Skidmore - Construction ExecutiveAnimal care facilities are highly specialized environments that require expertise far beyond traditional commercial or even standard medical construction. Whether designing and building animal shelters, doggy daycares, veterinary clinics or full-service animal hospitals, these facilities operate under conditions that introduce unique challenges related to sanitation, durability, animal behavior and operational workflows.
Because of these complexities, projects that fail to account for animal care requirements adequately often encounter costly issues—many of which result in litigation. Below are real-world examples drawn from expert witness work, followed by proactive best practices construction professionals should apply to future animal care projects.
Reprinted courtesy of
Hannah Skidmore, Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
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Jonathan Aihie Named to The National Bar Association’s “Top 40 Under 40” List
August 03, 2026 —
Lewis BrisboisFort Lauderdale Partner Jonathan Aihie was recently named to The National Bar Association (NBA) “Top 40 Under 40” list.
The NBA “Top 40 Under 40” recognizes the nation's top lawyers under the age of 40 who demonstrate professional excellence, leadership, and commitment to the community. Recipients represent a broad cross-section of the legal profession, including private practice, government, academia, the judiciary, corporate counsel, and public service.
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Lewis Brisbois