Construction defect cases are rarely straightforward. Multiple parties, layered claims, and high exposure mean outcomes often turn on experience, strategy, and how effectively a defense team works together.

Mayer attorneys Tom Mailloux and Brittany Delgado have worked together for years defending contractors and design professionals in complex construction defect matters across Texas and beyond. Their collaborative approach and deep familiarity with multi-party litigation help clients navigate disputes efficiently and strategically.

Recently named among San Antonio Magazine’s 2025 Top Attorneys for Construction Law, Tom and Brittany sat down to share their perspectives on how construction defect claims have evolved, what drives complexity in these cases, and practical considerations for clients facing these disputes.

 

Q: You’ve worked together for years — how does that collaboration benefit clients in complex, multi-party cases?  

Brittany: Having worked together for years, we’ve developed an understanding of each other’s strengths and litigation styles. In complex, multi-party matters, that continuity translates into efficiency and clarity for clients. We anticipate issues earlier, divide responsibilities, and are able to present a unified defense that helps create a positive resolution for the client. 

Tom: Because we know each other’s strengths, we can divide work strategically, which directly benefits the client. That extends beyond Brittany and me. Our paralegal, Karin Durio, has worked with me for more than 20 years and with Brittany since she began handling construction defect cases, and our legal assistant Gabriella has been with us for years as well. We operate as a coordinated, experienced team, which helps prevent issues and creates strong synergy in defending our clients.

 

Q: Tom, how have construction defect claims evolved over the course of your career? What feels most different today?  

Tom: Earlier in my career, construction defect cases most often involved foundation movement, mold, and school district projects. Mold claims have largely disappeared after being excluded from coverage under most insurance policies. Foundation movement in structures remains an issue today, but is far less common than it once was, particularly compared to the widespread subdivision claims we used to see, likely due to improved design and construction practices. School district cases have also declined significantly, in part due to legislative changes over the past 10-15 years.

What feels most different today is the shift toward arbitration. Insurance carriers were once reluctant because of limited appeal rights, but many now recognize that having an experienced construction attorney serve as arbitrator leads to more efficient proceedings and better-informed decisions than a jury unfamiliar with construction issues.

 

Q: Brittany, from a day-to-day litigation perspective, what tends to drive complexity in these cases?

Brittany: The complexity usually comes from the number of moving parts. When representing a general contractor, you’re managing multiple parties with different interests, counsel, and often different timelines and risk tolerances. That affects everything from discovery and motion practice to scheduling and strategy. Add extensive documentation and overlapping legal and factual issues, and even routine decisions require careful planning. A large part of the work is staying organized, anticipating downstream effects, and giving the client a clear, manageable defense plan.

 

Q: Tom, what factors typically influence whether a construction defect case is better suited for early resolution versus litigation through trial or arbitration? 

Tom: A key factor is the reasonableness of the parties and their counsel. Many cases involve legitimate construction issues, but some are frivolous or driven purely by a desire for monetary recovery rather than repair.

In residential, condominium, and school district cases, Texas Right to Repair statutes require pre-suit notice and provide builders an opportunity to inspect and offer repairs. When both sides are realistic about the issues and repair methodology, early resolution is often achievable.

Expert involvement also matters. Cases where experts can quickly agree on the nature, cause, and scope of repairs are more likely to resolve early.

Insurance structure plays a major role as well. OCIP (owner-controlled insurance program)  and CCIP (contractor-controlled insurance program), both generally referred to as WRAP policies can simplify resolution by providing a single defense and avoiding disputes over fault allocation. By contrast, when multiple insurers defend individual subcontractors, discovery is often needed to determine responsibility, making early resolution more difficult.

That said, most construction defect cases still settle before trial or arbitration due to cost, complexity, and uncertainty—particularly before a jury unfamiliar with construction law.

 

Q: Brittany, what are some recurring issues that tend to escalate construction defect disputes unnecessarily?

Brittany: Strained relationships during construction or the warranty period are a major driver of escalation. These projects require ongoing cooperation, and when issues become personal, disputes often become more contentious, time-consuming, and costly.

Another common issue is poor documentation. Informal or “handshake” agreements can create serious problems once a dispute arises, as parties often remember terms differently. Proper contracts and contemporaneous documentation help clarify expectations, scopes of work, and responsibilities, and can significantly reduce discovery costs and disputes later.

 

Q: Tom, are there aspects of litigating construction defect cases in Texas that clients should be especially aware of?

Tom: The biggest, I believe, is that these cases are generally better suited for arbitration than court litigation. Texas courts are busy and often lack the capacity to devote weeks to a single multi-party trial. Arbitrators, by contrast, can dedicate the necessary time and typically have meaningful construction experience, which allows for a more efficient and focused presentation of evidence.

In residential cases, Texas’s Right to Repair statute requires detailed pre-suit notice and an opportunity to inspect and cure, and properly and timely responding can limit damages. The Right to Repair process is designed to encourage early resolution and minimize litigation, but it can also affect timing. For clients, this makes paying attention to notice requirements and deadlines essential and often shapes whether a case is best handled through informal negotiations, mediation or litigation.

Finally, some newer Commercial General Liability policies may deny coverage for construction defect claims if there are no written subcontract agreements, so having proper contracts in place is more important than ever.

 

Q: Brittany, for contractors or design professionals looking to reduce exposure, what steps can they take today to put themselves in a stronger position if a claim arises?  

Brittany: First, general contractors and homebuilders should have their contracts regularly reviewed and updated. Texas law changes every two years, and updated contracts can take advantage of new protections. For example, recent legislation reduced the residential statute of repose from 10 years to 5 years if a qualifying warranty is issued, yet many builders have not updated their warranties accordingly.

All parties should also have contracts reviewed before execution. Because we routinely defend these cases after disputes arise, we know what contract language is most helpful once litigation begins, and that value is even greater when addressed upfront.

Maintaining thorough project documentation—plans, change orders, inspections, photos, and correspondence—is also critical for defending claims and supporting proportionate responsibility arguments.

Finally, I strongly recommend including arbitration clauses in construction contracts. Given the technical nature of construction defect disputes, arbitration is typically faster, more efficient, and better suited to resolving these cases than jury trials.

 

If you’re facing a construction defect claim, or want to better position your business before a dispute arises, the Mayer construction team is here to help. Reach out to our team to start the conversation.