Trent Cotney shares new legal insights

By Emma Peterson.

In his September 2026 newsletter, Trent Cotney highlights legal cases and changes contractors need to be aware of.

Every month, Trent Cotney, a partner and roofing litigation/arbitration expert at the Adams and Reese law firm, releases a Cotney Brief newsletter. These newsletters share key insights from Trent on the legal state of the industry, complete with advice and provisions that professionals can incorporate into their own operations. Here’s the main topics he pointed out in the most recent, September 2026, brief.

1 – The EPA’s PFAS designation

At the end of August, the D.C. Circuit unanimously upheld Environmental Protections Agency (EPA)’s designation of PFOA and PFOS as “hazardous substances” under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA or also commonly known as Superfund). They further clarified that CERCLA “does not require certainty that a substance will cause substantial harm” and in place of this the EPA makes the call.

What this means for contractors: Contractors working in demolition, remediation, waste handling and other possibly contaminated areas should pay extra attention to “PFAS exposure, disposal practices, indemnity provisions and environmental risk allocation.”

2 – Suquilanda v. Skyway Roofing, Inc.

In this case, a roofer employed by the subcontractor MBT Construction Corp. suffered catastrophic injuries due to a fall while replacing shingles on a project. He sued the main contractor, Skyway Roofing, for negligence under the argument that “Skyway controlled jobsite safety and knew MBT had prior OSHA fall-protection citations.”

Recently, the Massachusetts Supreme Judicial Court held that Skyway “does not owe a subcontractor's employee a duty of care under the retained-control doctrine unless the general contractor retains or exercises control over the injury-producing work or safety practices.”

What this means for contractors: The court determined that the general contractor owed no safety duty to the subcontractor’s injured employee. Contractors should take note of this case and review contract language and safety provisions to ensure that operational control over a subcontractor’s work remains the subcontractor's responsibility.

3 – Testing and investigating provision

When issues arise related to defects or water intrusion, the next step is often testing, core cuts, probes, tear-offs and other investigations. These are good steps, but they are also considered destructive investigation, can be quite expensive and are unfortunately often demanded prematurely, before anyone knows whether the issue is actually caused by the contractor’s work.

What this means for contractors: Contractors should ensure they have a provision in their contract that addresses these investigation and testing situations. More specifically, they should make it clear who is paying for the investigation. Trent recommends a provision that shifts those costs based on the outcome. In his words, “If the investigation establishes defective or nonconforming contractor work, the contractor bears the reasonable cost. If the contractor's work complies with the contract requirements, the owner bears the investigation and restoration costs.” Here’s an example of what that provision might look like:

If Owner, Architect, Consultant or any other party acting on Owner's behalf requests testing, destructive investigation, exploratory openings, core samples, removal of completed Work or other investigation to determine whether Contractor's Work is defective or nonconforming, Owner shall initially bear all costs associated with such investigation, including testing, consultants, access, removal, protection and restoration.*

• Read the whole provision online.

4 – OSHA renews National Emphasis Program (NEP)

OSHA’s NEP program focuses on safety in warehousing and distribution center operations. By renewing this program (through the revised directive CPL 03-00-026), OSHA is signaling the continuation of their scrutiny of workplace safety practices for another five years.

The reason for this extension was the injury statistics they uncovered during the first run of the program, “OSHA reports that during the first 18 months of the original warehouse NEP, inspectors identified more than 1,700 violations and removed approximately 37,410 workers from hazardous conditions.”

While still the same program, the 2026 renewed version does come with a few changes. Notably, OSHA removed high-injury-rate retail establishments from the scope of the program and eliminated mandatory screening requirements for ergonomic and heat hazards.

What this means for contractors: For those managing warehouses and distribution factors, the renewal of NEP should encourage them to audit their operations with special focus given to “forklift operations, material storage, walking-working surfaces, emergency exits, fire protection, heat procedures, ergonomics and OSHA recordkeeping.” These professionals also should ensure that their employees know what to do when OSHA compliance officer show up on site.

Read more of the September 2026 brief and find Trent’s other newsletters online!