Recent decisions in Florida (see here) have harshly come out against owners in construction defect cases that fail to properly measure their damages as of the date of the breach. The result has been a big “L” for owners in these cases based on an appeal even though the owners won at the trial level.

In a recent case, an owner presented construction defect damages from an expert and prevailed at trial. However, the damages were NOT measured as of the date of the breach, but years after. The appellate court reversed and remanded in favor of the contractor, meaning the owner lost the case.

If you are involved in a construction defect case, make sure the below is instilled in your thought process and analysis because you NEED to know how to prove construction defect damages and defend against construction defect damages:

“Damages for a breach of contract should be measured as of the date of the breach. Fluctuations in value after the breach do not affect the nonbreaching party’s recovery.” Damages are not supported by competent, substantial evidence when damages are assessed for a time other than that of the time of breach.
***
The homeowners “had a duty to prove each element of their claim, including the proper measure of damages.” “The generally prevailing rule is that a party will not be permitted a new trial on remand to remedy its own failure to present sufficient evidence to support its claim.” On remand, the homeowners are not entitled to a new trial on damages “because such a hearing ‘improperly allows appellee “a second bite at the apple” at proving damages.’ ”

Vuletic Group L.L.C. v. Malkin, 50 Fla.L.Weekly D1546c (Fla. 4th DCA 2025) (internal citations omitted).

Do not neglect the proper measure of damages in construction defect cases!

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.