In an ideal world we would always get what we pay for, and people would always live up to their obligations. Unfortunately in both residential and commercial buildings, the contractor does not always provide the quality of work that was contracted for. Often litigation arises to resolve the dispute. The focus of the litigation is going to be whether or not the contractor breached his or her contract, but underlying the entire case is the question of what the damages are if the contract was breached.
Do you tear down the building and build a new one? Do you simply get the money it would cost to repair it? Do you get the difference in value of what the building would be worth if was built correctly?
In every case the facts will vary as to what the proper solution is, but Wisconsin Jury Insturction 3700 gives us a clue. Jury Instruction 3700 suggests dealing with damages in the case of a breach of a building contract in the following way:
1. Can the building be repaired? If it can, what is the reasonable cost of repairs?
2. If the building cannot be repaired, what would the value of the building have been if it had been built correctly? What is the current value of the building having been built incorrectly? (The difference would be the damages)
These remedies may not be wholly adequate in every case, and these jury instructions are mandatory, though Wisconsin Courts do prefer to use the model jury instructions, but it can be helpful to know what ultimate question the jury may be facing at the beginning of your dispute as it may help inform the decisions you make in trying to resolve the matter prior to litigation.
Sean M. Sweeney is a shareholder at Halling & Cayo. His practice focuses on business litigation, civil litigation, stock broker fraud, business transnational law, and real estate law. Sean represents investors, small business owners, and companies locally in Wisconsin, all over the United States, as well as internationally with clients in Canada, Germany, and Australia.
Email Sean: [email protected]