Opinion
C.A. No. 02C-12-003 WLW.
Submitted: March 10, 2006.
Decided: July 28, 2006.
Upon Defendant Richard Davis' Motion in Limine to Exclude Certain Damage Claims. Granted in part; Denied in part.
William D. Fletcher, Jr., Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware and Marry F. Higgins, Esquire, Odessa, Delaware; co-counsel for Plaintiffs.
Robert K. Pearce, Esquire of Ferry Joseph Pearce, P.A., Wilmington, Delaware; attorneys for Defendant Richard Davis.
Norman H. Brooks, Esquire of Marks O'Neill O'Brien Courtney, P.C., Wilmington, Delaware; attorneys for Defendant RHIS.
ORDER
Defendant Richard Davis ("Defendant" or "Davis") filed a motion to exclude certain damage claims alleging that they should be excluded to the extent that they are speculative or were not proximately caused by any negligence or breach of contract committed by Davis and RHIS, Inc. d/b/a Reliable Home Inspection Service. Plaintiff responds by asserting that the damages are reasonable, consequential and foreseeable as well as related to Davis' wrongful conduct.
The facts and contentions of the parties are set forth in an earlier decision of this Court and will not be recited here.
Atwell v. RHIS, Inc., et al., C.A. No. 02C-12-003WLW, Order and Opinion decided on May 31, 2005.
The Standard
Both parties agree that the damages for breach of contract would be in an amount to return the injured party to the position they would have been in had the breach not occurred. Damages in both a breach of contract or negligence action are also limited to those which were proximately caused by the off ending party.Discussion
Davis believes the damages claims were not proximately caused by any breach of the defendants nor were they foreseen or anticipated.1. Lost Wages. Plaintiff asserts in Exhibit E, Item 2 attached to Davis' motion, lost wages in the amount of $7,200.00. This is calculated at $800.00 per month from September 29, 2002 to June 30, 2003. The Court agrees that medical evidence is not necessary since the wage claim is not related to her person al illness. How ever, wages do not necessarily translate into lost income from Plaintiff's cabinet sales. Plaintiff must be able to show that these losses were reasonable and a consequential, foreseeable loss. Based on the limited facts before the Court, I can not exclude this claim and defer it to trial.
2. Utility Shed. The measure to be applied to this claim should not be the cost of a utility or storage shed, but the storage cost for furniture and household items recoverable from the moisture and mold damage. The cost of storage would be a foreseeable claim if the house could not be occupied because of the moisture problem. The cost of a storage shed is not a reasonable foreseeable claim and therefore this claim is excluded.
3. Replacement of Furnace. There is evidence, if believed by the jury, to show that the heating system was defective. It is unclear if there is a claim for the air conditioning upgrade from a review of Exhibit E. The matters raised by Davis go to the weight and credibility of the evidence. This claim may be presented at this time subject to further review.
4. Remodel Master Bedroom/Replace Drywall in Bedroom . This claim may be presented but not if it is subsumed in the other claims such as the cost of cleaning and remediating the home. The cost of repair or replacement for the wrongful con duct is proper in this case, but not improvement to the home.
5. Lease Alternative Showroom. The Court agrees with the reasonableness of this cost and that this is a foreseeable issue for the jury.
6. Install Security System. The cost of a security system as well as the maintenance of one is not reasonably foreseeable, nor a consequential damage claim; and is an improvement in any event. This claim is excluded.
7. Grading Expenses. This is a claim that the jury may consider as a reasonable and consequential damage claim resulting from Defendant's conduct.
8. Miscellaneous Claim s. Any receipts pertaining to items 8 and 9 of Exhibit E which are not related to the repair of the moisture and mold damage are excluded.
9. Loss of Use of the Property. Generally, lost of use is a consequential damage claim in cases of this genre. If this claim can be factually supported, it may be a recoverable consequential damage claim.
10. Personal Property Damage (to include toys and clothing). While the gross claim for value of loss of personal property may be high, this Court has allowed estimates made by the homeowner for values of personal property in casualty claims as well as cases of this nature. Both parties agree that the measure is the amount of money that will place the non-breaching party in the same position if the breach had not occurred. This claim may be submitted.
IT IS SO ORDERED.