The Florida Court of Appeal for the Fifth District Reversed the Trial Court’s Imposition of Delay Damages When the Plaintiff’s Expert “Assumed” Certain Expenses and Therefore Lacked Sufficient Factual Basis to Express His Opinions

Central Florida Plastering and Development, et al. v. Sovran Constr. Co., Inc.,
679 So.2d 1226 (1996)

Sovran Construction Company, Inc. (“Sovran”) contracted with the Orange County School Board (“School Board”) to construct the Cypress Creek High School. Sovran, in turn, subcontracted with Central Florida Plastering and Development Company, Inc. (“CFP”) requiring CFP to install lath and stucco panels on the exterior walls and to install ceiling framing in the auditorium. The contract between Sovran and the School Board obligated Sovran to pay to the School Board liquidated damages of $1,000 per day, and Sovran’s subcontracts with CFP called for CFP to indemnify Sovran “on account of any such damages and additional costs as a result of delays of CFP.”

During construction, when CFP installed the stucco panels, the roofs had not been completed on the buildings. Five months passed before the flashing and parapets were installed, exposing the panels to rain. Eventually, the panels loosened and pulled away from the building. Sovran contended that the nails used to secure the panels were too short. CFP, by contrast, argued that the increased rain absorption caused the panels to pull away.

Before rectifying the panel problem, CFP requested a change order. When Sovran insisted that CFP correct the problem at its own expense, CFP quit the job. Sovran then sued CFP for the cost of repair of the panels and for delay damages.

During the trial, over CFP’s objections, Sovran called an expert witness to testify as to the total amount of delay damages. As opposed to using the Eichleay formula or relying on any computer reports to calculate expenses, the expert “assumed” several numbers in reaching his opinion. In particular, because Sovran did not provide the expert with actual figures, he estimated general conditions expenses of $1,500 per day. Similarly, as to main office overhead expenses, lacking hard figures, the expert estimated a figure of $500 per day. Factoring in the $5,000 per day liquidated damages, the expert concluded that CFP was liable for $204,000 of that total. The jury found that CFP breached its subcontract with Sovran and awarded $566,106 to repair the defects and $204,000 for delay damages.

On appeal, citing subsection 90.705(2) of the Florida Statutes (1995), CFP argued that the expert’s testimony should have been excluded because it was speculative. That statute provides:

Prior to the witness giving the opinion, a party against whom the opinion or inference is offered may conduct a voir dire examination of the witness directed to the underlying facts or data for the witness’ opinion. If the party established prima facie evidence that the expert does not have a sufficient basis for the opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.

Reversing the trial court, the appellate court held that plaintiff’s expert lacked sufficient factual basis for his opinions regarding Sovran’s delay damages. More specifically, because the expert had “assumed” the facts underlying Sovran’s costs in the absence of hard figures, such speculative expert testimony should have been excluded.

In dictum, the appellate court also noted that the expert’s failure to provide a reasonable basis for apportionment of delay costs between concurrently responsible subcontractors warranted reversal.

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