The Issue
In Bandklayder Development, LLC v. Sabga, 406 So. 3d 265 (Fla. 3d DCA 2025), and Vuletic Group LLC v. Malkin, 418 So. 3d 627 (Fla. 4th DCA 2025), two district courts reversed plaintiff judgments in construction defect cases because the homeowners priced their repair damages as of trial rather than as of the date of the breach. The question now being litigated is how far that requirement reaches: does it apply only to breach of contract claims, or also to defect claims pled in negligence or under the Florida Building Code?
The Rule
Both courts applied Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982), which holds that damages for breach of contract are measured as of the date of the breach, and that fluctuations in value after the breach do not affect recovery. In Bandklayder, the plaintiffs offered repair estimates priced at the expert's report and at trial, but none as of the breach, and the Third District held they failed to establish the proper measure of damages; notably, the court identified the relevant breach date as June 2017, or at the latest April 2018 following the Chapter 558 notice, making the timing of the breach a potentially dispositive issue in the damages analysis. In Vuletic, the Fourth District held that the breach occurred no later than the date the owners terminated the contract, and estimates prepared years later did not establish damages as of that date.
The Future Outlook
The reach of these decisions is unsettled. Plaintiffs are arguing that the date-of-breach standard is a contract rule only, and that claims pled in tort or under F.S. 553.84 carry no such limitation. In Eloquence on the Bay Condominium Ass'n v. CDC Builders, 415 So. 3d 259 (Fla. 3d DCA 2025), the Third District had the opportunity to apply the rule outside the contract context and instead affirmed on preservation grounds, leaving the question open for another day.
For Claims Professionals
For claims professionals evaluating defect exposure, three practical points follow. First, how the complaint is pled now materially affects the damages model, and a tort count may be an attempt to avoid a pricing limitation rather than a substantive theory. Second, the date of breach itself is a contested fact worth developing early, whether it is the certificate of occupancy, the 558 notice, or termination of the contract. Third, in files where the plaintiff has priced repairs only as of trial, the damages proof may be vulnerable regardless of the merits of the defect claim. Bandklayder and Vuletic also serve as reminders that the correct measure of damages must be proven at trial, as courts may be unwilling to grant a second bite at the apple.
If these issues are relevant to your pending matters, we welcome the conversation.