The Breach is the Benchmark: Measuring the Cost to Repair and Replace

As law students, we dreaded our professors' universal answer, "It depends." As practitioners, we learn it sometimes does not, especially when the question is sufficiently narrow. In Florida, one example arises when dealing with the date on which damages for the cost to repair and replace defective construction are measured.

Both the plaintiffs' bar and defense counsel agree that, from Grossman Holdings Ltd. v. Hourihan, 414 So. 2d 1037 (Fla. 1982) to modern cases like Vuletic Group, LLC. v. Malkin, 2025 WL 1944045 (Fla. 4th DCA 2025), Florida courts have traced a throughline on this question grounded in fairness and equity. Yet, each side strongly disagrees about what is "fair and equitable." This article contends that the answer does not depend; rather, these compensatory damages are measured as of the date of the breach, irrespective of the cause of action or nature of the defect, precisely because of what is fair and equitable.

The Grossman Foundation
In Grossman, a home purchaser sued the builder for constructing a house facing the wrong direction: a patent defect. Adopting "Restatement (First) of Contracts" § 346(1) (1932), the Florida Supreme Court held that damages for defective construction are measured as of the date of breach and equal to the cost of repair or completion, provided the amount is not grossly disproportionate to the resulting diminution in value.

The court rooted its decision in two precepts: (1) directly from the Restatement, damages should compensate "for all unavoidable harm that the builder had reason to foresee when the contract was made," and (2) "[f]luctuations in value after the breach do not affect the non-breaching party's recovery."

Post-Grossman Application

• Andalora v. Lindenberger, 576 So. 2d 354 (Fla. 4th DCA 1991). The homeowner counterclaimed for breach of contract, breach of warranty, and negligence. The homeowner prevailed, and its damages were measured almost one and a half years after the breach. The Fourth reversed and held that the cost to repair and replace must be measured as of the date of the breach. Although the court did not use the term "patent," the owner refused to make final payment due to visible deficiencies, which indicates at least some of the defects were patent.
• Peach State Roofing, Inc. v. 2224 South Trail Corp., 3 So. 3d at 442 (Fla. 2d DCA 2009). The owner sued its roofing contractor in breach of contract for defective waterproofing. The First reversed and held that damages for defective roofing "should be measured as of the date of breach."
• Jeremy Stewart Construction, Inc. v. Matthews, 324 So. 3d at 41 (Fla. 1st DCA 2021). The court, in breach of contract action, held that breach of contract damages for patent defective roofing "should be measured as of the date of breach."
• Bandklayder Dev'l, LLC v. Sabga, 406 So. 3d 265 (Fla. 3d DCA 2025). The Third reversed a verdict for homeowners, reaffirming that damages must be measured as of the date of the breach and declining to remand for recalculation. The defects were patent.
• Vuletic Group, LLC. v. Malkin 2025 WL 1944045 (Fla. 4th DCA 2025). The Fourth reversed when damages were calculated as of trial, explaining that the breach-date measure reflects "actual expenditures occasioned by the breach." The lawsuit sounded in both breach of contract and tort-based theories.

Together, these cases confirm that Grossman's date-of-breach rule controls, regardless of cause of action or observability of the defect.

Tort vs. Contract: A Distinction Without a Difference
Still, plaintiffs argue that tort claims result in larger damage awards than those sounding in contract. They cite Tillman v. Howell, 634 So. 2d 268 (Fla. 4th DCA 1996), which distinguished among natural, direct, and proximate consequences of tortious conduct and damages that were or should have been contemplated by contracting parties. Indeed, both Grossman and the "Restatement (First) of Contracts" § 346(1) limit recovery to foreseeable, unavoidable harm measured as of the breach—a rule echoed in Bandklayder.

Notably, Florida also applies "benefit-of-the-bargain" recovery in both tort and contract. [See Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So. 2d 1124 (Fla. 2007); Forbes v. Prime General Contractors, Inc., 255 So. 3d 448 (Fla. 2d DCA 2018)]. The takeaway: The cost to repair and replace is confined, whether in tort or contract, to foreseeable, non-speculative loss measured at the breach.

Patent vs. Latent: Also Meaningless in This Context
Relatedly, plaintiffs argue that date-of-breach is unfair as to latent defects: Dubin v. Dow Corning Corp., 478 So. 2d 71 (Fla. 2d DCA 1985); Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000). But this creative advocacy is belied by the inescapable fact that not one opinion in Florida enunciates this latent defect exception. Limiting recovery to the breach date, plus prejudgment interest, restores the owner to the bargained-for position without awarding more than the contractor could have foreseen, ensuring compensation for actual—not inflated—loss.

Jury Instructions Are Established
Florida has a model instruction for construction defects, § 17.116. Consistent with Grossman, § 17.116 makes no distinction among contract, negligence, or building-code claims. Rather, it directs juries to award the reasonable cost of repair unless doing so would cause economic waste, no matter the claim or defect.

Prejudgment Interests Justify the Means
Finally, because prejudgment interests in construction cases may accrue on the date-of-breach, Florida's jurisprudence accounts for post-breach fluctuations in pricing. In Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 214-15 (Fla. 1985), a seminal construction case, the Supreme Court held that the plaintiff is entitled to prejudgment interest from the date of loss because the "loss itself is a wrongful deprivation," regardless of when the out-of-pocket expenses accrued.

Pine Ridge at Haverhill Condo. Ass'n, Inc. v. Hovnanian of Palm Beach II, Inc., 629 So. 2d 151 (Fla. 4th DCA 1993) fixed interest from turnover, and Centex-Rooney Constr. Co. v. Martin County, 706 So. 2d 20 (Fla. 4th DCA 1997), from substantial completion. Coupled with Florida's equitable exception rule that permits courts to adjust the trigger date for prejudgment interests—under Broward County v. Finlayson, 555 So. 2d 1211 (Fla. 1990)—Florida law is thus designed to ensure full compensation, without windfall, by measuring loss and interest from dates that account for fairness and equity. On the narrow question as to the date on which costs to repair and replace defective construction are measured, the answer in Florida does not depend. It is the date of the breach.