§15.7 Documenting Damages Claimed

• Jurisdiction: Washington

§15.7 DOCUMENTING DAMAGES CLAIMED

This section discusses the documentation required to prove damages in a construction damage claim.

(1) Level of proof required

A claimant bears the burden of proving his or her damages but, despite favor for the actual cost method, the level of proof required in Washington for construction damages is not "absolute exactness or exact mathematical precision." Callahan, Construction Change Order Claims §16.4; see, e.g., V.C. Edwards Contracting Co. v. Port ofTacoma, 83 Wn.2d 7,514.2d 1381 (1973); Wenzler & Ward Plumbing & Heating Co. v. Sellen, 53 Wn.2d 96, 99-100, 330 P.2d 1068 (1958). Damages need not be proved to the extent of each and every dollar, but instead must be based on competent evidence. Fed. Signal Corp. v. Safety Factors, Inc., 125 Wn.2d 413, 443, 886 P.2d 172 (1994) (citing Interlake Porsche & Audi, Inc. v. Bucholz, 45 Wn. App. 502, 510, 728 P.2d 597 (1986), review denied, 107 Wn.2d 1022 (1987)); ESCA Corp. v. KPMG Peat Marwick, 86 Wn. App. 628, 639, 939 P.2d 1228 (1997). When the court is convinced that substantial damage has occurred as a result of the claimed breach, even though the exact amount is difficult or impossible to prove, the injured party will not be denied a remedy in damages because of lack of certainty. V.C. Edwards, 83 Wn.2d at 15; see also Reefer Queen Co. v. Marine Constr. & Design Co., 73 Wn.2d 774,440 P.2d 448 (1968) (citing Larsen v. Walton Plywood Co., 65 Wn.2d 1, 16, 390 P.2d 677 (1964)); Wenzler, 53 Wn.2d 96. When the fact of damage is established, the court is permitted to make reasonable inferences based on reasonably convincing evidence as to the quantum. Pugel v. Monheimer, 83 Wn. App. 688, 692, 922 P.2d 1377 (1996), review denied, 131 Wn.2d 1024 (1997); Alpine Indus. Inc. v. Gohl, 30 Wn. App. 750, 754, 637 P.2d 998 (1981), review denied, 97 Wn.2d 1013 (1982) (quoting Gaasland Co. v. Hyak Lumber & Mill Work, Inc., 42 Wn.2d 705, 712, 713, 257 P.2d 784 (1953)). The federal courts follow these same basic standards. See, e.g., S. W. Electronics & Mfg. Corp. v. United States, 1088,228 Ct. Cl. 333, 350, 655 F.2d 1078 (1981) (citing Electronic & Missile Facs., Inc. v. United States, 189 Ct. Cl. 237, 416 F.2d 1345 (1969) ("The ascertainment of

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damages... is not an exact science, and where responsibility for damage is clear, it is not essential that the amount thereof be ascertainable with absolute exactness or mathematical precision: 'It is enough if the evidence adduced is sufficient to enable a court or jury to make a fair and reasonable approximation.'" (citation omitted)).

(2) Damages documentation

Although the focus of this section is on documentary proof, a claimant should not overlook the importance of the involvement of project personnel in the process. There is...