Section 18 Election of Damages

• Library: Damages 2012

“The goal of awarding damages is to compensate a party for a legally recognized loss.” Ameristar Jet Charter, Inc. v. Dodson Int’l Parts, Inc., 155 S.W.3d 50, 54 (Mo. banc 2005). “A party should be fully compensated for its loss, but not recover a windfall.” Id. On appeal, many defendants allege that the jury’s award contained duplicative damage awards resulting in a windfall for the plaintiff. This argument has been met with measured success. Claimants may want to strategically choose which damages they seek at trial.

In Gateway Foam Insulators, Inc. v. Jokerst Paving & Contracting, Inc., 279 S.W.3d 179, 184–187 (Mo. banc 2009), the Supreme Court of Missouri held that lost profits could be awarded to the owner of destroyed property (a foam rig) when the replacement of the destroyed property is delayed. In these cases, lost profits may be necessary to accomplish fully compensating the claimant for the claimant’s loss.

The Gateway Court reasoned that:

Making available lost profits in circumstances where they are caused by delayed replacement of the destroyed property is consistent with the standard applied in cases where...