Florida Community Association Construction Law Blog

Unit owner Jerome Feldman and his company sued the Villa Regina Association, Inc. for water damage in the unit from the common element. Generally, if damage to a unit is repairable, thus rendering the damage "temporary", the measure of damage is the cost of repair. Where the cost of repair would exceed the value of the unit or restoration is impractical, thus rendering the damage "permanent", the measure of damages is the diminished value of the unit.

Feldman presented his case solely as a permanent damage case, presenting as his sole measure of damages the diminished value of the unit of $1,453,000.00. Even though the $1,453,000.00 diminished value opinion given by the appraiser was based upon a contractor's estimate for repair, Feldman got "hoisted on his own petard" when the jury found the damage to be temporary, meaning repairable. The judge did enter judgment for Feldman for the $1,453,000., but the Third District Court of Appeal reversed finding that once the jury determined that the damage was temporary, Feldman's failure to have presented testimony proving the cost of repair or replacement was fatal to his case.

Feldman v. Villa Regina Association, Inc., 89 So.3d 970 (Fla. 3d DCA 2012).