McAlonan v. U.S. Home Corp., 84CA0074

Decision Date30 January 1986
Docket NumberNo. 84CA0074,84CA0074
Citation724 P.2d 78
PartiesSusan McALONAN, Plaintiff-Appellee, v. U.S. HOME CORPORATION, Defendant-Appellant. . I
CourtColorado Court of Appeals

Renner & Rodman, Paul D. Renner, Denver, for plaintiff-appellee.

Walberg Law Offices, Wendelyn K. Walberg, Denver, for defendant-appellant.

PIERCE, Judge.

U.S. Home Corporation (U.S. Home) appeals from a judgment entered upon a jury verdict in favor of plaintiff, Susan McAlonan (McAlonan). We affirm.

Soon after buying a condominium from U.S. Home in 1981, McAlonan noticed defects requiring repair throughout the unit, including severe cracks in the foundation. In 1982, an arbitrator's award required U.S. Home to repair 24 enumerated defects to the condominium.

In 1983, McAlonan filed a complaint alleging that U.S. Home had failed to comply with the arbitrator's award. In addition, McAlonan alleged negligence in design, breach of an implied warranty to construct in a workmanlike manner, breach of an implied warranty of habitability, severe emotional distress, and intentional trespass; she sought compensatory as well as exemplary damages. At trial, the jury returned a general verdict awarding McAlonan $150,000 in actual damages and $150,000 in exemplary damages.

I.

U.S. Home first argues that the trial court erred in instructing the jurors, if they found for McAlonan, to:

"[A]ward as her actual damages the reasonable cost of repairing the property, together with the decrease in market value, if any, to the property, as repaired."

We disagree.

U.S. Home tendered the following instruction as a substitute for the one above which stated: "When purchasers retain the property, the proper measure of damages for a breach of a builder's warranty of workmanship is the cost of bringing the property into conformity with the warranty."

Under the circumstances here, U.S. Home's tendered instruction could have improperly limited plaintiff's recovery. Plaintiff is entitled to such damages as necessary to make her whole. Bullerdick v. Pritchard, 90 Colo. 272, 8 P.2d 705 (1932). Here, there is a possibility that the property, as repaired, may nevertheless have a reduced market value; thus, the given instruction, unlike the one tendered, properly instructed the jury so as to make plaintiff whole. See CJI Civ.2d 6:12 (1980).

U.S. Home further contends that, at the very least, the complete instruction stated in CJI Civ.2d 6:12 (1980) should have been given. The paragraph of the pattern instruction omitted here reads as follows: "If the cost of (repairs) (rebuilding) together with any decrease in market value of the property as (repaired) (rebuilt) exceeds the market value of the property before the occurrence, your award shall be limited to the market value of the property before the occurrence."

The instructions as contained in Colorado Jury Instructions are used when they are "applicable to the evidence." C.R.C.P. 51.1. Here, inclusion of the omitted paragraph from the pattern instruction, by limiting recovery to the "before occurrence" market value, would have allowed McAlonan to recover only her purchase price, thereby denying her recovery of any appreciation.

Fair market value may not always be the appropriate measure of damages. See Bullerdick, supra. Appreciation or added value may properly be considered a loss. See generally Medema Homes, Inc. v. Lynn, 647 P.2d 664 (Colo.1982); ...

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4 cases
  • Aas v. Superior Court
    • United States
    • California Court of Appeals Court of Appeals
    • June 11, 1998
    ...claim for "stigma" damages, the Aas petitioners cite two decisions from other states. The first case, McAlonan v. U.S. Home Corporation (1986) (Colo.App.1986) 724 P.2d 78 (McAlonan ), involved numerous construction defects in a condominium, including severe cracks in the foundation. (Id. at......
  • Colorado Dept. of Revenue, Motor Vehicle Div. v. Kirke
    • United States
    • Colorado Supreme Court
    • September 14, 1987
  • Airborne, Inc. v. Denver Air Center, Inc., 90CA2218
    • United States
    • Colorado Court of Appeals
    • April 23, 1992
    ...36 Colo.App. 382, 540 P.2d 1132 (1975) (personal property damaged while with bailee); CJI-Civ.2d 6:12 (1988); cf. McAlonan v. U.S. Home Corp., 724 P.2d 78 (Colo.App.1986) (condominium); Holland v. Green Mountain Swim Club, Inc., 470 P.2d 61 (Colo.1970) (not selected for official publication......
  • HERITAGE VILLAGE OWNERS v. GOLDEN HERITAGE, 02CA0985.
    • United States
    • Colorado Court of Appeals
    • March 11, 2004
    ...sought as damages only the cost of repairs, not additional compensation for reduced market value after repairs. Cf. McAlonan v. U.S. Home Corp., 724 P.2d 78 (Colo.App.1986)(affirming instruction directing jury to measure damages to residential property as the cost of repair plus any diminut......
3 books & journal articles
  • Stigma damages: property damage and the fear of risk.
    • United States
    • Defense Counsel Journal Vol. 62 No. 4, October 1995
    • October 1, 1995
    ...for diminished property value caused by lingering negative public perception or stigma). (34.) 309 N.W.2d 356 (Wis.App. 1981). (35.) 724 P.2d 78, 80 (Colo.App. 1986). (36.) 681 P.2d 1316 (Wyo. 1984). (37.) 604 P.2d 198 (Wyo. 1979). (38.) 865 P.2d 1044 (Kan. App. 1993). (39.) 670 S.W.2d 657,......
  • Recovering Actual Damages Under Colorado's Construction Defect Action Reform Act-part Ii
    • United States
    • Colorado Bar Association Colorado Lawyer No. 38-6, June 2009
    • Invalid date
    ...attorney fee damage claims. 50. See House testimony on H.B. 1161, supra note 16. 51. CRS § 13-20-802. 52. See McAlonan v. U.S. Home Corp., 724 P.2d 78, 79-80 (Colo.App. 1986) (upholding jury instruction to measure damages as cost of repair plus any diminution in market value as repaired). T......
  • Foreseeability and the Economic Loss Rule-part Ii
    • United States
    • Colorado Bar Association Colorado Lawyer No. 33-9, September 2004
    • Invalid date
    ...implied warranty of habitability claims against builder for construction defects; decided on other grounds); McAlonan v. U.S. Home Corp., 724 P.2d 78, 79 (Colo.App. 1986) (involving negligence in design, implied warranty to construct in workmanlike manner, and implied warranty of habitabili......

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