Q: Do I have a case to sue a landscaper at fault grade and drainage alteration?
A storm came through in April and flooded around our window wells sending water into our basement damaging areas of two rooms. Builder said landscaper trapped water up against the house with a concrete walkway that didn’t have a drain. A consulting company came and reshot the grade and determined landscaper at fault. Our backyard has so many defects (including a lot of drainage issues), another landscaper quoted $11k to fix. Initial landscaper was paid over $42k and job is technically incomplete and we had to pay to repair rooms in the basement (first water damage mitigation then repair carpets, drywall, etc.) His insurer denied his claim, effectively denying ours. Currently working with an attorney who says next step is to sue (we already put on notice over 60 days ago and asked for reconsideration from insurer). Before going silent, landscaper accused me of not giving back signed contract. Do we honestly have a case or are we gonna end up spending so much money suing just to lose?
A: The decision to engage in litigation should be economically rational. From the explanation above, it appears that the damage resulting from the original landscaping contractor's has been assessed at about $11,000 (the cost of fixing the errors). It is unclear whether there is a fee shifting clause in your contract with the landscape contractor which allows you to recover your attorney's fees if you prevail in a law suit. If there is no fee shifting clause, and your maximum amount of damages is about $11k, then your maximum recovery may be at best $11000 + some costs - attorney fees. This of course is a very crude calculation but it should inform your decision to invest in litigation. The strength of each claim that you may assert in litigation is determined by the facts of the case. So your current attorney is in the best position to give you a frank assessment. But whether litigation is the rational choice depends on the amount of damages that you may recover less the costs to litigate, including your attorney's fees.
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