Plaintiffs, homeowners, contracted with defendant builder to construct a four-story house in Arlington County. Plaintiffs retained defendant surveyor to perform a stakeout and wall-check survey during construction. After the house was under roof with roughed-in plumbing, electrical and HVAC systems, the surveyor’s plat revealed that the house was in violation of Arlington County’s height restriction and set back limitations on two sides of the house and was cockeyed on the lot.

Plaintiff’s builder expert opined that the builder was responsible for ensuring that a wall check was performed before framing commenced on the house. Plaintiffs also alleged that the builder built the basement wall one foot higher than reflected on the approved plans.

Plaintiffs also alleged that the surveyor failed to timely provide its wall-check survey results to the builder and/or plaintiffs before construction progressed further. Plaintiffs alleged that the surveyor provided cut sheets to plaintiffs that permitted the house to be built one foot higher than on the approved grading/site plan. Plaintiffs proposed alternate measures of damages, including the cost to correct the defective construction at $276,000 (the cost method) and the lost profit on the sale of the home at $580,000 (the value method of damages) plus other damages, including carrying costs for the construction loan and attorney’s fees charged by prior counsel who attempted unsuccessfully to obtain a variance.

Defendants alleged that plaintiffs themselves acted as their own general contractor at the early, critical stages of construction and mismanaged the work, causing the basement floor to be 3.1 feet too high and the basement walls to be poured in violation of the setbacks. Defendant surveying expert alleged that the stakeout was performed correctly and that neither the owners nor the builder had the right to proceed with framing or other construction before receiving the wall-check survey results. Plaintiffs presented no surveying expert testimony. Defendants argued that the bulk of plaintiff’s damages resulted from their own errors and plaintiff’s sole measure of recovery was the cost to correct any work improperly performed.

The fact that the builder had no applicable liability insurance policy and the fact that plaintiffs believed that the builder was not responsible for the construction errors in this case was a significant factor in plaintiffs’ willingness to settle for the ultimate amount. Trial would have involved about a dozen experts and up to the three weeks of testimony.