John Mark Goodman | BuildSmart
The general contractor on the 60-turbine wind farm project in Good Hope, Illinois, is entitled to collect a whopping $1 on its cost-to-complete claim against its terminated subcontractor. We previously reported on the court’s entry of summary judgment in favor of the general contractor, Black and Veatch Construction (BVCI), here and here. That order found that BVCI properly terminated its subcontractor, The Boldt Company, who was liable for damages in an amount to be determined by the jury. After the three-week jury trial, the jury awarded BVCI nominal damages in the amount of $1. Dissatisfied with the result, BVCI moved to set aside the verdict as against the weight of the evidence. U.S. District Judge Andrea Wood denied that motion in an opinion released last week. Her opinion provides insight into the jury’s decision to award nominal damages and offers valuable lessons for contractors seeking to recover cost-to-complete damages following termination of a subcontractor.
As a reminder, breach-of-contract damages generally seek to place an aggrieved party in the position they would have been in had the contract been performed. In cases where a subcontractor is terminated before completion due to defective performance, the general measure of damages is the difference between the reasonable cost to complete work and the subcontract price. Here, BVCI’s alleged cost to complete was $38.9 million compared to a subcontract price of just $15.4 million. With overhead and profit, BVCI’s total damage figure based on its costs to complete was $29.4 million.
The court’s recent opinion identifies a number of reasons why the jury could have reasonably concluded that BVCI failed to meet its burden of proving it was entitled to this amount. For example, BVCI’s alleged costs to complete totaling $39 million were based on two cost codes that were set up after Boldt’s termination. The jury heard evidence about numerous cost-coding errors that resulted in $17.7 million in project costs being transferred into a new cost code. The jury may also have questioned the reasonableness of BVCI’s costs to complete, which were over 2.5 times Boldt’s original subcontract price of $15.4 million. The biggest reason for that increase was BVCI’s decision to self-perform the turbine-erection work even though (1) it had never self-performed that kind of work before and (2) there were subcontractors available who could have done the work. The court reasoned that the jury could have reasonably refused to hold Boldt liable for BVCI’s costs of learning how to do the erection work “on the fly” instead of waiting for an experienced subcontractor to become available. The jury also heard evidence about BVCI’s inefficiencies in completing the work, including a retrospective “post-mortem” analysis by a BVCI employee that identified a number of issues with BVCI’s performance on the project.
The court summarized its view of the evidence and holding as follows:
In sum, BVCI went all in on a theory of damages that supported only a single number—approximately $38.9 million—as BVCI’s costs to complete Boldt’s scope of work. The jury was asked to calculate that figure by relying on numbers that BVCI assigned to Boldt based on subjective cost codes of questionable accuracy. As proof of the reasonableness of those costs, BVCI introduced the testimony of an expert who offered relatively threadbare opinions based on a process that he did not describe with any real specificity. Given the concerns surrounding both BVCI’s numbers and its expert’s review, it was rational for the jury to decide that either or both were untrustworthy. While absolute certainty of the amount of damages is not required, if the jury determined that it could not even reasonably approximate BVCI’s damages with the evidence provided, then it properly awarded nominal damages. Accordingly, the jury’s verdict that there was insufficient evidence for it to determine the fair and reasonable amount of BVCI’s damages was not against the manifest weight of the evidence.
The court went on to reject BVCI’s challenges to various evidentiary rulings and denied its motion for a new trial. A copy of the court’s opinion is located here.
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Republished with permission. The article, “Court Affirms $1 Nominal Damage Award in Wind Farm Construction Dispute” was originally published on BuildSmart by Bradley Arant Boult Cummings LLP. Copyright 2025.