(This article is written by Jake P. Skaggs, a member in the subrogation and recovery department of Cozen O'Connor.)

In a subrogation case, what type of evidence is required to prove real property damages at trial? Many times, the only evidence of damages that is readily available is the property adjuster's Xactimate estimate and testimony. As of late, this type of evidence is no longer sufficient. In McGinty v. Hennen, for instance, the Texas Supreme Court held that the plaintiff must provide specific evidence that the cost to repair the damaged property was reasonable and necessary.

The Case
In Texas, the plaintiff can recover the reasonable and necessary costs to repair damaged real property, as long as there is not economic waste—meaning the cost to rebuild the property does not exceed the value of the property. The plaintiff in McGinty alleged his house had developed mold because of water leaks from several construction defects. The plaintiff then sued the builder for breach of the construction contract. He claimed that his damages were in excess of $600,000 for mold remediation and the repair work. 

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