Feature Story BY JAKE P. SKAGGS
Texas Case Reiterates Repairs Must Be ‘Reasonable and Necessary’
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 avail- able 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 Texas Supreme Court disagreed,
however, stating the legal standard for
damages is reasonable and necessary.
The plaintiff’s experts merely explained
their processes for arriving at the cost
to repair the house by using the Xactimate program, researching local materials, and relying on information from
previous jobs. They did not provide
evidence that these costs were reasonable and necessary. Without some other
evidence that the costs were reasonable
and necessary—the Court referenced
using competitive bids—there simply
was no evidence to support the plaintiff ’s damages.
Therefore, how does one prove prop-
erty damages in Texas? The Court did
not list what types of evidence is suf-
ficient to prove that the damages were
“reasonable and necessary,” but the opin-
ion referenced those terms on numerous
occasions. Reading between the lines, a
damage expert should be prepared to tes-
tify that each element of damage is “rea-
sonable and necessary.”
So it is necessary to meet with your
damages expert early on—be it a claims
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
The plaintiff presented two damages experts: a mold remediation expert and a local general contractor who had 30 years of
experience. The Xactimate estimates from both experts were admitted as evidence. The defendant did not present any expert testimony challenging the amount of the plaintiff’s damages. During
trial, the plaintiff’s experts testified regarding their estimated costs to rebuild, and that the
Xactimate prices were within one to two percent of the costs in Corpus Christi. However,
neither expert gave an opinion that repairs were necessary or that the costs were reasonable.
In fact, the experts never said the words “reasonable and necessary.” The defendant then appealed on the grounds there was no evidence the cost to repair was reasonable and necessary.
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. F Jake P. Skaggs
adjuster or a building consultant—to specifically identify all of the information the
expert relied upon to arrive at his or her
estimate. If that projection is solely based
on an Xactimate estimate, then the court
may not consider it sufficient evidence. K
The 14th Court of Appeals in Houston held that although the plaintiff’s experts did not
opine that the costs were reasonable and necessary, there was sufficient evidence—namely
the estimates and testimony—to support the jury’s finding that the costs were reasonable
Jake P. Skaggs is a member in the subrogation and recovery department of Cozen
O’Connor, where he has worked since 2004.
He may be reached at firstname.lastname@example.org.