Defendant Philip Jackson, d/b/a Phil Jackson & Son, appeals from a judgment of the District Court (Lewiston, O’Rourke, A.R.J.), affirmed by the Superior Court (Androscoggin County, Delahanty, C.J.), awarding damages in the amount of $20,-786 to plaintiff John Marchesseault. On appeal, Jackson asserts that the District Court erred by admitting certain expert testimony and employed an inappropriate measure of damages resulting in an excessive award. Jackson further contends that Marchesseault failed to mitigate his damages and that the court erred by not taking such failure into account. We find no merit in these contentions and affirm the judgment.
The facts developed at trial may be summarized as follows: In the summer of 1989, Marchesseault entered into an oral agreement with Jackson for the construction of a foundation for Marchesseault’s new home in West Minot. Jackson agreed to build the foundation and a frost wall for the garage and to pour concrete slabs for the house and garage. Marchesseault agreed to pay Jackson $5800 for labor and materials. Jackson performed in an unworkman-like manner. Among other defects, the foundation walls were out of square, out of plumb, bowed, filled with “honeycombs,” uneven, and of unequal heights. Unsat *97 isfied with Jackson’s performance and his proposed remedies for the faulty foundation, Marchesseault refused to let Jackson complete the job. At this point, Marches-seault had already paid Jackson (or material suppliers) $5069 of the total $5800 contract price. The concrete pads for the garage and cellar had not yet been poured, nor had the garage frost wall been constructed.
After seeking the opinion of a construction consultant as to whether he should destroy the foundation and have it rebuilt or remedy the major structural defects and go ahead with the construction of the house, 1 Marchesseault opted to remedy the major defects and hired another contractor to complete the work left unfinished by Jackson. Marchesseault spent $7517 to repair the foundation, cosmetically conceal the interior and exterior flaws, build the garage frost wall, and have the concrete slabs poured.
In September 1989, after the home was completed, Marchesseault filed a complaint in District Court alleging that Jackson breached the parties’ contract, performed in an unworkmanlike manner, and acted negligently in the construction of the foundation. Marchesseault sought damages for the costs he expended to repair the foundation and complete the job, and the resulting diminution in value of the home subsequently set upon the foundation. During the one-day trial, plaintiff’s expert, Richard Potvin, a real estate broker, testified over Jackson’s objection that the visible flaws in the foundation and cellar of the home caused a reduction in the property’s value on the order of 15%, or about $20,875. The court found that Jackson did not fully perform his obligations under the contract and acted in a negligent and unworkmanlike manner. The court awarded Marches-seault the $7517 expended to repair and complete the job plus $14,000 representing the “diminution in the fair market value of the house by reason of the loss of living space, the change in ceiling height, the dampness, the visual impact, the humidity, the water seepage, and the uneven ceiling.” The court offset $731 (the unpaid balance on the contract) and ordered that judgment be entered for Marchesseault and against Jackson for $20,786.
Jackson appealed the judgment to the Superior Court, which affirmed the District Court. Jackson now seeks review in this court.
I.
Jackson first contends that the District Court erred by admitting the opinion testimony of Marchesseault’s expert, Richard Potvin. Jackson objected to the admission of this testimony on the grounds that Potvin was not properly qualified to render an expert opinion on the diminution in value of the house and further, that Potvin had an insufficient basis for his opinion. The determination by the trial court whether a witness possesses the requisite qualifications to form an expert opinion is factual and will be reviewed on appeal for clear error.
State v. Libby,
II.
Jackson next contends that the District Court erred by awarding Marches-seault both cost of repair damages and damages representing a diminution in value of the home. As a general rule, damages for defective performance under a construction contract may be measured either by the reasonable costs of reconstruction and completion in accordance with the contract, or by the diminished value to the owner of the building by reason of the defects.
Parsons v. Beaulieu,
Although in the usual case the injured party is awarded either costs of repair or diminution in value damages,
see Smith v. Urethane Installations, Inc.,
In Maine Civil Remedies, the authors state:
In some situations, the owner will, even after retaining another contractor to complete the work, still not have as good a structure as she had contracted for. The owner could then presumably claim the difference in value between what was contracted for and what was actually received, in addition to the cost of completing the work.
Horton & McGehee,
Maine Civil Remedies
§ 12.6-2.2(b) at 12-21 (1991). This ease presents such a situation. Marchesseault paid to have another contractor complete the job and attempted to repair the structural defects in the foundation. While the repairs were not a total failure, the foundation remained in “less than contracted for”
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condition. Because a foundation is built specifically to support a house, it is foreseeable that a faulty foundation would diminish the value of the house.
See Rubin v. Matthews Int’l Corp.,
Other courts have had occasion to approve the award of both measures of damages in certain circumstances.
See Meyer v. Alexander & Baldwin, Inc., 56
Haw. 195,
If plaintiff is to be made whole, that is, to have what it contracted for or its equivalent, it is entitled to recover both the cost of repairing the building and the resultant diminution in its value subsequent to the repair.
Italian Econ. Corp.,
III.
Finally, Jackson asserts that Marchesseault, by going ahead with the construction of the house, failed to mitigate his damages and that the District Court erred by not taking account of such failure in its damage award. As a general rule, a plaintiff has a “duty”
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to use reasonable efforts to mitigate his or her damages.
Lindsey v. Mitchell,
The entry is:
Judgment affirmed.
All concurring.
Notes
. The consultant estimated that it would cost about $3000 to demolish the foundation and cart it away, and about another $6000 to have it rebuilt. Another contractor testified that it would cost about $5200 to rebuild the foundation walls anew. It is not clear from the record whether either contractor's estimate included the pouring of the concrete slabs and construction of the garage frost wall.
. Jackson does not quarrel with the court’s award of costs to complete performance and remedy the defects, but rather contends that factoring in loss in value damages was improper.
. We have stated that the standard measure of damages for defective performance under a construction contract is the difference in value between what was bargained for and what was received.
Wimmer v. Down East Properties, Inc.,
. Commentators have suggested that reference to a "duty” to mitigate is misleading as no liability is incurred by failing to take such steps. See E.A. Farnsworth, Contracts § 12.12 at 859 (1982).
. The record shows that Marchesseault planned to build the house himself and had set aside a specific amount of time away from his other work to do so. Marchesseault testified that at the time, given the constraints imposed by his other responsibilities, the better course of conduct was to repair and complete the construction rather than demolish the foundation and start over. We cannot say that the District Court was compelled to find that Marches-seault's decision was unreasonable.