A contractor, hired by a developer to perform certain earthwork, priced the job with the idea the he could remove excess fill from the job site and haul it to another project on which he was also working. An easy way to make some money, or so he thought. Unfortunately, the job ran amuck, literally. When the developer terminated the contractor, only a little over 50% of the work had been performed. But a large amount of fill was still needed for the contractor’s other project. The termination effectively cut off the contractor’s ability to meet the second job’s requirements, and resulted in lost profits.
It’s one thing to allege such damages; it’s something else to actually show you suffered such losses. Lost profits must be proven with a reasonable degree of certainty if they have any chance of being recovered. They cannot be the result of prediction or conjecture. The amount of surplus fill being hauled to the contractor’s second job was never defined as anything other than what was not needed on the first project. Since the contractor never completed that first project, the proof to determine what amount of fill would actually be left over was going to be just an estimate. There could be no proof of actual surplus fill or corresponding profits lost, and unfortunately for the contractor, there could be no recovery for lost profits.