• Pursuing "Loss of Chance" Damages in a Commercial Dispute
  • January 25, 2011 | Author: David T. Ballard
  • Law Firm: Barnes & Thornburg LLP - Chicago Office
  • In any commercial dispute, a party may seek damages under various theories. Typically, a wronged party will seek damages to be made whole, as if it had not been wronged in the first place. However, it is not always easy to determine make-whole damages in a commercial dispute, and a claimant should carefully assess how to define and calculate its potential damages. Given emerging case law in federal courts, particularly from the Seventh Circuit Court of Appeals, one option for a claimant may be to seek damages based on a “loss of a chance” theory. While such damages are rarely sought in commercial disputes and few courts have reviewed the contours of the theory, loss of a chance damages may provide a fitting framework for certain disputes. Depending on the jurisdiction, this damages theory could present a wronged party in a business dispute with a potential method for recovering its true losses, especially in cases that involve competitive bidding or lost business opportunities.