Pursuant to MCR 7.215(J)(3), this special panel was convened to resolve a conflict between this Court's opinion in Environair, Inc. v. Steelcase, Inc., 190 Mich.App. 289, 475 N.W.2d 366 (1991), and the recently issued opinion in Health Call of Detroit v. Atrium Home & Health Care Services, Inc., 265 Mich.App. 79, 695 N.W.2d 337 (2005), vacated in part 265 Mich.App. 801 (2005) (vacating part III of the opinion pursuant to MCR 7.215[J]). In accordance with MCR 7.215(J)(1), the prior Health Call panel indicated that it was required to follow the precedent of Environair in regard to that panel's holding limiting recovery to nominal damages for tortious interference claims arising from the termination of an at-will contract unrelated to employment. Health Call, supra at 84-85, 695 N.W.2d 337. Were it not for MCR 7.215(J)(1) and the holding in Environair, the Health Call panel would not have limited damages on remand; thus, the panel invoked MCR 7.215(J)(2). Health Call, supra at 80, 86-87, 695 N.W.2d 337. We conclude that a blanket rule limiting recovery to nominal damages as a matter of law in all actions arising out of or related to the termination of at-will contracts is not legally sound, because there may exist factual scenarios in which there is a tangible basis on which future damages
Before delving into the conflict issue, we shall address some preliminary or housekeeping matters. First, as noted in Health Call, supra at 80 n. 1, 695 N.W.2d 337, plaintiff's complaint included a third count alleging breach of fiduciary duty that was dismissed in its entirety, but the dismissal is not challenged on appeal. Next, we wish to clarify and expand on the trial court's summary disposition ruling in this case. With respect to the tortious interference count of the complaint, the court dismissed the claim involving Atrium and Borner as it related directly to the at-will contract between Williams and plaintiff concerning the in-home nursing care of infant Harris (the home nursing contract). The trial court would not permit possible recovery of even nominal damages. Additionally, on the tortious interference claim relative to the independent contractor agreements between plaintiff and defendant nurses, the trial court dismissed any prayer for damages in regard to Atrium and Borner that related to the loss of the home nursing contract. Once again, the court rejected a claim for even nominal damages because "nominal damages were never explained in [plaintiff's] answer or brief in opposition to the motion for summary disposition." The breach of contract claim against defendant nurses arising from the independent contractor agreements was limited by the court in that damages would not be permitted to be measured by plaintiff's loss of the home nursing contract. In sum, the trial court denied any claim for losses or damages associated with the home nursing contract because it was "a contract terminable at-will and the damages are speculative."
In Michigan, tortious interference with a contract or contractual relations is a cause of action distinct from tortious interference with a business relationship or expectancy. Badiee v. Brighton Area Schools, 265 Mich.App. 343, 365-367, 695 N.W.2d 521 (2005); Feaheny v. Caldwell, 175 Mich.App. 291, 301-303, 437 N.W.2d 358 (1989); M Civ. JI 125.01 and 126.01.
Here, plaintiff's tortious interference count, although entitled "Tortious Interference with Existing Contractual Relations," entails and blends both theories of tortious interference. Part of plaintiff's claim alleges that Atrium enticed nurse Borner into breaching her contract with plaintiff and that Atrium and Borner coerced the remaining defendants into breaching their contracts with plaintiff. Plaintiff also alleges that Atrium and Borner interfered with plaintiff's contract, business relationship, and expectancy with regard to Williams and Harris, but without any assertion that Williams breached the at-will home nursing contract when she terminated plaintiff's services. Further, with respect to defendant nurses and their contractual relationships with plaintiff, the complaint alleges interference with the parties' business relationships and expectancies of continued employment. The tortious interference count of the complaint speaks generally of interference with contracts, business relationships, and expectancies. The second count of the complaint is a straightforward breach of contract claim and pertains only to defendant nurses. The issue of damages presented to us ultimately ties directly into the at-will home nursing contract and the loss of future profits under that contract, regardless of whether the underlying theory of liability is breach of contract, tortious interference with a contract, or tortious interference with a business relationship or expectancy.
In Feaheny, supra at 302-304, 437 N.W.2d 358, this Court discussed at-will employment contracts in the context of tortious interference claims:
Likewise, plaintiff here had a manifest interest and expectation in Williams's freedom and ability to exercise her judgment and continue the contractual business relationship with plaintiff for the care of her infant without plaintiff and the relationship being undermined by defendants' wrongful interference. Of course, questions of wrongful interference and liability, which are not issues in this appeal, must be established. There is no dispute that tortious interference with an at-will contract is actionable and, if established, provides a basis to award damages in some form. This brings us to Environair.
In Environair, the plaintiff, Environair, represented manufacturers of various products and components for commercial buildings, and Greenheck Fan Corporation appointed the plaintiff as its exclusive sales agent pursuant to a written sales agreement. The agreement was terminable at will by either party following 30 days' notice. Subsequently, a dispute arose between Environair and the defendant, Steelcase, regarding the amount owing to Environair on a Steelcase construction project in which Environair was a subcontractor. Environair alleged that when it and Steelcase could not amicably resolve the dispute, Steelcase contacted Greenheck and successfully induced it to terminate the Greenheck-Environair sales agreement. Environair proceeded to file suit against Steelcase, alleging tortious interference
The case was remanded to the trial court for entry of judgment in favor of the plaintiff for nominal damages only. [Environair, supra at 293-294, 475 N.W.2d 366 (citations omitted).]
The Environair panel concluded that Sepanske's holding should apply equally to the loss of an at-will contract outside the context of an employment action:
This ruling was directed at Environair's tortious interference with a contract claim. Id. The Court noted that Environair had not specifically challenged the trial court's ruling with respect to this claim, but Environair had argued that Sepanske did not affect its claim for tortious interference with a business relationship or expectancy because the claim was not dependent on the existence of a contract. Id. This Court, citing Feaheny, rejected the argument and held:
As in Environair, plaintiff seeks future damages in the nature of lost profits for defendants' alleged improper role in facilitating Williams's termination of the at-will home nursing contract. The original Health Call panel opined that "Environair
The general rule is that remote, contingent, and speculative damages cannot be recovered in Michigan in a tort action. Sutter v. Biggs, 377 Mich. 80, 86, 139 N.W.2d 684 (1966); Ensink v. Mecosta Co. Gen. Hosp., 262 Mich.App. 518, 524, 687 N.W.2d 143 (2004). A plaintiff asserting a cause of action has the burden of proving damages with reasonable certainty, and damages predicated on speculation and conjecture are not recoverable. Hofmann v. Auto Club Ins. Ass'n, 211 Mich.App. 55, 108, 535 N.W.2d 529 (1995). Damages, however, are not speculative simply because they cannot be ascertained with mathematical precision. Ensink, supra at 525, 687 N.W.2d 143; Hofmann, supra at 108, 535 N.W.2d 529. Although the result may only be an approximation, it is sufficient if a reasonable basis for computation exists. Ensink, supra at 525, 687 N.W.2d 143. Moreover, the law will not demand that a plaintiff show a higher degree of certainty than the nature of the case permits. Body Rustproofing, Inc. v. Michigan Bell Tel. Co., 149 Mich.App. 385, 390, 385 N.W.2d 797 (1986) (stating that lost profits are recoverable as damages on proper proof), citing Allison v. Chandler, 11 Mich. 542, 555 (1863). Thus, "when the nature of a case permits only an estimation of damages or a part of the damages with certainty, it is proper to place before the jury all the facts and circumstances which have a tendency to show their probable amount." Body Rustproofing, supra at 391, 385 N.W.2d 797. Furthermore, the certainty requirement is relaxed where damages have been established but the amount of damages remains an open question. Bonelli v. Volkswagen of America, Inc., 166 Mich.App. 483, 511, 421 N.W.2d 213 (1988). Questions regarding what damages may be reasonably anticipated are issues better left to the trier of fact. Wendt v. Auto Owners Ins. Co., 156 Mich.App. 19, 26, 401 N.W.2d 375 (1986).
After reciting similar principles concerning damages, the Health Call panel explained its disagreement in applying the Environair ruling regarding nominal damages:
Indeed, this case presents a unique factual situation in which the home nursing services provided to Williams and Harris by defendant nurses continued to be provided by those same nurses despite the change in the corporate entities servicing Williams and Harris. Within the four corners of the Environair opinion, there is no indication of such ongoing relationships or links. This, along with the fact that the Greenheck-Environair contract was subject to at-will termination, lent support to the Court's conclusion that there was no tangible basis on which damages could be assessed and thus any damage award would be unacceptably speculative. However, the Health Call panel chose not to distinguish the case from Environair on the basis of the facts. This raises a subject worthy of further inquiry bearing on the analytical framework of this opinion.
We must construe Environair as standing for the proposition that damages arising out of or related to the termination of an at-will contract are speculative as a matter of law in all cases because there is no tangible basis on which damages can be assessed. This interpretation is mandated as a result of the ruling in Health Call and the special order calling for conflict resolution. The Health Call panel found that factual circumstances exist that could reasonably support an award by the trier of fact of future damages that are not overly speculative or uncertain; therefore, plaintiff should not be limited to a recovery of nominal damages pursuant to the summary disposition ruling. Health Call, supra at 85-86, 695 N.W.2d 337. But this Court found itself constrained by Environair
When this Court was polled under MCR 7.215(J) and voted that there was an outcome-determinative issue in conflict that required resolution by a special panel, the Court necessarily adopted the Health Call panel's assessment, implicit in part, that Environair controlled the outcome, that Environair set forth a blanket rule of only nominal damages, and that factual distinctions were irrelevant. If this were not the case, there would be no outcome-determinative conflict issue to resolve.
The evidence established a continuum of care by defendant nurses before, during, and after the termination of the home nursing contract; the only significant change as far as nursing care was the corporate entity supplying defendant nurses to Williams and Harris. Williams testified that she asked Atrium to keep the same nurses on the case. The question thus posed is whether this evidence is sufficient under principles governing summary
Indeed, in their brief on appeal, defendants acknowledged the close relationship between defendant nurses and Cierra Harris and Williams:
Plaintiff had a manifest interest and expectation in Williams's freedom and ability to exercise her judgment and continue the contractual business relationship with plaintiff for her infant's care without having the relationship undermined by defendants' wrongful interference. The period beyond the date of termination during which defendant nurses continued to provide nursing care to Williams and Harris could reasonably serve as a measurement of damages with regard to lost profits, along with any other evidence eventually presented at trial that might support a damage award covering the same or a longer period. Recall that in Environair, the panel would not allow recovery of more than nominal damages accruing beyond the date of termination of the Greenheck-Environair contract. Although Williams testified in her deposition that she was unhappy with one of plaintiff's owners and that she would have made the change in service providers regardless of whether defendant nurses continued providing the care, evidence showing that Williams made a specific request that care be continued by defendant nurses and the fact that there was a continuum of care thereafter minimally created a factual issue on the subject, leaving resolution for trial. In light of the evidence, and considering the nature of this case and the need to estimate damages somewhat, "it is proper to place before the jury all the facts and circumstances which have a tendency to show" the amount of damages. Body Rustproofing, supra at 391, 385 N.W.2d 797. This case presents a clear example against a rule that only nominal damages are recoverable.
The dissent takes us to task, maintaining that we have established a rule "that in all actions arising out of or related to the termination of at-will contracts, juries will be allowed to speculate on the amount of
The main thrust of the dissent is that our ruling will require a jury to engage in speculation and baseless conjecture because Williams could have terminated the home nursing contract at any time for any reason, or she may have continued the contract indefinitely; therefore, it is impossible to ascertain the amount of future lost profits with any certainty. We believe that the dissent demands absolute or too much certainty and seeks exactness; the law permits some level of uncertainty to be resolved by the trier of fact in the context of damage awards.
In Merkur Steel Supply, Inc. v. Detroit, 261 Mich.App. 116, 680 N.W.2d 485 (2004), the plaintiff tenant leased property adjacent to the city's airport and sued the city under a claim of inverse condemnation after it was unable to expand its operations on the property because of the city's actions relative to expanding airport operations. The plaintiff pointed to lost profits from the inability to expand its business as part of valuing the leasehold, and this Court stated, "Because we are dealing with a business that has not come to fruition, some degree of guesswork is necessary and the amount of damages cannot be established for certain." Id. at 136-137, 680 N.W.2d 485. In Bonelli, supra at 511, 421 N.W.2d 213, this Court noted that even if lost profits are difficult to calculate and speculative to some degree, they are still allowed as an item of loss. As early as 1863, our Supreme Court stated that "when, from the nature of the case, the amount of the damages can not be estimated with certainty, or only a part of them can be so estimated, we can see no objection to placing before the jury all the facts and circumstances of the case, having any tendency to show damages, or their probable amount; so as to enable them to make the most intelligible and probable estimate which the nature of the case will permit." Allison, supra at 555-556.
In the context of damages in personal injury and wrongful death actions, there is inherent uncertainty regarding what the future may hold. In Vink v. House, 336 Mich. 292, 296-297, 57 N.W.2d 887 (1953), a personal injury case, the Michigan Supreme Court indicated that the measure of damages attributable to the loss of future earnings is left to the sound judgment of the jury despite the time element being uncertain, and the jury's award will not be disturbed if reasonable and within the range of the testimony and proofs presented. This principle was adopted and incorporated in Henry v. Detroit, 234 Mich.App. 405, 594 N.W.2d 107 (1999), an action under the Whistleblowers' Protection Act, M.C.L. § 15.361 et seq. The Henry panel stated:
In Reisman v. Regents of Wayne State Univ., 188 Mich.App. 526, 542, 470 N.W.2d 678 (1991), a case involving, in part, a claim under the Civil Rights Act, M.C.L. § 37.2101 et seq., this Court stated that "[i]t is well established that, where the fact of liability is proven, difficulty in determining damages will not bar recovery." In Phillips v. Butterball Farms Co., Inc. (After Second Remand), 448 Mich. 239, 253-254, 531 N.W.2d 144 (1995), our Supreme Court found that in employment tort cases involving at-will employment, a plaintiff can recover lost wages and is not limited to nominal damages despite the inherent speculation in assessing the amount of lost wages.
Here, the evidence of a continuum of care and Williams's desire to maintain the status quo with respect to the nurses providing care to her daughter constituted evidence that could support a jury finding that the home nursing contract with plaintiff would have remained intact beyond the date of termination and would not have been terminated on that date. Although there might be a need to speculate somewhat as to how long the contract would have continued in effect beyond the date of termination, or in other words how much in lost profits should be awarded, assuming liability, this issue is within the province of the jury and could be determined on the basis of a finding relative to the intensity of Williams's desire to maintain the existing nursing care and, more specifically, her desire to retain the services of defendant nurses. This finding could be coupled with facts regarding the periods in which defendant nurses continued to care for Harris after the switch in corporate entities, i.e., the date of termination of the home nursing contract, in order to ascertain the extent of lost profits.
The dissenting opinion utilizes hyperbole in its misinterpretation of our holding. We have simply held that a blanket rule limiting recovery to nominal damages as a matter of law in all actions arising out of or related to the termination of at-will contracts is not legally sound. The dissent concludes that we have not only "opened the door to jury speculation," we have "kick[ed] that door down entirely." Post at 866. With all due respect, it is the dissent that would have us bolt the door shut and, if we have opened the door, we have done so to allow in some fresh air. If one subscribes to the dissent's view regarding future damages as always being speculative when they relate to at-will employment
We conclude that a blanket rule limiting recovery to nominal damages as a matter of law in all actions arising out of or related to the termination of at-will contracts is not legally sound. There may exist factual scenarios in which there is a tangible basis on which future damages may be assessed that is not overly speculative despite the at-will nature of the underlying contract. Indeed, this case presents such a situation when viewing the evidence in a light most favorable to plaintiff for purposes of summary disposition.
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
NEFF, FITZGERALD, and MARKEY, JJ., concurred with MURPHY, J.
SAWYER, J. (concurring in part and dissenting in part).
I concur with the result and reasoning contained in Judge Murphy's opinion, especially its conclusion:
But I write separately to express my view that the factual showing necessary to establish that damages are tangible rather than speculative in an at-will contract case is a high burden to meet. Quite frankly, I am skeptical whether this, or any other, plaintiff can meet that burden. It would, I think, be an exceptional case in which the plaintiff will be able to survive summary disposition and receive a jury verdict that does award more than nominal damages. But that said, I join with the majority in concluding that it is inappropriate to preclude plaintiffs as a matter of law from trying.
Therefore, to the extent that the trial court followed the lead of Environair, Inc v. Steelcase, Inc.
I do not, however, join with the majority in its conclusion that plaintiff in the case at bar has necessarily made a sufficient showing to survive summary disposition. I would merely remand to the trial court to reconsider summary disposition, but
WHITBECK, C.J. (dissenting).
The majority today concludes that a blanket rule limiting recovery to nominal damages as a matter of law in all actions arising out of or related to the termination of at-will contracts is not "legally sound." The majority then gives us a new rule. That rule is that in all actions arising out of or related to the termination of at-will contracts, juries will be allowed to speculate on the amount of future lost profits on the basis of any evidence that might support a damage award for such lost profits. I cannot imagine a surer or more certain invitation to baseless conjecture than such a rule, and I respectfully dissent.
As the majority opinion states, this Court convened this special panel under MCR 7.215(J)(3) to resolve the conflict between the vacated portion of the prior opinion in this case and Environair, Inc v. Steelcase, Inc.
According to Health Call, defendant Atrium Home & Health Call Services (Atrium) eventually contacted one of the nurses, which led to all the nurse defendants terminating their Nurse Independent Contractor Agreements with Health Call and then continuing to provide nursing services to Cierra Harris as agents of Atrium. Ms. Williams also terminated the Williams Care Contract. Following these terminations, Health Call sued.
The majority of this special panel today resolves the conflict "in favor of the analysis and reasoning in Health Call" and overrules Environair "to the extent that [it] is read as limiting recovery to nominal damages as a matter of law in all cases in which there is a request for damages arising out of or related to the termination of at-will contracts...."
II. The Cases, the Law, and the Issues
A. Standard of Review
We review de novo a trial court's grant or denial of summary disposition.
Environair involved a claim of tortious interference with a business expectancy that arose when the defendant allegedly induced the termination of an exclusive sales agent agreement that was terminable at will.
C. Health Call
The Health Call panel disagreed with the view that attempting to assess damages for the loss of an at-will contract is necessarily speculative.
D. Defining the Issues
The Health Call panel stated that a plaintiff may properly maintain an action for tortious interference with an at-will employment contract
Therefore, the issue here is not whether a plaintiff may sue for alleged tortious interference with, or breach of, an at-will contract. Rather, I understand the issue here to be whether a plaintiff who brings a
First, can Health Call recover more than nominal damages for future lost profits resulting from the alleged tortious interference (a) by Atrium with the Nurse Independent Contractor Agreement with Damita Borner, (b) by Atrium and Damita Borner with the Nurse Independent Contractor Agreements with Katrina Johnson and Dwight Robinson, and (c) by Atrium and Damita Borner with the Williams Care Contract and with Health Call's "business relationships and expectancies" concerning Cierra Harris?
Second, can Health Call recover more than nominal damages for future lost profits resulting from the alleged breach by the nurse defendants of the noncompetition provisions of the Nurse Independent Contractor Agreements?
III. Damages for Future Lost Profits Resulting from Alleged Tortious Interference with At-Will Contracts
A. Articulating Atrium's Syllogism
Reduced to its essence, Atrium's position in this matter is a syllogism:
Major Premise: Damages based on mere speculation are not recoverable.
Minor Premise: Damages based on the termination of an at-will contract are speculative.
Conclusion: Therefore, damages based on the termination of an at-will contract are not recoverable.
There is no indication that the parties, the Health Call panel, or the majority here seriously disagree with the major premise. Indeed, as Atrium points out, it is black letter law in Michigan that damages may not be based on mere speculation.
B. Focusing the Analysis
Although neither Health Call nor the Health Call panel made this point explicitly,
It is also reasonably clear that Health Call's claim against Atrium and Damita Borner for tortious interference with its "business relationships and expectancies" concerning Cierra Harris stands on the same basis as its claim against these defendants for tortious interference with the Williams Care Contract; that is, if damages for tortious interference with the Williams Care Contract are speculative, so too are damages for tortious interference with its "business relationships and expectancies" concerning Cierra Harris.
In short, the Williams Care Contract is the pivot on which all aspects of this case turn. Any future lost profits that Health Call might suffer derive solely from the termination of the Williams Care Contract. And if those future lost profits can be measured with reasonable certainty, then Health Call should be allowed to present its proofs on this issue to a jury. But if any measure of such future lost profits is merely speculative, then as a matter of law recovery of more than nominal damages cannot go before a jury even if there is a showing of tortious interference with the Williams Care Contract.
C. Measuring Health Call's Future Lost Profits
1. Health Call's Methodology
As Atrium points out, Health Call has attempted to quantify its future lost profits resulting from the termination of the Williams Care Contract. In count I of its complaint, it stated that the "business relationship and expectancies" between Cierra Harris and Health Call "had a reasonably likelihood of future economic benefit" for Health Call of $700,000. This amount was apparently calculated at $350,000 a year "with the expectation that said services would be provided for a period of two-years [sic]." In its answers to Atrium's interrogatories, Health Call again referred to "two year" contracts with the nurse defendants. In a deposition, one of the owners of Health Call, when asked where the amount of $700,000 came from, responded that "[t]he billings based upon —
With all due respect to Health Call, its reasoning leads nowhere. The duration of the noncompetition provision in the Nurse Independent Contractor Agreements has nothing whatsoever to do with the loss of future profits that Health Call might suffer as a result of the termination of the Williams Care Contract. Assuming for the sake of this appeal that, as Health Call asserts, Atrium and Damita Borner tortiously interfered with the Williams Care Contract, and with Health Call's "business relationships and expectancies" concerning Cierra Harris, the fact that Borner promised in her Nurse Independent Contractor Agreement not to compete with Health Call for two years does not bear in any fashion on the issue of Health Call's loss of future profits from the Williams Care Contract. As in Environair, there is no cognizable tortious interference cause of action independent of the contract that is the source of all possible future revenues to the plaintiff — here, the Williams Care Contract.
2. The Health Call Panel's Methodology
The Health Call panel, without subscribing to Health Call's calculation of $700,000 in lost future profits, followed something of the same logic. The Health Call panel stated that "[i]f the finder of fact were to conclude that Williams discontinued the [Williams Care Contract] with [Health Call] and entered into the contract with Atrium only because she wanted the care provided by the [nurse defendants] to continue unabated, such a finding would support the conclusion that the termination of the [Williams Care Contract] had no relation to the fact that the [Williams Care Contract] was at will."
Here, in my view at least, the Health Call panel erroneously relied on the wrong factor: the motivation of Ms. Williams. Let us assume that the sole motivation of Ms. Williams in terminating the Williams Care Contract was to assure that the care the nurse defendants provided to Cierra Harris would continue unabated. Ms. Williams's reasons for terminating the Williams Care Contract were and are entirely irrelevant to the termination of that contract. The Williams Care Contract was at-will and could be terminated at any time for any reason or for no reason at all. Thus, any conclusion by a jury concerning Ms. Williams's motivation would have no bearing whatsoever on the issue of Health Call's future lost profits as a result of the termination of the Williams Care Contract.
If this is so, then the time during which the nurse defendants continued to provide nursing services to Cierra Harris cannot operate as a basis for measuring damages for much the same reason. Let us assume that, but for the allegedly tortious interference by Atrium and Damita Borner with the Williams Care Contract, Ms. Williams would have continued to use Health Call pursuant to that contract. Because that contract was at-will, there can be no reasonable basis on which a jury could determine how long that contractual relationship would continue. Ms. Williams could have terminated the Williams Care Contract the next day, the next month, or the next year, again for any reason or for no reason at all.
Moreover, I note that in her deposition, Ms. Williams stated that she was dissatisfied with the care from Health Call and that she was unhappy with one of the owners of Health Call because of his negative comments about her. It is certainly
3. The Majority's Methodology
The majority initially skirts the question of how a jury might reasonably go about measuring Health Call's lost future profits. Rather, the majority's opinion simply announces its conclusion that the "facts are sufficient to survive summary disposition" and that, therefore, "more than nominal damages may be recoverable...."
Let us assume that there are facts of record that establish such a "continuum of care." Standing alone, these facts would merely establish that the nurse defendants provided medical care to Cierra Harris for a certain period. The majority then refers to "Williams's apparent satisfaction with and reliance on defendant nurses...."
To reason its way past this dilemma, the majority turns to a "but for" analysis. In that analysis, the majority contrasts the nurse defendants' "continuum of care" and Ms. Williams's apparent satisfaction and reliance on the nurse defendants with Ms. Williams's decision to terminate the Williams Care Contract. "[A] reasonable trier of fact," the majority states, "could find that, but for the alleged tortious interferences by Atrium and Borner or the alleged breach of contract by defendant nurses, Williams would have continued using plaintiff pursuant to the contract beyond the date of actual termination because a bond or relationship had developed between Williams, Harris, and the nurses."
Here we enter into the world of what might have happened or, more succinctly, of speculation. It might have happened that Ms. Williams might have chosen to continue her contractual relationship with Health Call indefinitely. It also might have happened that, because Ms. Williams was dissatisfied with Health Call, she might have terminated that contractual relationship the next day, the next month, or the next year entirely because of that dissatisfaction... or, for that matter, entirely because of a passing whim. The blunt fact remains that Ms. Williams could terminate
To buttress its analysis, the majority gives us something of a head fake. Health Call, it asserts, "had a manifest interest and expectation in Williams's freedom and ability to exercise her judgment and continue the contractual business relationship with plaintiff for her infant's care without having the relationship undermined by defendants' wrongful interference."
Ultimately, the majority does make its way to the bottom-line question: How does one reasonably measure the loss of future profits following the termination of an at-will contract? But the majority in essence simply rearticulates the Health Call panel's methodology. "The period," it states, "beyond the date of termination during which defendant nurses continued to provide nursing care to Williams and Harris could reasonably serve as a measurement of damages with regard to lost profits, along with any other evidence eventually presented at trial that might support a damage award...."
First, as I noted in part III(C)(2), under this approach, Health Call's lost future profits could continue indefinitely and would be quite literally without measure. Second, if in its earlier "but for" analysis the majority opened the door to jury speculation, here it kicks that door down entirely. After concluding that a blanket rule limiting recovery to nominal damages as a matter of law in all actions arising out of or related to the termination of at-will contracts is not "legally sound,"
D. The Majority's Response
The majority responds at some length to this dissent. Several of the points in this response are quite interesting. First, the majority places considerable emphasis on the uniqueness of the fact situation in this
Second, the majority explicitly concedes that its approach invites jury speculation when it states that
Pure speculation is, of course, not within the province of any jury. Moreover, the majority invites the jury in this case to speculate on the amount of the award for lost profits on the basis of its speculation about the "intensity" of Williams's desire to maintain the existing nursing care. I can only observe that compound speculation is not like compound interest; it does not get better with use.
Third, the majority responds to my hyperbole with some of its own. Rather than kicking down the door that bars jury speculation, the majority states that it has opened that door "to allow in some fresh air."
Finally, the majority wonders whether I would "reverse case law that allows for more than nominal future damages for at-will employees whose employment is terminated
I agree with the majority that damages are not speculative merely because they cannot be ascertained with mathematical precision,
But here there is no reasonable, or even approximate, basis for computation of Health Call's lost future profits as a result of the termination of the Williams Care Contract. Indeed, there is no certainty at all with respect to such lost future profits. Under such a circumstance, placing all the facts and circumstances surrounding the termination of the Williams Care Contract before the jury could have no tendency to show the probable amount of Health Call's lost future profits. Rather, it would leave the jury with no recourse but to pure speculation about a case that might have no end.
Therefore, I conclude that the reasoning in Environair, a case decided over ten years ago, remains sound, and I would decline to overrule that case. In my view, under Health Call's methodology, under the Health Call panel's methodology, or under the majority's methodology, there is no method by which Health Call's future lost profits for the termination of the Williams Care Contract can be reasonably computed or even estimated. I submit that the majority, despite its best efforts, has not refuted the logic of Atrium's syllogism: damages for the termination of the Williams Care Contract are not recoverable because such damages are inherently speculative.
Therefore, I would conclude that, as a matter of law, Health Call can recover no more than nominal damages for future lost profits resulting from (a) the alleged tortious interference by Atrium with the Nurse Independent Contractor Agreement with Damita Borner, (b) the alleged tortious interference by Atrium and Damita Borner with the Nurse Independent Contractor Agreements with Katrina Johnson and Dwight Robinson, and (c) the alleged
IV. Damages for Future Lost Profits Resulting from Breach of Contract
As I outlined in part III(B), there can be no future lost profits to Health Call as a result of the nurse defendants' alleged breach of the Nurse Independent Contractor Agreements because Health Call derived no profits from those agreements. Any damages for future lost profits that Health Call might suffer from the nurse defendants' breach of those agreements would be entirely derivative of the damages for future lost profits from the termination of the Williams Care Contract. I have argued in part III that such damages would be purely speculative. I do note, however, that Atrium concedes that a plaintiff might be able to recover any recruiting, hiring, or training costs or expenses incurred before an employee's breach of a noncompetition or nonsolicitation agreement.
For these reasons, I dissent.
JANSEN, J., concurred with WHITBECK, C.J.
The parties in this case at times seem to treat the torts of interference with an advantageous business relationship and interference with an existing contract as synonymous. These torts, however, are distinct. . . . Regarding the tort of interference with an advantageous relationship or expectancy, "an advantageous contractual relationship is sufficient, but not necessary, to state a cause of action." [Citation omitted; emphasis in original.]