HEALTH CALL OF DETROIT V ATRIUM HOME & HEALTH CARE
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STATE OF MICHIGAN
COURT OF APPEALS
HEALTH CALL OF DETROIT, d/b/a JADELLS,
INC.,
FOR PUBLICATION
September 8, 2005
9:00 a.m.
Plaintiff-Appellant,
v
ATRIUM HOME & HEALTH CARE SERVICES,
INC.; KATRINA JOHNSON, LPN; DWIGHT
ROBINSON, LPN, and DAMITA BORNER, LPN,
Defendants-Appellees.
No. 244633
Wayne Circuit Court
LC No. 01-135282
Official Reported Version
Before: Whitbeck, C.J., and Sawyer, Murphy, Neff, Jansen, Fitzgerald, and Markey, JJ.
MURPHY, J.
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 NW2d
366 (1991), and the recently issued opinion in Health Call of Detroit v Atrium Home & Health
Care Services, Inc, 265 Mich App 79; 695 NW2d 337 (2005), vacated in part 265 Mich App 801
(2005) (vacating part III of the opinion pursuant to MCR 7.215[J][5]). 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. 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. 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 damages1 may be assessed that are not overly speculative
despite the at-will nature of the underlying contract. The case before us today presents such a
1
For purposes of this opinion, reference to "future" damages pertains to alleged losses or
damages accruing after the date on which the at-will contract was terminated.
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situation when viewing the evidence in a light most favorable to plaintiff for purposes of
summary disposition. Therefore, we resolve the conflict in favor of the analysis and reasoning in
Health Call, and, to the extent that Environair 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 such as those involved here and in Environair, it is overruled.
Accordingly, we reverse and remand to the trial court without limiting, as a matter of law,
plaintiff 's recovery to nominal damages.
Because the special order vacated only part III of the opinion in Health Call, parts I and
II, which address the facts and principles of summary disposition, remain intact. For ease of
reference and continuity, we shall incorporate parts I and II into this opinion by way of quotation
and then proceed with our own independent analysis in part III.
I
Plaintiff is a Michigan corporation that provides nursing and medical
services for home care. Individual defendants, Katrina Johnson, Dwight
Robinson, and Damita Borner, who are licensed practical nurses, entered at-will
independent contractor agreements with plaintiff in which they agreed to provide
home nursing services to plaintiff 's clients. The defendant nurses' respective
contracts contained a noncompetition clause, effective for two years following the
termination of the independent contractor agreements. As relevant to the instant
case, Wendy Williams, the mother of Cierra Harris, an infant, entered into an atwill contract with plaintiff for the provision of twenty-four hour home nursing
services to Harris. The defendant nurses provided the contracted services to
Harris under the independent contractor agreements between the defendant nurses
and plaintiff.
Plaintiff alleges that defendant Atrium Home & Health Care Services, Inc.
(Atrium), which was also in the business of providing home nursing care services,
contacted defendant Borner and urged her to terminate her contract with plaintiff
and persuade defendants Johnson and Robinson to also terminate their contracts
with plaintiff, in order that Atrium could thereafter provide home nursing care
services to Harris. Plaintiff further alleges that the defendant nurses terminated
their respective independent contractor agreements with plaintiff, subsequently
contracted with Atrium, and continued to provide home nursing care services to
Harris after leaving plaintiff 's employ and contracting with Atrium.
In its complaint, plaintiff alleged in count I that Atrium tortiously
interfered with plaintiff 's contract with Borner, that Borner and Atrium tortiously
interfered with plaintiff 's contracts with Johnson and Robinson, and that Borner
and Atrium tortiously interfered with plaintiff 's contract, business relationship,
and expectancies with Williams concerning Harris. Count II alleged that the
defendant nurses breached paragraph 12 of their respective contracts, which
paragraph precluded solicitation of, or competition with, plaintiff 's clients for two
years after the expiration of their respective at-will agreements. Defendants
moved for partial summary disposition pursuant to MCR 2.116(C)(10), asserting
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that plaintiff as a matter of law was limited to a recovery of nominal damages on
its claims.
On count I, the trial court granted summary disposition in favor of Borner
with regard to plaintiff 's claim of tortious interference with the Harris contract,
but permitted the tortious interference claim to proceed against Atrium.
Regarding count II, the trial court granted summary disposition in favor of the
defendant nurses "to the extent" that "the damages [claimed by plaintiff] are
measured by the loss of the [Harris] contract." The trial court determined that
such damages were speculative because they were based on plaintiff 's loss of an
at-will contract to provide services to Harris. The parties stipulated the dismissal
of all remaining claims without prejudice, and this appeal ensued. [Health Call,
supra at 80-82.]
II
On appeal, a trial court's grant or denial of summary disposition is
reviewed de novo. First Pub Corp v Parfet, 468 Mich 101, 104; 658 NW2d 477
(2003). This Court must review the record in the same manner as must the trial
court to determine whether the movant was entitled to judgment as a matter of
law. Morales v Auto Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998).
"A motion for summary disposition under MCR 2.116(C)(10) tests whether there
is factual support for a claim." Shepherd Montessori Ctr Milan v Ann Arbor
Charter Twp, 259 Mich App 315, 324; 675 NW2d 271 (2003). "When deciding a
motion for summary disposition, a court must consider the pleadings, affidavits,
depositions, admissions and other documentary evidence submitted in the light
most favorable to the nonmoving party." Id. [Id. at 82-83.]
III
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, 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
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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 NW2d 521 (2005); Feaheny v
Caldwell, 175 Mich App 291, 301-303; 437 NW2d 358 (1989); M Civ JI 125.01 and 126.01.2
The elements of tortious interference with a contract are (1) the existence of a contract, (2) a
breach of the contract, and (3) an unjustified instigation of the breach by the defendant. Badiee,
supra at 366-367; Mahrle v Danke, 216 Mich App 343, 350; 549 NW2d 56 (1996); Jim-Bob, Inc
v Mehling, 178 Mich App 71, 95-96; 443 NW2d 451 (1989); see also M Civ JI 125.01 (adding
the necessary damage element to the cause of action). The elements of tortious interference with
a business relationship or expectancy are (1) the existence of a valid business relationship or
expectancy that is not necessarily predicated on an enforceable contract, (2) knowledge of the
relationship or expectancy on the part of the defendant interferer, (3) an intentional interference
by the defendant inducing or causing a breach or termination of the relationship or expectancy,
and (4) resulting damage to the party whose relationship or expectancy was disrupted. Badiee,
supra at 365-366; Mino v Clio School Dist, 255 Mich App 60, 78; 661 NW2d 586 (2003);
Feaheny, supra at 301; see also M Civ JI 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
2
In Bonelli v Volkswagen of America, Inc, 166 Mich App 483, 496 n 4; 421 NW2d 213 (1988),
this Court acknowledged the distinction between the two torts:
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.]
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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.3 Accordingly, the question is
whether damages for future lost profits, beyond those deemed nominal, can flow from the
termination of plaintiff 's business relationship with Williams, which relationship was necessarily
premised on the home nursing contract.
In Feaheny, supra at 302-304, this Court discussed at-will employment contracts in the
context of tortious interference claims:
The next question we must resolve is whether there can be interference
with an employment contract that is terminable at will. We answer this question
in the affirmative.
At-will employment contracts have posed some analytical difficulties in
tortious interference cases, particularly where an employee seeks damages caused
by his discharge. When viewed under the tortious interference cause of action
requiring a breach of contract, the courts have held that a discharge from
employment is an insufficient basis upon which to establish the claim since no
breach arises from the termination. On the other hand, when viewed as a
subsisting relationship that is of value to the employee and will presumably
continue in effect absent wrongful interference by a third party, the majority
opinion in Tash v Houston, 74 Mich App 566, 569-570; 254 NW2d 579 (1977), . .
. held that an at-will contract is the proper subject of an actionable tortious
interference claim. Under this view, the employee has a manifest interest in the
freedom of the employer to exercise his or her judgment without illegal
interference or compulsion and it is the unjustified interference by third persons
that is actionable. . . .
4 Restatement Torts, 2d, § 766, comment (g), pp 10-11, similarly takes the
position that an at-will contract can be improperly interfered with, but that the fact
that the contract is terminable at will makes it closely analogous to interference
with prospective contractual relations claims and is a factor to be taken into
account in determining damages. . . .
We agree with the rationale of the Restatement and Tash and, therefore,
hold that an at-will employment contract is actionable under a tortious
interference theory of liability. . . . Since we are here faced only with a question
of defendants' liability, we express no view on what damages, if any, plaintiff
3
To the extent that plaintiff claims tortious interference with a contract, as opposed to
interference with a business relationship or expectancy, against Atrium and Borner as it relates
solely and directly to the home nursing contract, the claim cannot survive because there is no
assertion that Williams breached the home nursing contract.
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could recover for tortious interference with the contract. We hold only that
tortious interference with an at-will contract is actionable. The basis of our
holding is that an at-will employee who enjoys the confidence of his or her
employer has the right to expect that a third party will not wrongfully undermine
the existing favorable relationship. [Citations omitted.]
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 with a business
relationship, tortious interference with a contract, and an independent claim for exemplary
damages. The trial court ruled that Environair could only recover nominal damages for any
claim of damages accruing after the date the contract was terminated. Environair, supra at 290291.
This Court affirmed, relying on Sepanske v Bendix Corp, 147 Mich App 819; 384 NW2d
54 (1985).
In [Sepanske], the plaintiff was awarded damages for future lost earnings
in an action for breach of a promise that he would be restored to either his former
or a similar position. While this Court agreed that a breach of contract claim had
been established, it vacated the award of damages. The Court found that the
plaintiff 's expectation was that he would be restored to the same or similar at-will
position, one which the employer was free to alter or terminate without
consequence. The Court held that the jury's damage assessment in such a
situation was purely speculative:
"There is no tangible basis upon which damages may be assessed where
plaintiff 's expectation was for an at-will position which could have been changed
or from which he could have been terminated without consequence."
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 (citations
omitted).]
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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:
While Sepanske involved an employment relationship, its holding
regarding the speculative nature of damages is just as applicable to a
nonemployment situation also involving an at-will contractual relationship. Just
as the employment relationship in Sepanske could have been terminated at any
time without consequence, thereby providing "no tangible basis upon which
damages may be assessed," so could the exclusive sales contract between
Environair and Greenheck. Thus, in the present case, we agree with the trial court
that there could be "no tangible basis upon which damages may be assessed" that
would be any less speculative. [Environair, supra at 294.]
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:
[B]ecause the nature of the relationship between Environair and
Greenheck was one founded upon a contract that was terminable at will, we
conclude that there was no cognizable tortious interference cause of action
independent of that contract, because Environair's mere subjective expectation of
the continuation of the contract could not justify an expectation any greater.
Therefore, we conclude that the trial court did not err in granting
defendant's motion to limit damages. [Environair, supra at 295.]
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 requires this Court to
find that plaintiff could not recover more than nominal damages on its breach of contract and
tortious interference claims, insofar as they pertain to the termination of the at-will contract to
provide home nursing services to Harris." Health Call, supra at 84-85.4
4
In its supplemental brief, plaintiff raises various points and arguments concerning Environair
that demand only cursory consideration. Plaintiff argues that the ruling at issue in Environair is
dictum because, as indicated above, Environair had not specifically challenged the trial court's
ruling with respect to its tortious interference with a contract claim; therefore, there was no true
conflict, and the Health Call panel was free to hold as it believed appropriate. Plaintiff also
maintains that Environair is no longer good law following our Supreme Court's ruling in Phillips
v Butterball Farms Co, Inc (After Second Remand), 448 Mich 239; 531 NW2d 144 (1995),
which addressed an at-will employment contract, retaliatory discharge, future damages,
Sepanske, and Environair. Plaintiff further contends that the Environair decision relative to
(continued…)
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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 NW2d 684 (1966); Ensink v
Mecosta Co Gen Hosp, 262 Mich App 518, 524; 687 NW2d 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 NW2d 529 (1995). Damages, however, are not speculative simply
because they cannot be ascertained with mathematical precision. Ensink, supra at 525;
Hofmann, supra at 108. Although the result may only be an approximation, it is sufficient if a
reasonable basis for computation exists. Ensink, supra at 525. 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 NW2d 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. 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 NW2d 213 (1988). Questions regarding what
damages may be reasonably anticipated are issues better left to the trier of fact. Wendt v AutoOwners Ins Co, 156 Mich App 19, 26; 401 NW2d 375 (1986).
After reciting similar principles concerning damages, the Health Call panel explained its
disagreement in applying the Environair ruling regarding nominal damages:
Here, plaintiff has alleged in count I that Atrium persuaded Borner to
terminate her agreement with plaintiff and to begin working with Atrium, that
Atrium and Borner together persuaded Johnson and Robinson to leave plaintiff 's
employ for Atrium, and that Atrium thereafter persuaded Williams to end her
contract with plaintiff and to instead contract with Atrium for the provision of
home nursing services to Harris. If the finder of fact were to conclude that
Williams discontinued the contract with plaintiff and entered into the contract
with Atrium only because she wanted the care provided by the defendant nurses
to continue unabated, such a finding would support the conclusion that the
termination of the home nursing services contract had no relation to the fact that
the contract was at will. Under these circumstances, damages for the tortious
interference by Atrium and Borner with the independent nursing contracts
between plaintiff and the defendant nurses, and for interference by all defendants
(…continued)
nominal damages was fact-specific and not applicable as a matter of law to the facts presented in
this case. Although arguably there may be merit to one or more of plaintiff's stances, this Court
has already determined that a conflict exists that is outcome determinative and that requires
resolution by this special panel. 265 Mich App 801. To accept any one of plaintiff's arguments
as valid would be to rule that there was no actual outcome-determinative conflict, and the law of
the case precludes us from ruling contrary to the special order previously issued by this Court.
See generally Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001).
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with the nursing services contract between plaintiff and Williams, would be
neither speculative nor uncertain, as the time during which the defendant nurses
continued to provide nursing services to Harris would operate as a basis for
measuring damages. Similarly, should the fact-finder conclude regarding count II
that the defendant nurses had breached the noncompetition clause of their
respective contracts by going to work for Atrium and that Williams terminated
her contract with plaintiff and entered an agreement with Atrium only to secure
continuity of care, damages might plausibly be measured on the basis of the
continued provision of care for Harris by the defendant nurses. Therefore, were
we not constrained by the holding in Environair, we would find that plaintiff is
not limited merely to the recovery of nominal damages for tortious interference
with its independent [contractor] agreements with the defendant nurses or for
breach by the defendant nurses of the noncompetition clause of the independent
[contractor] agreements. [Health Call, supra at 85-86.]
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. But this Court found itself
constrained by Environair to hold that only nominal damages are recoverable, essentially as a
matter of law. Id. at 86. This holding necessarily reflected that the Court did not believe that it
was at liberty to factually distinguish the case from Environair with respect to facts outside those
establishing that an at-will contract was terminated upon which damages are sought. In other
words, termination of an at-will contract allows, at best, only nominal damages. Future lost
profits under the contract are not recoverable regardless of all the other surrounding
circumstances. Therefore, the conflict that existed in the minds of the Health Call panel was that
Environair permitted no more than nominal damages any time a party sought damages arising
from or related to the termination of an at-will contract, while it, the Health Call panel, would
allow more than nominal damages under the right factual conditions, present here according to
the panel, despite the at-will nature of the underlying contract.
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When this Court was polled under MCR 7.215(J) and voted that there was an outcomedeterminative 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.5 For example, if the facts present in our particular case do not warrant
more than an award of nominal damages, it does not matter whether there is a blanket rule of
nominal damages as opposed to a rule that requires the issue of damages to be ascertained on a
case-by-case basis; plaintiff loses. For this reason, and pursuant to principles regarding the law
of the case doctrine, we are hesitant to explore whether the facts support a conclusion that future
lost profits are speculative and uncertain. If we were to find that future damages were uncertain
and speculative under the given facts, we would in fact be deciding that there did not actually
exist an outcome-determinative conflict issue. Our directive is to resolve a legal conflict, not to
reassess the facts. It appears to us that the conflict issue more properly and precisely stated is
whether it is appropriate to limit recovery to nominal damages as a matter of law in all cases in
which the damages sought arose out of or are related to the termination of an at-will contract.
But, because we agree with the Health Call panel's assessment that the facts are sufficient to
survive summary disposition and that more than nominal damages may be recoverable,6 and
because this case presents a sound basis for rejecting any rule of nominal damages only, we shall
discuss the facts as they relate to the law of damages without fear of treading on the sanctity of
the special order that convened this panel.
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 disposition and MCR
2.116(C)(10) to create an issue of fact on damages for future lost profits such that they are not
overly speculative or uncertain. Viewing the evidence in a light most favorable to plaintiff,
Shepherd Montessori, supra at 324, we find the evidence sufficient to survive summary
disposition. Considering the continuum of care and Williams's apparent satisfaction with and
reliance on defendant nurses, a reasonable trier of fact could find that, but for the alleged tortious
interference 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.
5
"Special panels may be convened to consider outcome-determinative questions only." MCR
7.215(J)(3)(a) (emphasis added).
6
By agreeing with the Health Call panel that more than nominal damages might be recoverable
under the facts, we are reinforcing the position that an outcome-determinative conflict issue
exists.
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Indeed, in their brief on appeal, defendants acknowledged the close relationship between
defendant nurses and Cierra Harris and Williams:
Cierra's mother also requested that the nurses continue providing Cierra
with medical care, only through Atrium instead of Health Call.
The reason for this request was that from the time Cierra was discharged
from the hospital and [placed] into her foster home until the time Health Call was
terminated from her case, the Nurses provided Cierra with the necessary twentyfour (24) hour nursing care. As a result of providing such care to Cierra, the
Nurses developed a deep understanding of her special needs and the skills
required to respond to these special needs. Cierra responded very well to the care
the Nurses provided to her. Although Cierra's mother was dissatisfied with
Health Call, she and the foster mother were very happy with the care the three (3)
Nurses provided to Cierra. [Citations to record deleted.]
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. 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 future lost profits on the basis of any evidence that might support a
damage award for such lost profits." Post at ___ (emphasis in original). We first note that our
opinion specifically indicates that this case presents a unique factual situation, and we foresee
that in other cases involving tortious interference with at-will contracts, the plaintiffs may
struggle to present evidence sufficient to proceed to trial on the issue of future damages, with
nominal damages being the limit of any recovery. We do think it would suffice if a plaintiff
presents documentary evidence in which the party who terminated an at-will contract specifically
indicates that it was completely satisfied with the plaintiff 's services under the contract and
would have continued the contract indefinitely but for the wrongful interference. It will likely be
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the rare case that parallels the factual situation here. The dissent's position effectively permits a
party to tortiously interfere with at-will contracts whenever the party pleases and in whatever
manner chosen without fear of financial repercussions.
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 NW2d 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. In
Bonelli, supra at 511, 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
NW2d 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 NW2d 107 (1999), an
action under the Whistleblowers' Protection Act, MCL 15.361 et seq. The Henry panel stated:
In regard to the economic damage award, the only specific argument
defendants make is that there were no guarantees plaintiff would have been
employed until the age of seventy. Our Supreme Court has stated that the
measure of damages for the loss of future earnings where the time element is
uncertain is based on the sound judgment of the trier of fact and, if reasonable,
will not be disturbed. Vink v House, 336 Mich 292, 297; 57 NW2d 887 (1953). In
the case at bar, plaintiff testified that he wanted to work until the age of seventy,
and there was other testimony indicating that other members of the police
department worked in excess of thirty-five years and attained the age of seventy.
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As a result, the trial testimony supports the economic damage award, which
appears to be reasonable. [Henry, supra at 415-416.][7]
In Reisman v Regents of Wayne State Univ, 188 Mich App 526, 542; 470 NW2d 678
(1991), a case involving, in part, a claim under the Civil Rights Act, MCL 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 NW2d 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 ___. 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 contracts, one wonders whether the dissent
would reverse case law that allows for more than nominal future damages for at-will employees
whose employment is terminated in violation of various civil rights statutes or, for that matter,
future damages for a wrongful death claim involving an at-will employee. Future damages for
lost wages have traditionally been allowed in situations in which there is no dispute of fact that
the injured party was an at-will employee. Simply because damages cannot be ascertained with
7
In Goins v Ford Motor Co, 131 Mich App 185, 199; 347 NW2d 184 (1983), a wrongful
discharge case in which the jury calculated damages using salary differences for the 40 years of
the plaintiff's life expectancy, this Court found that "[t]o so calculate based upon relevant
evidence was not improper or overly speculative."
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mathematical certainty does not make them unacceptably speculative. It is for this reason that
what damages may reasonably be anticipated is an issue better left for the trier of fact.
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.
/s/ William B. Murphy
/s/ Janet T. Neff
/s/ E. Thomas Fitzgerald
/s/ Jane E. Markey
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