HEALTH CALL OF DETROIT V ATRIUM HOME & HEALTH CARE
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STATE OF MICHIGAN
COURT OF APPEALS
HEALTH CALL OF DETROIT,
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-CK
Official Reported Version
Before: Whitbeck, C.J., and Sawyer, Murphy, Neff, Jansen, Fitzgerald, and Markey, JJ.
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.
I. Overview
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.1 In this case, the individual defendants, Katrina Johnson,
Dwight Robinson, and Damita Borner (the nurse defendants), provided home nursing services
for an infant, Cierra Harris, as independent contractors of plaintiff Health Call of Detroit (Health
Call). The nurse defendants had independent contractor agreements with Health Call (the Nurse
1
Environair, Inc v Steelcase, Inc, 190 Mich App 289; 475 NW2d 366 (1991).
-1-
Independent Contractor Agreements)2 that included noncompetition clauses. The Nurse
Independent Contractor Agreements were terminable at will by either party.3 Health Call had a
contract with Cierra Harris's mother, Wendy Williams, for the provision of nursing care (the
Williams Care Contract)4 to Cierra Harris. The Williams Care Contract was also terminable at
will by either party.
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.5 The trial court
granted partial summary disposition, but a panel of this Court reversed to allow Health Call's
claims to be reinstated with instructions that, should Health Call prevail on these claims, it could
recover no more than nominal damages to the extent its damages were caused by the loss of the
Williams Care Contract.6 However, the Health Call panel stated that, but for the decision in
Environair, it would not have so limited the damages on these claims on remand, thereby
declaring a conflict under MCR 7.215(J)(2).
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 . . . ."7 I reach the polar
2
The majority opinion refers to these contracts as the "independent contractor agreements."
3
Health Call argued in its initial brief that paragraph 12 of the Nurse Independent Contractors
Agreement, which contained the phrase that the covenant not to compete "shall endure for a
period of two years (24 months) from expiration of this Agreement," meant that this paragraph
was not terminable at will. This language does not obviate the fact that the Nurse Independent
Contractor Agreements were at-will contracts, as evidenced by the language in paragraph 7
giving either party "the right to terminate the Agreement" with a 30-day written notice.
4
The majority opinion refers to this contract as the "home nursing contract."
5
In its count I, Health Call asserted claims of tortious interference with a contract against Atrium
and one of the nurse defendants, Damita Borner. Specifically, Health Call asserted that (a)
Atrium tortiously interfered with Health Call's Nurse Independent Contractor Agreement with
Damita Borner, (b) Atrium and Damita Borner tortiously interfered with Health Call's Nurse
Independent Contractor Agreements with Katrina Johnson and Dwight Robinson, and (c) Atrium
and Damita Borner tortiously interfered with Health Call's Williams Care Contract and "business
relationships and expectancies" concerning Cierra Harris. In its count II, Health Call brought
breach of contract claims against the nurse defendants for allegedly breaching their Nurse
Independent Contractor Agreements by violating their noncompetition agreements in connection
with their continuing work for Cierra Harris as agents of Atrium.
6
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).
7
Ante at ___.
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opposite conclusion. I would therefore reaffirm this Court's decision in Environair, and I would
retain the rule that limits recovery to nominal damages as a matter of law in all actions 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.8 We must
review the record in the same manner as the trial court to determine whether the movant was
entitled to judgment as a matter of law.9 "A motion for summary disposition under MCR
2.116(C)(10) tests whether there is factual support for a claim."10 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.11
B. Environair
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.12 The Environair panel considered Sepanske v Bendix Corp,13 in which
this Court had earlier held that only nominal damages were available for breach of a contract
resulting in the loss of at-will employment because there was no tangible basis on which to
assess damages. The Environair panel concluded that this holding regarding the speculative
nature of damages applied equally to at-will contracts outside the employment context, noting
that a party to an at-will contract may terminate it "at any time without consequence . . . ."14
Thus, the Environair panel affirmed the trial court's limitation of damages for loss of the at-will
sales contract to nominal damages.15
C. Health Call
8
First Pub Corp v Parfet, 468 Mich 101, 104; 658 NW2d 477 (2003).
9
Morales v Auto-Owners Ins Co, 458 Mich 288, 294; 582 NW2d 776 (1998).
10
Shepherd Montessori Ctr Milan v Ann Arbor Charter Twp, 259 Mich App 315, 324; 675
NW2d 271 (2003).
11
Id.
12
Environair, supra at 290-291, 294-295.
13
Sepanske v Bendix Corp, 147 Mich App 819, 828-829; 384 NW2d 54 (1985).
14
Environair, supra at 294.
15
Id. at 293-295.
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The Health Call panel disagreed with the view that attempting to assess damages for the
loss of an at-will contract is necessarily speculative.16 While recognizing that it may be difficult
to prove damages resulting from the termination of an at-will contract, the Health Call panel
noted the established principle that "'damages are not speculative merely because they cannot be
ascertained with mathematical precision. It is sufficient if a reasonable basis for computation
exists, although the result be only approximate.'"17 The Health Call panel observed that an
award of damages for the count I tortious interference claims "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."18 Similarly, the Health Call panel
stated with regard to the count II breach of contract claims that "damages might plausibly be
measured on the basis of the continued provision of care" by the nurse defendants.19
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 contract20 and that an at-will employment contract may
properly contain a noncompetition clause.21 I agree. I note, however, that Health Call spent
considerable effort in its initial brief to the Health Call panel attempting to persuade that panel
that there is abundant authority that allows a cause of action for interference with an at-will
contract. As mentioned above, the Health Call panel agreed, although in cursory fashion,
because it cited Patillo—a case on which Health Call relied. More to the point, however, Atrium
did not seriously dispute the proposition that a plaintiff may sue for alleged tortious interference
with an at-will contract. Indeed, Atrium cited Prysak v R L Polk Co22 for that exact proposition.
Atrium's point in its brief to the Health Call panel was that, even if Health Call could bring such
an action, under the holding in Environair it could recover no more than nominal damages.
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 claim or claims for tortious interference with, or breach of, an
at-will contract can recover more than nominal damages for future lost profits. In the context of
this case, I would break this issue down further:
16
Health Call, supra at 85.
17
Id., quoting Hofmann v Auto Club Ins Ass'n, 211 Mich App 55, 108; 535 NW2d 529 (1995).
18
Health Call, supra at 86.
19
Id.
20
Id. at 83, citing Patillo v Equitable Life Assurance Society of the United States, 199 Mich App
450, 457; 502 NW2d 696 (1993).
21
Health Call, supra at 83, citing MCL 445.774a and Thermatool Corp v Borzym, 227 Mich
App 366, 372; 575 NW2d 334 (1998).
22
Prysak v R L Polk Co, 193 Mich App 1; 483 NW2d 629 (1992).
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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.23 Rather, the disagreement is
with the minor premise. As the Health Call panel put it:
[D]amages for the tortious interference by Atrium and Borner with the
[Nurse Independent Contractor Agreements] between [Health Call] and the [nurse
defendants], and for interference by all defendants with the [Williams Care
Contract] between [Health Call] and Williams, would be neither speculative nor
uncertain, as the time during which the [nurse defendants] continued to provide
23
See, for example, the cases that Atrium cites: Woodyard v Barnett, 335 Mich 352, 358-359; 56
NW2d 214 (1953) (remote, contingent, and speculative damages will not be considered); Theisen
v Knake, 236 Mich App 249, 258; 599 NW2d 777 (recovery not permitted for remote,
contingent, or speculative damages); Hayes-Albion Corp v Kuberski, 108 Mich App 642, 653;
311 NW2d 122 (1981) (damages may not be contingent, speculative, or uncertain), rev'd in part
on other grounds, 421 Mich 170 (1984); Indemnity Marine Assurance Co, Ltd v Lipin Robinson
Warehouse Corp, 99 Mich App 6, 14; 297 NW2d 846 (1980) (lost profits must be reasonably
certain and not unduly speculative).
-5-
nursing services to Harris would operate as a basis for measuring damages.
Similarly, should the fact-finder conclude regarding count II [breach of contract]
that the [nurse defendants] had breached the noncompetition clause of their
respective [Nurse Independent Contractor Agreements] by going to work for
Atrium and that Williams terminated her contract with [Health Call] 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 [nurse defendants].[24]
B. Focusing the Analysis
Although neither Health Call nor the Health Call panel made this point explicitly,25 it is
reasonably clear that the recovery that Health Call seeks here is for future lost profits, that is,
profits that Health Call will not receive after the date of the termination of the Williams Care
Contract. Equally clearly, these future lost profits relate solely to the Williams Care Contract.
Self-evidently, Health Call received no revenue from the Nurse Independent Contractor
Agreements. Rather, under those contracts, Health Call paid the nurse defendants for the
services that they rendered. Thus, there could be no revenue coming directly to Health Call from
the Nurse Independent Contractor Agreements; the only revenue that Health Call received here
came to it under the Williams Care Contract.
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
24
Health Call, supra at 86.
25
However, the majority here does. See, for example, the statement, ante at ___, that "[t]he
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." (Emphasis supplied.) See also the statement, ante at ___,
that "[a]s 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." (Emphasis supplied.)
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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—the billings on the [Cierra Harris] case for two years
would represent $700,000."
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.26
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."27
26
See Environair, supra at 295.
27
Health Call, supra at 85-86.
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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 possible to conclude that this
dissatisfaction might have led Ms. Williams to terminate the Williams Care Contract even had
there been no allegedly tortious interference with that contract by Atrium and Damita Borner.
But this conclusion would be entirely speculative. Similarly, it is entirely speculative—and
entirely open-ended—to conclude that the time during which the nurse defendants continued to
provide nursing services to Cierra Harris might serve as a basis for measuring damages. Under
this formulation, Health Call's lost future profits could continue indefinitely and they would be,
literally, without measure.
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 . . . ."28 The facts with which the majority
begins its analysis relate to a "continuum of care by defendant nurses before, during, and after
the termination of the home nursing contract[.]"29
28
Ante at ___.
29
Ante at ___.
-8-
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 . . . ."30 Let us also assume that this was so.
Standing alone, this additional fact also advances our analysis not at all. Indeed, I note that
while Ms. Williams may have been satisfied with and relied on the nurse defendants, she stated
that she was dissatisfied with the care from Health Call. In any event, and rather self-evidently,
neither the fact that the nurse defendants provided medical care to Cierra Harris for a given time
nor the fact that Ms. Williams was apparently satisfied with and relied on the nurse defendants
constitutes evidence sufficient to survive summary disposition.
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."31
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 the Williams Care Contract at any time, for any reason, or for no
reason at all. That the nurse defendants provided medical care to Cierra Harris for a particular
period and that Ms. Williams was apparently satisfied with and relied on the nurse defendants do
not alter in the slightest the fact that the Williams Care Contract was an at-will contract. In the
end, the majority's "but for" analysis is itself simply an exercise in conjecture, divorced from the
reality that we are here dealing with an at-will contract about whose duration there can be no
reasonable certainty whatsoever.
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."32 But the
issue in this case is not whether there is a sound intellectual basis for actions for tortious
30
Ante at ___.
31
Ante at ___.
32
Ante at ___.
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interference with contractual relations. And the issue is not whether Health Call has asserted
facts concerning Atrium's alleged commission of that tort sufficient to survive summary
disposition. Rather the issue is whether Health Call, when bringing an action for tortious
interference with, or breach of, an at-will contract can recover more than nominal damages for
future lost profits. Health Call's interest in the ability of Ms. Williams to exercise her judgment
without being undermined by defendants' alleged wrongful interference with the Williams Care
Contract has nothing whatsoever to do with that issue.
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 . . . ."33
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,"34 the majority has given 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 engage in unanchored
conjecture regarding the amount of future lost profits on the basis of any evidence that might
support a damage award for such lost profits. There is a word for such conjecture, and that word
is speculation.
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 case, indicating that "plaintiffs may struggle to present
evidence sufficient to proceed to trial on the issue of future damages," and that it will likely be
the rare case that parallels the factual situation here.35 Here the majority protests too much.
Despite its disclaimers, the fact remains that the majority has concluded that a blanket rule
limiting recovery to nominal damages as a matter of law in actions arising our of or related to the
termination of at-will contracts "is not legally sound."36 Moreover, I would be considerably
33
Ante at ___.
34
Ante at ___.
35
Ante at ___.
36
Ante at ___, ___.
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more comfortable with the majority's positioning of this matter as an outlier case if there were
some level of guidance to the trial bench and bar in the majority's opinion regarding the criteria
that a trial judge should use to determine whether to utilize the Environair rule—which
apparently remains generally applicable—or the exception to that rule that the majority creates in
this case. Unfortunately, such guidance is, at least in my view, entirely lacking in the majority's
opinion.
Second, the majority explicitly concedes that its approach invites jury speculation when it
states that
[a]lthough there might be a need to speculate somewhat as to how long the
[Williams Care 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 maintain
the services of defendant nurses.[37]
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."38 Setting aside the dueling metaphors, the fact remains that the
majority's opinion states that the time during which defendant nurses continue to provide nursing
care to Williams and Harris could reasonably serve as the 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."39 I assume that the majority intends that
these words have some meaning. To me the meaning is clear: In the context of this case, any
other evidence that might support a damage award—no matter how remote or conjectural—will
be allowed to go before the jury. If there remains any bar to jury speculation in this case, I am at
a loss to identify it.
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 for
violation of various civil rights statutes or, for that matter, future damages for a wrongful death
37
Ante at ___ (emphasis in the original).
38
Ante at ___.
39
Ante at ___.
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claim involving an at-will employee."40 It was, and remains, my understanding that we were
deciding this case, not some other case. I understand the issue here to be whether a plaintiff who
brings a claim or claims for tortious interference with, or breach of, an at-will contract can
recover more than nominal damages for future lost profits. This dissent goes to the boundaries
of that issue, and no further.
E. Conclusion
I agree with the majority that damages are not speculative merely because they cannot be
ascertained with mathematical precision,41 and that it is sufficient if a reasonable basis for
computation exists, although the result be only approximate.42 I agree that the law does not
require a higher degree of certainty than the nature of the case permits.43 I agree that when the
nature of the 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 that have a reasonable
tendency to show their probable amount.44
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
40
Ante at ___.
41
See ante at ___, citing Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 525; 687 NW2d
143 (2004), and Hofmann, supra at 108.
42
See ante at ___, citing Ensink, supra at 525.
43
See ante at ___, citing Body Rustproofing, Inc v Michigan Bell Tel Co, 149 Mich App 385,
390; 385 NW2d 797 (1986).
44
See ante at ___, citing Body Rustproofing, supra at 391.
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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 tortious
interference by Atrium and Damita Borner with the Williams Care Contract and with Health
Call's "business relationships and expectancies" concerning Cierra Harris.
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.
/s/ William C. Whitbeck
/s/ Kathleen Jansen
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