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Sisters of Providence in Washington v. A.A. Pain Clinic12/19/2003
t to warrant an award of lost profits to the plaintiffs?
Decision: Yes, the evidence was sufficient.
5. Was the award of attorney's fees to both Chandler and Borrello under the full reasonable fee standard of the antitrust act erroneous because only Chandler prevailed on an antitrust theory?
Decision: The award was erroneous as to Borrello since he did not prevail on his antitrust claims. He is entitled to attorney's fees under Civil Rule 82 against the Group but not against Providence.
Cross-Appeal Issues
1. Did the court err in granting j.n.o.v. in favor of APMC and Providence on Chandler's claim of intentional interference with contractual relations?
Decision: Yes, Chandler showed a compensable injury for loss of professional time due to the delay of S.H.'s procedure and was at least entitled to nominal damages for this loss.
2. Did the court err in granting j.n.o.v. in favor of Providence on Chandler's claim of violation of the implied covenant of good faith and fair dealing on the ground that Providence's contract was with Chandler rather than A.A. Pain?
Decision: Yes, the court erred because Chandler was practicing through A.A. Pain as his professional corporation.
3. Did the court err in awarding prevailing party fees of $33,183.35 to APMC? Decision: As to Chandler, the court should consider whether APMC was a prevailing party in light of our decision that the grant of j.n.o.v. in favor of APMC on Chandler's claim of intentional interference with contractual relations was erroneous. As to Borrello, the court did not abuse its discretion in making the award. The fact that APMC had an indemnity agreement with Providence under which APMC did not have to pay its own fees did not require that fees not be awarded to APMC.
We proceed to a discussion of these issues in the order that they are set forth.
Appeal Issue 1 Did the court err in failing to instruct the jury that the plaintiffs had the burden of proving the absence of privilege element of the intentional interference with prospective advantage tort?
This issue and the second issue involve the tort of intentional interference with prospective economic advantage. We have identified six elements of this tort. There must be sufficient evidence that: (1) a prospective business relationship existed; (2) the defendant knew of the prospective relationship and intended to prevent its fruition; (3) the prospective business relationship did not culminate in pecuniary benefit to the plaintiff; (4) the defendant's conduct interfered with the prospective relationship; (5) the interference caused the plaintiff's damages; and (6) the defendant's conduct was not privileged or justified.
Providence and the Group claim that the trial court improperly instructed the jury as to the sixth element by placing on them the burden of proving that their conduct was privileged or justified rather than requiring Chandler and Borrello to prove that the defendants' conduct was not privileged or not justified. The trial court indicated in a pretrial ruling that the defendants should have the burden of proving that their conduct was privileged or justified. Instructing the jury in accordance with such a ruling would be erroneous, because the absence of justification or privilege is an element of the tort. Typically the burden is placed on a plaintiff to prove each element of a tort. Specifically, we have stated that "the plaintiff must prove" each of the six elements of the tort. But an examination of the jury instructions as given does not reflect that the jury was instructed that the burden of proving privilege o
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