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Health Call of Detroit v. Atrium Home & Health Care Services9/8/2005
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.
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, 86-87; 139 NW2d 684 (1966); Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 524; 687 NW2d 143 (2004)(citation omitted). 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 (citation omitted); 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 (citation omitted). 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), quoting Allison v Chandler, 11 Mich 542, 554 (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 is an issue better left to the trier of fact. Wendt v Auto-Owners 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 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 non-competition clause of their respective contracts by going to work for Atrium and
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