PRN of Denver, Inc. v. Arthur J. Gallagher & Co.

531 So. 2d 1001, 13 Fla. L. Weekly 2201, 1988 Fla. App. LEXIS 4146, 1988 WL 96068
District Court of Appeal of Florida·Decided September 20, 1988·No. No. 87-2215·Published·Cited by 2 cases

Opinion

DANIEL S. PEARSON, Judge.

PRN of Denver, Inc. (hereafter Denver), whose business it is to provide nurses to hospitals and private persons, sued Arthur J. Gallagher & Co. (Florida) (hereafter Gallagher), the insurance agent of PRN, Inc., Denver’s predecessor. The complaint alleged that Gallagher had tortiously interfered with an advantageous business relationship between Denver and Larkin Hospital, one of Denver’s customers. The heart of Denver’s claim was that Gallagher had wrongfully advised Larkin that the malpractice insurance covering Denver’s nurses — understandably required by Larkin to be in full force and effect — was cancelled, causing Larkin to immediately stop using Denver’s nurses.

At the close of the presentation of Denver’s case, the trial court pretermitted the jury’s consideration of the case by granting the defendant’s motion for a directed verdict based on the following “findings of fact”:

“a. That this Court is [sic] finds that there is no obligation by Larkin Hospital to hire any nurses from PRN, INC. or PRN OF DENVER.
“b. That the Assistant Risk Manager of Larkin Hospital, Regina Noto stated that she did not want to get involved with PRN, INC.’S or PRN OF DENVER insurance problems and she had the right [1002] to terminate any temporary nursing service at any time.
“c. That in the herein cause there is no continuing expectation of business.
“d. That contingencies could and did effect [sic] the duration of the business.
“e. That the nature of PRN, INC.’S damages are purely speculative.
“f. Further, PRN, INC. ceased doing business on January 4, 1984.
“g. The word ‘cancel’ on the certificates of insurance and formal cancellation procedures were not sent by ARTHUR J. GALLAGHER & CO. until January 11, 1984.
“h. PRN OF DENVER began doing business subsequent to January 4th, 1984.
“i. PRN OF DENVER is not the successor corporation to PRN, INC.
“j. There were different stock holders of PRN, INC. and PRN OF DENVER.
“k. That PRN OF DENVER did not buy, or take over the good will of PRN, INC.”

The listed “findings” fall far short of supporting the trial court’s ruling. Some of them — although supported by selected pieces of the conflicting evidence in the case — represent, in our view, a fundamental misconception of the trial judge’s limited role in a jury trial and consequently a usurpation of the jury’s fact-finding function. For example, although it is true that Regina Noto, the head of the nursing department at Larkin Hospital, testified that she did not want to get involved with Denver’s insurance problems and had the right to terminate any temporary nursing service at any time, she also testified that the reason for terminating Larkin’s relationship with Denver was her belief that Denver’s insurance had been cancelled. And while, as the trial court found, contingencies could and did affect the duration of the business, the primary event that affected the duration of Denver’s business with Lar-kin was, in Noto’s words, “[b]ecause I believed they weren’t covered with insur-anee.”1 That belief, the jury could have concluded from at least some of the evidence, was reasonably based on Gallagher’s notice to Larkin that cancellation occurred on January 11, 1984, notwithstanding that the insurance was actually in force for an additional ten-day period during which, if necessary, other insurance could have been arranged.

The order under review is erroneous for another reason. The court apparently concluded as a matter of law that lost profits could not be recovered based upon the profits of a predecessor business, regardless of the similarities between the two businesses. Because of this conclusion, the court disregarded evidence of the similarities between PRN, Inc. and PRN of Denver, Inc., and instead focused on the separateness of the two entities. Thus, while the court correctly noted that PRN, Inc. ceased doing business on January 4, 1984, that Denver began doing business after January 4, 1984, that the stockholders of Denver and PRN were different, and that Denver did not buy or take over the good will of PRN, the court ignored evidence which shows that since 1976, Mr. and Mrs. Willard Wendt, the owners and operators of Denver, operated PRN, Inc. and as of 1983 owned one-half of it, with Gail Miller owning the other half. The Wendts ran PRN’s Miami office, Miller ran the West Palm Beach office, and PRN employed a manager to run the Fort Lauderdale office. When a dispute between the Wendts and Miller arose, PRN, Inc. ceased doing business, and with uninterrupted succession its accounts were transferred to PRN of Denver, Inc. (a company owned and operated by the Wendts since 1980), which had formerly engaged in the same business in Denver and Colorado Springs, Colorado only. PRN of Denver, Inc. continued the Miami and Fort Lauderdale operations, the nursing staff assembled by PRN, Inc. began working for PRN of Denver, Inc., and the employees in the Miami and Fort Laud-erdale offices remained the same and used [1003] the same facilities and equipment. In essence, as the appellant argues: “[I]n the Miami and Fort Lauderdale offices, Willard and Jessie Wendt were PRN. By whatever name, the Wendts operated the Miami and Fort Lauderdale offices with the same employees, the same office space, and the same customers exactly as before.” Indeed, until the insurance brouhaha, Larkin Hospital, PRN’s principal client, was unaware of any difference between PRN, Inc. and PRN of Denver, Inc. This evidence, establishing that PRN, Inc. and PRN of Denver, Inc. were functional equivalents of each other, undermines the trial court’s conclusion that Denver’s proof of lost profits was entirely too speculative to support its claim.

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PRN of Denver, Inc. v. Arthur J. Gallagher & Co., 531 So. 2d 1001, 13 Fla. L. Weekly 2201, 1988 Fla. App. LEXIS 4146, 1988 WL 96068 (Fla. Ct. App. 1988).

531 So. 2d 1001 (PRN of Denver, Inc. v. Arthur J. Gallagher & Co.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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