Brookeside Ambulance, Inc. v. Walker Ambulance Serv., L-95-096

• Decision Date: 28 June 1996
• Docket Number: No. L-95-096,L-95-096
• Citation: 112 Ohio App.3d 150,678 N.E.2d 248
• Parties: BROOKESIDE AMBULANCE, INC. d.b.a. Rumpf Ambulance Service, Appellant, v. WALKER AMBULANCE SERVICE, Appellee.
• Court: Ohio Court of Appeals

Page 150

112 Ohio App.3d 150

678 N.E.2d 248

BROOKESIDE AMBULANCE, INC. d.b.a. Rumpf Ambulance Service, Appellant, v. WALKER AMBULANCE SERVICE, Appellee.

No. L-95-096.

Court of Appeals of Ohio Sixth District, Lucas County.

Decided June 28, 1996.

William R. Lindsley, Toledo, and Robert V. Seymour, Southfield, MI, for appellant.

George E. Leonard, Kansas City, MO, and Charles Bloom, Columbus, for appellee.

HANDWORK, Judge.

This case is on appeal from the March 9, 1995 judgment of the Lucas County Court of Common Pleas, which granted a directed verdict to appellee, Walker Ambulance Service ("Walker"). On appeal, appellant, Brookeside Ambulance Service, Inc., d.b.a. Rumpf Ambulance Service ("Brookeside"), asserts the following assignments of error:

"I. Trial court erred by striking the testimony of plaintiff's expert witness, James Weber, CPA, with respect to plaintiff's damage.

"II. Trial court erred by granting defendant's motion for directed verdict with respect to plaintiff's claim of tortious interference."

Brookeside sued Walker, asserting in its complaint that Walker, with an intent to appropriate Brookeside's business, tortiously interfered with Brookeside's business contracts, business relationships, and economic expectancies.

With respect to its relationship with REMSNO (Lucas County's emergency medical dispatch organization that is now known as Lucas County EMS), Brookeside introduced the following evidence at trial relating to Walker's alleged actions of run jumping, improperly (under the county dispatch system rules) using day cars for emergency medical transportation, and opening short-term stations next to Brookeside for the sole purpose of cutting off its income.

Several witnesses testified as to the requirements under REMSNO rules regarding dispatching. According to them, REMSNO, now known as Lucas County EMS, dispatches a first responder to the scene of an accident following a 911 call. The first responder, i.e., the fire department rescue squad, assesses the patient and decides if a life-threatening situation exists. If immediate transportation is not necessary, the first responder contacts the dispatcher and requests a private ambulance to transport the patient to the hospital. REMSNO contacts the private ambulance service closest to the scene and asks if it has a car in service. If it does not, the next nearest ambulance service is contacted. Under the REMSNO contract, the ambulance service is required to respond truthfully. Responding falsely and sending a car from another station is known as "run jumping." Even after REMSNO ceased to exist on December 31, 1991, the ambulance companies agreed to operate under the REMSNO contract. Lucas County EMS continued to operate under the same dispatch system.

Brookeside was incorporated in 1991 to provide basic life support services (non-life-threatening transportation). Donald Kish, Brookeside's president, estimated that in the summer of 1991, ninety-eight percent of Brookeside's runs were initiated by 911 calls. The company began with one station and later that year opened a second station, both located in heavy traffic areas that were not close to any competitor stations. Shortly after the second station was opened, Walker opened two new stations close to Brookeside's stations, thereby cutting Brookeside's response area in half. Walker closed these two stations shortly after Brookeside closed its stations. One of Walker's emergency medical technicians testified that she never saw a night shift enter when she left at midnight from one of these stations. She did not know if the station was open twenty-four hours a day or not. However, at all the other stations, she would see the relief crew entering as she departed. The owner of an ambulance station located near one of Brookeside's testified that Gary Walker contacted him in the fall of 1991 about renting the station but rejected the owner's offer to sell the property. Kish calculated that Brookeside lost six hundred seventy-eight runs due to Walker's blocking stations.

There was some evidence presented that the telephone company had incorrectly listed Brookeside's telephone number in its directory. However, witnesses testified that arrangements had been made for the forwarding of all calls and that REMSNO, the hospitals, and nursing homes were aware of the correct number. Furthermore, there was evidence that Brookeside did not have a twenty-four-hour dispatcher and that it did not have an answering service until the summer of 1991. A REMSNO dispatcher testified that he could recall not being able to get through to Brookeside.

Two former dispatchers for Walker testified that Walker instructed them to keep track of anything that interfered with Walker taking a run, including the fact that Brookeside took the run. One dispatcher testified that he never falsely indicated to a REMSNO dispatcher that a car was in service when it was not and was not aware of any other Walker dispatcher having done so. However, an emergency medical technician for Walker testified that she had participated in run jumps.

Kish calculated that Walker improperly jumped one thousand seventy-seven runs that would have gone to Brookeside and that the run jumping caused them to lose a considerable amount of profit. However, his calculations were based in part on the log records of Walker. A Walker dispatcher testified that these records were not updated daily to show whether the car dispatched had been moved from the station where it began the day. Consequently, he believed that the records sometimes incorrectly indicated the station from which the car was dispatched.

Kish further calculated that Walker's action of improperly using day cars caused Brookeside to lose 1,702 runs. Kish interpreted the REMSNO contract as requiring that the ambulance services use a "24-hour car" (one that is in service twenty-four hours a day, seven days a week, fifty-two weeks a year) for emergency calls. However, other witnesses testified that all the ambulance services, including Brookeside, used their day cars (cars not in service one hundred percent of the time) for such purposes.

Kish complained to REMSNO, but no action was ever taken against Walker. A REMSNO director testified that he had received a similar complaint from the Toledo Fire Department against Walker.

With respect to Brookeside's claim that Walker attempted to persuade certain nursing homes and hospitals to use its services rather than Brookeside's, Brookeside introduced the following evidence:

Kish testified that his business with Golden Haven Nursing Home ended abruptly. A charge nurse at the nursing home testified that she always used Brookeside but discontinued doing so after meeting with her supervisor. An employee of Riverside Hospital testified that Villa North Nursing Home attempted to persuade Riverside to use only Walker for transporting its patients, but dropped the issue after Riverside indicated that it had an exclusive contract with Brookeside. The president of Riverside testified that Walker attempted to reopen negotiations for discounted service after the contract with Brookeside had been executed.

Finally, Brookeside alleged that Walker discouraged investment in Brookeside and defamed Brookeside personnel to cause people not to want to use Brookeside. However, there was no evidence presented to prove this claim.

Brookeside presented expert testimony on damages. A question was raised as to the witness's qualification to testify. After Brookeside closed its case, the trial court granted Walker's motion to strike the expert's testimony and directed a verdict in Walker's favor on the ground that there was no evidence of a tortious interference and no evidence of damages.

We begin by addressing Brookeside's second assignment of error. Brookeside argues that the court erred by granting a directed verdict in Walker's favor.

When ruling on a motion for directed verdict, the court must construe the evidence most strongly in favor of the party against whom the motion is directed and grant it only if reasonable minds could only conclude that the movant is entitled to judgment under the applicable law. Civ.R. 50(A)(4); The Limited Stores, Inc. v. Pan Am. World Airways, Inc. (1992), 65 Ohio St.3d 66, 73, 600 N.E.2d 1027, 1033-1034. The court does not weigh the evidence or determine the credibility of the witnesses when ruling on the motion. Sharp v. Norfolk & W. Ry. Co. (1995), 72 Ohio St.3d 307, 649 N.E.2d 1219.

The tort of interference with a contractual relationship was first recognized by the Ohio Supreme Court in Kenty v. Transamerica Premium Ins. Co. (1995), 72 Ohio St.3d 415, 650 N.E.2d 863. In that case, the court adopted the definition of the tort found in 4 Restatement of the Law 2d, Torts (1979) 7, Section 766:

"One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract."

In another case that same year, the court expanded the tort to include business relationships as well as contracts. A & B-Abell Elevator Co. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council (1995), 73 Ohio St.3d 1, 651 N.E.2d 1283. From these two cases, we derive the elements of the tort: (1) a business relationship or contract; (2) the wrongdoer's knowledge of the relationship or contract; (3) the wrongdoer's intentional and improper action taken to prevent a contract formation, procure a contractual breach, or terminate a business relationship; (4) a lack of privilege; and (5) resulting damages. Id. at 14, 651 N.E.2d at 1294; Kenty, supra. See, also, Khosla v. Magruder Mem. Hosp. (June 30, 1993), Ottawa App. No. 92-OT-053, unreported, 1993 WL 306570.

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