02-1319 Teff d/b/a Teff Chiropractic, et al. v. Unity Health Plans Insurance Corp.

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“First, the court was not precluded from taking into account the entire history of Unity’s conduct simply because it had decided on May 1 to give Unity one more chance to comply with its orders. That decision does not necessarily mean that the conduct leading up to that point did not warrant a default judgment; rather, it may simply mean that the court decided not to impose that sanction at that time. Unity, with its new counsel, made no attempt to explain why its prior violations were justifiable.

“Second, the record supports the court’s determination that Unity acted unreasonably in continuing to have the first attorney represent it, and thus was responsible for suddenly having to find new counsel who was not in a position to comply with the May 1 order: there is no evidence that Unity did not know of the violations of the prior orders, and it was reasonable for the court to infer either that Unity did know or should have known.

“Third, the court did not impose a stricter standard for in-house counsel, but was appropriately taking into account the record before it, from which the court could reasonably infer that Unity had other attorneys available, and thus there was no excuse for not responding to court orders. The reference to a solo practitioner as a different situation did not establish a different standard, but was simply the use of a contrasting example to explain why Unity did not have the excuse of insufficient personnel for its failure to comply with court orders.”

Further, we conclude that the trial court correctly decided that the provisions on the reconciliation payments expressed in the addendum governed the computation of reconciliation payments for 1995.

In addition, we hold that the trial court did not err in allowing plaintiff chiropractors to testify on the lost capitation and lost reconciliation payments for 1997, the year that defendant cancelled their contract, and in relying on that knowledge.

“On those points, their testimony was based on detailed records they kept in the course of their business, and on the knowledge and experience they had acquired from running their chiropractic businesses, and that is sufficient.”

And, defamation damages paid to plaintiffs in the amount of $10,000 each was reasonable. We agree with the trial court that plaintiffs did not have to present evidence that the harm to their professional reputations and standing translated into a loss of income.

However, we conclude that the trial court erred in allowing prejudgment interest on the amount awarded to compensate for lost revenues in 1997 because those damages were neither liquid nor liquidable.

Judgment and order affirmed in part, reversed in part and remanded.

Recommended for publication in the official reports.

Dist IV, Dane County, Sumi, J., Vergeront, P.J.

Attorneys:

For Appellant: Thomas M. Pyper, Madison; Jeanne M. Armstrong, Madison

For Respondent: Mark A. Frankel, Madison; Charles W. Giesen, Madison; James D. Peterson, Madison