Tort Law

This page within Virginia Tort Case Law is a compilation of cases reported by the Virginia Supreme Court and summarized by Brien Roche dealing with the topic of Loss of Profits. For more information on loss of profit claims see the pages on Wikipedia.

Loss of Profits-Statutes

See Va. Code § 8.01-221.1. 

Loss of Profits-Cases

2006 Saks Fifth Ave., Inc. v. James, Ltd., 272 Va. 177, 630 S.E.2d 304. 

In this breach of fiduciary duty and conspiracy action wherein one of Plaintiff’s sales person was hired away by a competing company, Plaintiff must prove a causal connection between the Defendant’s wrongful conduct and must prove the damages asserted. In this instance, the Plaintiff proved damage but did not present sufficient evidence of the causal connection between the alleged breach and the resulting damages. All Plaintiff established was that the loss of profits were due to the sales person no longer being with the Plaintiff. This fact alone was not sufficient since the sales person was an at will employee and he was free to stop working for the Plaintiff at anytime. 

1999 ITT Hartford Group, Inc. v. Virginia Fin. Assocs., 258 Va. 193, 520 S.E.2d 355. 

Plaintiff (VFA) acted as broker between ITT Hartford and Med Pro Insurance to market an insurance product that was to be jointly marketed between Hartford and Med Pro. The insurance company thereafter offered plaintiff a finders fee but not percentage of premiums. Trial court admitted testimony projecting future income from joint venture between Hartford and Med Pro even though there was no earnings history. This projection of earnings over next 17 years was in error and was purely speculative. The witness making the economic projections was not an economist, had performed no statistical studies, had consulted no actuaries regarding premium calculations, had performed no market analysis. There was no fraud in this case. Plaintiff proceeded without clear agreement as to his compensation in order to bring the parties together. Parties agreed that plaintiff would be treated fairly and with trust. These promises and statement about future events were not fraudulent. 

1995 Commercial Bus. Sys. v. Bellsouth Servs., 249 Va. 39, 453 S.E.2d 261. 

Conspiracy claim involving interference with contract. Plaintiff presented evidence as to profit if in fact contract had been awarded and performed based in part upon past performance. “New Business Rule” not applicable in this instance since plaintiff was an established business with some track record. 

1994 Hop-In Food Stores v. Serv-N Save, Inc., 247 Va. 187, 440 S.E.2d 606. 

Trespass case resulting in loss of profits. Loss of profits is recoverable provided proved with reasonable certainty. There can be no recovery for loss of profits when it is uncertain that there would have been any profits at all. In this case it is uncertain whether plaintiff would have earned any profits even if there had been no trespass as alleged. As such no recovery allowed for loss of profits.

1992 Goldstein v. Kaestner, 243 Va. 169, 413 S.E.2d 347. 

Loss of profits must be established with reasonable certainty. Plaintiff need not prove exact amount, but present sufficient evidence to permit jury to make reasonable estimate of damages. This case involved loss of profits of ongoing business which had changed ownership. Profit history under prior ownership was admissible. 

1989 Murray v. Hadid, 238 Va. 722, 385 S.E.2d 898. 

Fraud case. Plaintiff endeavored to establish damages by evidence of what purchasers of this real estate eventually made in developing the property. Plaintiff had no track record in this business and therefore no way to gauge future profits. Damages held to be too speculative. 

1983 Sachs v. Hoffman, 224 Va. 545, 299 S.E.2d 343. 

Expert testimony was sufficient to support award of damages for rental losses resulting from removal of equipment from building used for food processing and catering. 

1976 Baines v. Parker, 217 Va. 100, 225 S.E.2d 403. 

Record shows evidence was adduced regarding loss of profits, that defendant did not object thereto, nor introduce any evidence contradicting quantum of damages computed thereby. Not error to grant instruction on such damages. 

1975 Kay Adv. Co. v. Olde London Transp. Co., 216 Va. 273, 217 S.E.2d 876. 

Prospective profits of new or unestablished nonindustrial business cannot be recovered.

1973 Mullen v. Brantley, 213 Va. 765, 195 S.E.2d 696. 

Damages for breach of contract involving loss of business from opening pizza parlor can only be based on speculation and conjecture. Profits derived from similar operations at other locations do not present reasonable basis upon which to judge with any reasonable degree of certainty what profit would have been. 

1966 Phillips v. Stewart, 207 Va. 214, 148 S.E.2d 784. 

Plaintiff injured when struck in crosswalk; claimed that because he could not care for his cattle he was forced to sell them at loss. Such loss held too remote and speculative to be considered proximate result of defendant’s act. 

1961 Boggs v. Duncan, 202 Va. 877, 121 S.E.2d 359. 

Breach of contract claim. Witnesses testified that loss of profits would be $6,000. Such an opinion, unsupported by any data, facts or figures, is insufficient to prove with required certainty alleged loss of profits. 

1960 Gill v. Haislip, 201 Va. 840, 114 S.E.2d 603. 

Plaintiff unable to return to work for six weeks. His employer would only hold job open for two weeks. Plaintiff lost job. Instruction on damages limited recovery to six weeks lost wages. 

1958 Hoge v. Anderson, 200 Va. 364, 106 S.E.2d 121. 

In assessing damages for loss of wages in personal injury action, only gross wages are to be considered and not net wages. 

1956 Worrie v. Boze, 198 Va. 533, 95 S.E.2d 192. 

In cases involving injury to business or loss of profits, where existence of loss has been established, absolute certainty in proving damages is not required. Where evidence shows decrease in net profits and patronage and loss of customers to defendant, this evidence was sufficient to allow jury to make intelligent estimate of damage suffered by plaintiff.

1953 United Constr. Workers v. Laburnum, 194 Va. 872, 75 S.E.2d 694. 

Award for loss of profits was upheld where loss had been established with reasonable certainty. This was not new, unpredictable venture but one where estimated profits were reasonably ascertainable. Generally accepted rule is that such loss of profits must be established with reasonable certainty. Where plaintiff claims damages for alleged permanent destruction of its business relationship with client, mere fact that plaintiff has done business with client for two years at annual profit of $25,000 does not support finding that this relationship would have continued over years. To support recovery, volume of future business must be capable of being estimated with reasonable certainty. 

1950 E.I. DuPont DeNemours & Co. v. Universal Moulded Prods. Corp., 191 Va. 525, 62 S.E.2d 233. 

Breach of warranty action (under pre-UCC law). Fundamental requirements for recovery of loss of profits: (1) damages must be established with reasonable certainty; (2) breach of contract (or warranty) must be direct and proximate cause of damage which must be naturally and directly traceable to act of wrongdoer; (3) consequences of wrongful act must have been reasonably foreseeable by parties at time of execution of contract. Discussion of several cases dealing with this issue. 

1948 Haywood v. Massie, 188 Va. 176, 49 S.E.2d 281. 

Profits are recoverable if established with reasonable certainty and not remote, speculative, contingent or uncertain.