Joe L. Webster United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon Plaintiff, The Moses H. Cone Memorial Hospital Operating Cooperation's ("Cone Health") motion for partial summary judgment (Docket Entry 100), and Defendant Conifer Physician Services, Inc.'s ("Conifer") motion for partial summary judgment. (Docket Entry 103.) Both matters have been fully briefed and are ripe for disposition. For the reasons stated herein, the Court will deny Conifer's motion for partial summary judgment and grant in part and deny in part Cone Health's motion for partial summary judgment.

I. BACKGROUND

Cone Health filed its original complaint on August 8, 2013, alleging that Conifer breached the parties' Master Outsourcing Services Agreement and Supplement 1 ("Agreement") and that Cone Health was terminating the Agreement as a result of Conifer's breach. (See generally Compl., Docket Entry 1.) Cone Health alleged a claim for breach of contract (and the supplement) (Counts I and II), and also alleged five separate causes of action for declaratory judgment (Counts III through VII). (Id. ¶¶ 75-96.) Conifer filed a motion to dismiss Counts III through VII of the Complaint. (Docket Entry 10.) The Court thereafter granted Conifer's motion (Docket Entry 27), and the parties submitted a Joint Rule 26(f) Report which the Court adopted. (Docket Entries 28, 30.) After discovery commenced, Cone Health filed a consent motion to amend its Complaint, which was granted. (Docket Entries 39, 42.) After the Amended Complaint was filed (Docket Entry 45), Conifer answered and asserted a counterclaim against Cone Health. (Docket Entry 48.) Thereafter extensive discovery took place in this matter and both parties submitted motions for partial summary judgment. (Docket Entries 100, 103.) In its motion, Cone Health seeks partial summary judgment as to damages on Conifer's counterclaim. (Docket Entry 100.) Conifer's motion seeks partial summary judgment as to: (1) liability on its counterclaim, (2) all claims for relief in Cone Health's Amended Complaint except the claim for a performance adjustment; (3) and other relief the Court finds appropriate. (Docket Entry 103.)

According to the Amended Complaint, Cone Health provides health care services through a network of hospitals and physicians in North Carolina. (Am. Compl. ¶ 5, Docket Entry 45.) Conifer provides revenue management, health information management, and billing services to health care providers like Cone Health. (Id. ¶ 6.) On August 8, 2011, Cone Health and Conifer entered into a Master Agreement (the "Agreement") under which Cone Health outsourced certain claims management and accounts receivable functions to Conifer. (Id. ¶¶ 9-10; Master Agreement & Supplements, Ex. A, Docket Entry 45-1.) Thereafter, the parties executed "Supplement 1" to the Agreement, under which Conifer began providing billing and claims management services to physicians owned by, or affiliated with, Cone Health. (Suppl. 1, Ex. A at 32-33.) The term of the Agreement under Supplement 1 was five years from the commencement date of Supplement 1. (Id. at 32.)

On May 10, 2013, Cone Health notified Conifer of several purported breaches of the Agreement and threatened to terminate it for cause as of July 12, 2013. (Am. Compl. ¶ 58; see also May 10 Letter, Ex. A, Docket Entry 51-1.) The alleged breaches include Conifer's failure to properly manage Cone Heath's accounts receivable ("A/R"), failure to implement a denial management team to process denied claims, failure to provide adequate customer service to patients, failure to provide daily reconciliation, and improper billing of Medicaid beneficiaries. (Id. ¶¶ 19-54.) Under the Agreement, Cone Health (with written notice) could terminate the Agreement for cause if Conifer failed to fix a material breach within sixty (60) days, or Cone Health could terminate if a material breach was incurable. (Id. ¶ 56; Master Agreement § 15.2(a).) The Agreement also provided for termination without cause at any time after the three-year anniversary of the Agreement, provided that Cone Health give six (6) months written notice. (Master Agreement § 15.2(c).) After receiving notice of Cone Health's intent to terminate the Agreement, Conifer responded by letter, addressing the issues in the notice from Cone Health. (Am. Compl. ¶ 59; see also May 30 Letter, Ex. B, Docket Entry 51-2.)

Cone Health concluded that Conifer did not have the ability to cure its breaches, nor had Conifer remedied the issues raised in the May 10 letter. (Id. ¶ 60.) Cone Health agreed to suspend its termination notice until August 12, 2013, to allow the parties to discuss termination transition resolutions. (Id. ¶ 63.) Cone Health then filed this action on August 8, 2013, alleging that Conifer breached the Agreement.

Conifer filed an Answer and also asserted a counterclaim in this action alleging that Cone Health's termination was improper, and thus, a breach of the Agreement. (Counterclaim ¶ 3, Docket Entry 48 at 7.) Conifer alleges that it was (1) never in material breach of the Agreement and (2) that it cured, or offered to cure any purported breach before Cone Health terminated the Agreement. (Id.) Conifer seeks compensatory damages in excess of $20 million dollars. (Id. ¶ 46.)

Some background undisputed facts are as follows: Cone health was initially struggling with revenue cycle performance prior to the execution of the Agreement. (Kenneth Boggs Dep., Ex. 5 47:5-48:5, Docket Entry 105-4 at 7.) Revenue cycle functions include scheduling, registration, billing for medical services, collecting payment, account adjustments, and collections follow-up. (Ex. 2, Docket Entry 105-1 at 33.) Cone Health's in-house struggles with billing and collection services were primarily the result of staffing issues. (Boggs Dep., Ex. 5 47:8-12.) In 2010, Cone Health decided to change its electronic healthcare records system from the "GE/IDX" platform to the "EPIC" platform. (Mark R. Gorham Dep., Ex. 6 44:19-25, Docket Entry 105-4 at 16.) EPIC was set to go "live" on February 1, 2012. (Id. 73:12-19.) As part of Cone Health's efforts to improve revenue cycle functions, it also entered into the Agreement with Conifer. Conifer begin services on the GE/IDX system and later moved to the EPIC system. (See Suppl. 1, § VI.) Conifer's services included A/R follow-up, payment posting, and customer service. (Ex. 8, Docket Entry 105-4 at 65-66.) Cone health was still responsible for some revenue cycle functions. (Id.)

What transpired (and why it transpired) after Conifer begin performing under the Agreement is the root of considerable disagreement, but it is clear that by early 2013, Cone Health was unsatisfied with Conifers' performance and intended to terminate its agreement with Conifer. Cone Health hired another revenue cycle management company in March 2013, Alleviant, and on April 18, 2013, a Cone Health executive, Jeffrey F. Jones, contacted Conifer's executive, John O'Donnell, regarding terminating the Agreement. (Jeffrey Jones Dep., Ex. 76 271:1-272:20:, Docket Entry 121-15 at 13-14.) Mr. O'Donnell wanted something in writing and on May 10, 2013, Mr. Jones sent a letter to Conifer regarding Cone Health's grounds for termination. (May 10 Letter at 2-3.) Thereafter, Conifer provided a response to the issues raised in the letter whereby Conifer denied that Cone Health could terminate the Agreement with cause. (May 30 Letter at 2-7.) Cone Health wrote a follow-up letter on June 14, 2013 expressing further disagreement. (June 14 Letter, Ex. C, Docket Entry 51-3.) Cone Health then filed the pending action against Conifer in August 2013.

II. DISCUSSION

Both parties have moved for partial summary judgment in this matter. (Docket Entries 100, 103.) Summary judgment is appropriate when there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Zahodnick v. Int'l Bus. Machs. Corp., 135 F.3d 911, 913 (4th Cir. 1997). The party seeking summary judgment bears the initial burden of coming forward and demonstrating the absence of a genuine issue of material fact. Temkin v. Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991) (citing Celotex v. Catrett, 477 U.S. 317, 322 (1986)). Once the moving party has met its burden, the non-moving party must then affirmatively demonstrate that there is a genuine issue of material fact which requires trial. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). There is no issue for trial unless there is sufficient evidence favoring the non-moving party for a fact finder to return a verdict for that party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986); Sylvia Dev. Corp. v. Calvert County, Md., 48 F.3d 810, 817 (4th Cir. 1995). Thus, the moving party can bear his burden either by presenting affirmative evidence or by demonstrating that the non-moving party's evidence is insufficient to establish his claim. Celotex, 477 U.S. at 331 (Brennan, dissenting). When making the summary judgment determination, the Court must view the evidence, and all justifiable inferences from the evidence, in the light most favorable to the non-moving party. Zahodnick, 135 F.3d at 913; Halperin v. Abacus Tech. Corp., 128 F.3d 191, 196 (4th Cir. 1997). However, the party opposing summary judgment may not rest on mere allegations or denials, and the court need not consider "unsupported assertions" or "self-serving opinions without objective corroboration." Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962 (4th Cir. 1996); Anderson, 477 U.S. at 248-49. "When faced with cross-motions for summary judgment, the court must review each motion separately on its own merits 'to determine whether either of the parties deserves judgment as a matter of law.'" Rossignol v. Voorbaar, 316 F.3d 516, 523 (4th Cir. 2003) (citation omitted). Conifer's Motion for Partial Summary Judgment

Conifer seeks partial summary judgment as to: (1) liability on its counterclaim, (2) all claims for relief in Cone Health's Amended Complaint (except the claim for a performance adjustment); (3) and other relief the Court finds appropriate. (Docket Entry 103.) Cone Health argues that Conifer's motion should be denied because "there is a question of fact for the jury as to whether [Conifer] has cured, could cure, or was even trying to cure its material breach at the time of termination." (Pl.'s Resp. Br. at 24, Docket Entry 118.)

The parties do not dispute that the any alleged breach of the Agreement is governed by North Carolina law. To establish liability for a breach of contract claim under North Carolina law, there must be (1) an existing valid contract and (2) breach of the terms of that contract. Poor v. Hill, 138 N.C. App. 19, 26, 530 S.E.2d 838, 843 (2000). Neither party here is in dispute as to whether a valid contract existed. However, the crux of this case surrounds the ultimate determination of whether Conifer or Cone Health breached the Agreement. Under North Carolina law, when one party materially breaches a bilateral contract, the non-breaching party is excused from further performance. McClure Lumber Co. v. Helmsman Constr., Inc., 160 N.C. App. 190, 198, 585 S.E.2d 234, 239 (2003); Lake Mary Ltd. P'ship v. Johnston, 145 N.C. App. 525, 537, 551 S.E.2d 546, 555 (2001); Coleman v. Shirlen, 53 N.C. App. 573, 577-78, 281 S.E.2d 431, 434 (1981). "Whether a breach is material or immaterial is ordinarily a question of fact." McClure Lumber, 160 N.C. App. at 198, 585 S.E.2d at 239 (citation omitted). "Interpreting a contract requires the court to examine the language of the contract itself for indications of the parties' intent at the moment of execution." State v. Philip Morris USA Inc., 363 N.C. 623, 631-32, 685 S.E.2d 85, 90-91 (2009) (citation omitted). Thus, "[i]f the plain language of a contract is clear, the intention of the parties is inferred from the words of the contract." Walton v. City of Raleigh, 342 N.C. 879, 881, 467 S.E.2d 410, 411 (1996). Liability

As a threshold issue, the Court must first determine the scope of this suit. Here, Cone Health alleges that Conifer has breached § 11.2 of the Agreement which sets forth the performance of services that Conifer has obligated itself to. (See Master Agreement § 11.2.) Cone Health further asserts that it rightfully terminated under § 15.2(a), and that Conifer's alleged breach should not be narrowed to the six specific violations set forth in the letters dated May 10, 2013 and June 14, 2013, as the basis of Cone Health's termination was for Conifers' failure to effectively manage the A/R, "its fundamental responsibility under the [Agreement]." (Pl.'s Resp. Br. at 25.) Under the Agreement, Cone Health (with written notice) could terminate the Agreement for cause if Conifer failed to fix a material breach within sixty (60) days, or if a material breach was incurable. (Master Agreement § 15.2(a).) By letter dated May 10, 2013, Cone Health informed Conifer of its intent to terminate the Agreement for its breach of its warranties of performance set forth in § 11.2. (May 10 Letter at 2.) Cone Health further stated "[t]he specific conduct that constitutes [Conifer's] breach includes, without limitation:" (1) Conifer's management of A/R days trending was well below industry standards; (2) Conifer failed to assign a dedicated denial management team; (3) Conifer has failed to provide daily reconciliations; (4) Conifer failed to get approval and give prior notice of write-offs; and (5) Conifer improperly engaged in balance-billing. (Id.) In closing, Cone Health further stated that "[t]ermination of the Agreement will be effective on July 12, 2013 unless [Conifer] has fully cured all breaches to Cone Health's satisfaction before that date." (Id. at 3.)

North Carolina law generally enforces valid notice and cure clauses in a contract. Dishner Developers, Inc. v. Brown, 145 N.C. App. 375, 378, 549 S.E.2d 904, 906, aff'd, 354 N.C. 569, 557 S.E.2d 528 (2001); see also Jordan's Constr., Inc. v. Forest Springs, LLC, 738 S.E.2d 454, 2013 WL 601112, at *2 (N.C. Ct. App. Feb. 19, 2013) ("There is no evidence in the record indicating that defendant provided plaintiff with written notice of plaintiff's breach of the contract and the right to cure as required by the Agreement."). While the Court recognizes the language of Cone Health's May 10 letter, including its "without limitation" verbiage, a fair reading of § 15.2(a) would require Cone Health to provide Conifer notice of all of the performance deficiencies that required curing, or that could not be cured. Here, Conifer could only be held liable for what it was properly put on notice of and failed to cure, or put on notice of breaches that were incurable. LCA Dev., LLC v. WMS Mgmt. Grp., LLC, 789 S.E.2d 569, 2016 WL 3406519, at *2 (N.C. Ct. App. June 21, 2016) (unpublished table decision) ("[T]he default could not be a material breach until after [defendant] was given notice and an opportunity to cure-were it otherwise, the cure provision in the contract would be meaningless."). Thus, the scope of this civil action is limited to breaches of the Agreement which Conifer was put on notice to cure, or breaches which Cone Health gave written notice that were incurable.

Having considered the evidence presented with regard to issues raised in Cone Health's letters, the Court concludes that there is a genuine issue of material fact as to whether Conifer cured the violations set forth in Cone Health's notice letter, or whether there were breaches that could not be cured. North Carolina Court law looks at the Restatement (Second) of Contracts for guidance on cure issues. Weaver's Asphalt & Maint. Co. v. Williams, 710 S.E.2d 709, 2011 WL 705150, at *4 (N.C. Ct. App. Mar. 1, 2011) (unpublished table decision) (quoting Rest. 2d § 237 cmt. B (1981)); see also Reeder v. Carter, 226 N.C. App. 270, 276, 740 S.E.2d 913, 918 (2013) (quoting Rest. 2d § 369 (1981)). Cases from other jurisdictions applying Restatement (Second) of Contracts § 237 have found that a party in breach does not cure unless it begins to substantial perform its contractual obligations. See e.g., Anacapa Tech., Inc. v. ADC Telecommunications, Inc., 241 F. Supp. 2d 1016, 1019-20 (D. Minn. 2002) ("While case law on the question [of what is means to cure] is sparse, it is clear that to cure a material breach means to engage in subsequent conduct that substantially performs or performs without a material failure."); see also Volvo Trucks N. Am. v. State Dep't of Transp., 323 Wis. 2d 294, 314, 779 N.W.2d 423, 433 (2010) ("A reasonable interpretation of the statutory word 'cured' means the breaching party is to stop the offending conduct and to substantially perform the contract. No other interpretation of the word 'cured' is more reasonable."); Fleetwood Folding Trailers, Inc. v. Coleman Co., 38 Kan. App. 2d 30, 43, 161 P.3d 786, 798 (2007) (considering "substantial performance" described in Anacapa). "Cure does not require perfect performance. Anacapa, 241 F. Supp. 2d at 1020. Here, under § 15.2(a)(i) of the Agreement, Cone Health could properly terminate the contract if Conifer failed to cure to a level of substantial performance. Also, Cone Health could terminate the Agreement pursuant to §15.2(a)(ii) if it gave written notice of breaches that could not be cured.

After reviewing the evidence presented, it is unclear whether Conifer substantially performed, thereby curing the purported breach of the warranties of performance. Substantial performance of the issues raised in Cone Health's correspondence are collectively germane to this breach of contract action, and the determination of such performance is a question of fact for the jury. For example, one of the issues raised in the May 10 letter included Conifer's failure to designate "a dedicated denial management team to review and resolve Cone [Health's] denials." (May 10 Letter at 2.) The specific contractual provision referenced is paragraph V.8 of the Supplement, which indicates that the "[d]enial claims will be reviewed by specific teams dedicated to the resolution of certain types of denials." (Suppl. 1 ¶ V.8, Docket Entry 45-1 at 32.) This clause is ambiguous as to whether special denial teams were required to deal with the denial claims, or if Conifers current team structure met the terms of the agreement. Conifer argues that though it did not have to implement special teams, it offered, in its May 30 response letter, to make the necessary adjustments to Cone Health's satisfaction. (May 30 Letter at 4.) In a deposition, Cone Health's Vice President of Revenue Cycle, Michael Simms admitted that he did not personally respond, and that he could not recall, nor give an answer to whether anyone from his staff told Conifer to implement a dedicated denial staff. (Simms Dep., Ex. 15 135:5-136:25, Docket Entry 105-7 at 32.) The June 14 letter by Cone Health did further discuss the denial team management issue, and concluded by "demand[ing] that [Conifer] immediately designate and implement a dedicated denials team that is completely separate from . . . the existing 55-member collections team." (June 14 Letter at 3.) Yet, in a further response dated August 8, 2013, Conifer again indicated that it was "ready, willing, and able to make this change immediately upon receiving instruction to do so from Cone [Health]." (August 8 Letter, Ex. 31, Docket Entry 105-9 at 22.) These facts all present a genuine issue of whether substantial performance has been met. Likewise, there are other disputed facts raised regarding other issues in the May 10 letter. There are also genuine issues of material fact as to alleged breaches that could not be cured, for example, as Cone Health sets forth in its June 14, 2013 letter. (See June 14 Letter at 2-4.) Such issues preclude summary judgment in favor of Conifer as to liability on its counterclaim and as to Cone Health's claims in the Amended Complaint.

To the extent Conifer seeks partial summary judgment as to certain grounds for the alleged breach of contract, the Court finds that this is improper under Federal Rule of Civil Procedure Rule 56. Rule 56 permits a party to "move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought." Fed. R. Civ. P. 56(a). Partial summary judgment is permitted (e.g., finding of liability, the issues of damages); however, this rule is improper as to what Conifer seeks; that is, a pruning of factual allegations related to Cone Health's sole breach of contract claim (which raises several grounds of termination). Conifer opposes Cone Health's argument and relies upon the 2010 Comment Notes of Rule 56(a), which "make[s] clear at the beginning that summary judgment may be requested not only as to an entire case but also as to a claim, defense, or part of a claim or defense." Fed. R. Civ. P. 56(a), 2010 Comm. Notes. The Court agrees that disposition of less than an entire action is permissible under the Rule. However, to piecemeal and separately decide each ground for which Cone Health brings its claim, which is the root of liability in this breach of contract action pursuant to one provision in the parties' agreement, does not serve the best interest of justice here. Indeed, the case cited by Cone Health supports this position. Cardenas v. Kanco Hay, L.L.C., No. 14-1067-SAC, 2016 WL 3881345, at *7 (D. Kan. July 18, 2016) (unpublished) ("There may be parts of claims, such as liability, upon which a motion for partial summary judgment may be granted."). Damages — "Reasonable Certainty" Standard

Conifer also asserts that Cone Health's principal damages fail under the "reasonable certainty" standard. (Def.'s Br. at 22.) Cone Health argues that its damages are reasonably certain and not speculative. (Pl.'s Resp. Br. at 29.) A "party seeking damages must show that the amount of damages is based upon a standard that will allow the finder of fact to calculate the amount of damages with reasonable certainty." Olivetti Corp. v. Ames Bus. Sys., Inc., 319 N.C. 534, 547-48, 356 S.E.2d 578, 586 (1987). "In cases where a claim for damages from a defendant's misconduct are shown to a reasonable certainty, the plaintiff should not be required to show an exact dollar amount with mathematical precision." Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., 174 N.C. App. 49, 61, 620 S.E.2d 222, 231 (2005). However, damages may not be "based upon mere speculation or conjecture." Byrd's Lawn & Landscaping, Inc. v. Smith, 142 N.C. App. 371, 379, 542 S.E.2d 689, 694 (2001). The burden is on the party seeking damages to show that the reasonable certainty standard is met. Med. Staffing Network, Inc. v. Ridgway, 194 N.C. App. 649, 660, 670 S.E.2d 321, 330 (2009). "Whether a party's evidence meets the 'reasonable certainty' standard is a question of law for the court." Ross v. Washington Mut. Bank, 566 F. Supp. 2d 468, 482 (E.D.N.C. 2008), aff'd sub nom. Ross v. F.D.I.C., 625 F.3d 808 (4th Cir. 2010) (citation omitted).

Here, "[to] estimate its damages, Cone [Health] applied an historical gross collection rate ("GCR") to an extrapolated amount of AR that was written off due to Conifer's breach." (Pl.'s Resp. Br. at 29.) The basis for the GCR is set forth in the affidavit of David Wofford. (Wofford Aff., Ex. 124, Docket Entry 124-12.) According to Wofford, the GCR is "simply the amount actually collected during the time period in question, divided by the total amount of all charges (both Collectible Charges and Uncollectible Charges)." (Id. ¶ 11.) Conifer takes issue with this calculation because it would include "Clean Claims" which are claims Conifer would not have worked on. Conifer worked on "Problem Claims." (David Wofford Dep., Ex. 36 303:23-306:4, Docket Entry 105-9 at 57-58.) Wofford noted that "[p]resumbly, the collection rate for the A/R under its management should be lower than the overall gross collection rate because [Conifer] only managed 'Problem Claims.'" (Wofford Aff. ¶ 7.) However, Wofford also expressed the problems with solely categorizing Clean verses Problem Claims, and also stated that the GCR "takes into account, over an extended period of time, all of the various factors that lead to a physician practice not collecting 100% of its charges." (Id. ¶¶ 8, 14.) Wofford further stated that this application was "an extremely conservative calculation method." (Id. ¶ 16.)

Based upon the calculation method used here, the Court cannot conclude as a matter of law that Cone Health's damages are purely speculative and not reasonably certain. The historical collection rate used here is distinguishable from the collection method rejected in Managed Care Prof'ls, Inc. v. Medlantic Healthcare Grp., 164 F.3d 624, 1998 WL 704458, at *7 (4th Cir. Oct. 1, 1998) (unpublished table decision). In that case, the plaintiff predicted its damages based upon collection rates from prior dealings with another health care provider and a different third-party payor. Id. at *6-7. The Court also noted that the plaintiff failed to perform "detailed account-by-account reviews." Id. at *7. Here, Cone Health's damages calculation did not include another health care provider and based upon the expert's explanation of the method used, the application of the historical GCR should allow the fact-finder to calculate damages with reasonable certainty. Thus, Conifer's motion for partial summary judgment as to Cone Health's damages fail. Cone Health's Motion for Partial Summary Judgment

Cone Health seeks partial summary judgment as to damages on Conifer's counterclaim for two reasons: (1) Conifer is barred from recovering lost profits; and (2) if Conifer is entitled to lost profits, such damages should be limited to those occurring prior to August 9, 2014. (Pl.'s Br., Docket Entry 101.) Conifer argues to the contrary, asserting that it seeks damages for direct lost profits which are not barred under the Agreement, and that it is entitled to damages accrued through January 31, 2017. (Def.'s Resp. Br., Docket Entry 117.)

As to Cone Health's first argument, it relies upon a provision in the Agreement regarding the disclaimer of indirect damages. Section 14.2 of the Agreement states:

Disclaimer of Indirect Damages. Neither party shall be liable to the other party for indirect, incidental, consequential, exemplary, punitive or special damages, including lost profits, regardless of the form of the action or the theory of recovery, even if such a party has been advised of the possibility of such damages, but such limitation shall not apply to a breach of the business associate agreement (BAA) between the parties.

As previously stated, plain and unambiguous language of a contract controls and the intention of parties is inferred from the words of the contract. Philip Morris, 363 N.C. at 631-32, 685 S.E.2d at 90 (citation omitted). Here, the clear language of § 14.2 leads to only one appropriate interpretation that the parties are barred from recovering only indirect lost profits, thus Conifer's claim for damages resulting from direct lost profits are recoverable under the Agreement.

To reach this conclusion, the Court looks at the language of § 14.2 as a whole, and with particularity, the words "including lost profits." (Master Agreement § 14.2) (emphasis added)). This language is preceded by a list of excludable damages: "indirect, incidental, consequential, exemplary, punitive or special damages." (Id.) Interpreting a statutory provision, the North Carolina Court of Appeals has relied upon general dictionary definitions to the word "including":

The New Oxford American Dictionary defines the word "including" to mean "containing as part of the whole being considered." The New Oxford American Dictionary . . . . Similarly, Black's Law Dictionary explains, "The participle including typically indicates a partial list." Black's Law Dictionary 831 (9th ed. 2009).

Cone Health's reliance upon two North Carolina federal district court cases is misplaced. In Troche v. Bimbo Foods Bakeries Distribution, Inc., the defendant argued that the damages provision in the parties' contract precluded the plaintiff from recovering lost profits of any kind. No. 3:11-CV-234-RJC-DSC, 2016 WL 5417203, at *3 (W.D.N.C. Sept. 27, 2016) (unpublished). The plaintiff argued to the contrary, asserting that the lost profits preclusion was limited to indirect and consequential damages. (Id.) That court concluded that "the clear language of the [damages provision] leads to only one reasonable interpretation: [p]laintiff is prohibited from recovering [any] lost profits." (Id.) In holding that the contract barred all damages resulting from lost profits, Troche appears to rely on two cases, one with a similar damages provision as the one in Troche, and one with a comparable damages provision. Id. at *3-4. Both are unpersuasive here. In Carr v. Wal-Mart Stores, Inc., applying New York law, that court held that the agreement between the parties "clearly states that 'lost profits' cannot be recovered." No. 10-CV-6176 CJS, 2011 WL 939168, at *5 (W.D.N.Y. Mar. 16, 2011) (unpublished). That court disagreed with the "[p]laintiff['s] focus[] on the clause's reference to 'consequential, incidental, indirect' damages," and it also appears that no consideration was given to the dictionary definition of "including" which preceded the list of disclaimed damages (indirect, incidental, consequential, and special damages). Id. at * 1, 5. In a separate unpublished order, this Court, applying North Carolina law, held that "the plain language of [the damages clause in the parties' agreement] clearly states that consequential damages are excluded, that incidental damages are excluded, and that lost profits, regardless of whether they are characterized as consequential damages or direct damages, are excluded." Order at 3, Ada Uss Grp. v. Sara Lee Branded Apparel, No. 1:06-CV-610 (M.D.N.C. Dec. 28, 2007). However, the provision at issue in Ada Liss included language whereby the parties agreed to exclude "incidental or consequential damages and/or any claims for lost profits." Id. at 2-3 (emphasis added). Such language is distinguishable from the present case.

Although not controlling, the facts here are more akin to the Tenth Circuit Court of Appeals' holding in Penncro Assocs., Inc. v. Sprint Spectrum, L.P., 499 F.3d 1151 (10th Cir. 2007). In a breach of contract action, the defendant argued that the plaintiff was not entitled to lost profits based upon a provision in the parties' agreement forbidding "the recovery of 'consequential damages,' specifying that they 'include, but are not limited to, lost profits, lost revenues and lost business opportunities.'" Id. at 1155-56. That court gave consideration to the dictionary definition of "to include:

The dictionary underscores the point. Webster's defines the term "to include" as meaning "to place, list, or rate as a part or component of a whole or of a larger group, class, or aggregate." Webster's Third New International Dictionary 1143 (2002). The more general term informs the subsequently listed examples, not the other way around, and so lost profits here refer only to those that are "a part or component" of the larger group or class of consequential damages.

Having found that Conifer is not barred from seeking lost profits from direct damages resulting from any alleged breach by Cone Health, the Court will address Cone Health's argument that Conifer should be limited to damages incurred prior to August 9, 2014. (Pl.'s Br. at 10-15.) Cone Health relies upon § 15.2(c) of the Agreement to support its argument. The contract provision states:

Without Cause. After the three (3) year anniversary of this Agreement, [Cone Health] may terminate this Agreement without cause at any time with six (6) months written notice.

It has long been established as a general rule under North Carolina law that "[i]n a suit for damages arising out of a breach of contract, the party injured by the breach is entitled to full compensation for the loss and to be placed as near as may be in the position which [the non-breaching party] would have occupied had the contract not been breached." Meares v. Nixon Const. Co., 7 N.C. App. 614, 622-23, 173 S.E.2d 593, 599 (1970) (citing Harris & Harris Constr. Co. v. Crain and Denbo, Inc., 256 N.C. 110, 123 S.E.2d 590 (1962)). Thus, "the injured party is to be compensated 'for the loss which fulfillment of the contract could have prevented or the breach of it has entailed.'" Coble v. Richardson Corp. of Greensboro, 71 N.C. App. 511, 517-18, 322 S.E.2d 817, 822 (1984) (citing Norwood v. Carter, 242 N.C. 152, 155, 87 S.E.2d 2, 4 (1955)). "The interest being protected by this general rule is the non-breaching party's 'expectation interest,' and in so doing, the injured party receives the 'benefit of the bargain.'" First Union Nat. Bank of N. Carolina v. Naylor, 102 N.C. App. 719, 725, 404 S.E.2d 161, 164 (1991) (citation omitted). Applying North Carolina law, the Fourth Circuit in an unpublished decision held that "when a contract does provide a right to cancel with notice the parties must reasonably expect that this right might be exercised[.]" Strategic Outsourcing, Inc. v. Cont'l Cas. Co., 274 F. App'x 228, 235 (4th Cir. 2008) (unpublished).

To support its argument to limit Conifer's damages, Cone Health relies upon its unilateral ability to terminate the contract without cause at the three-year anniversary of the parties' Agreement (with six months' notice). Cone Health argues that Conifer's expectation interest could not have exceeded the scope of the without cause provision. (Pl.'s Br. at 12-13.) The Court first notes that Cone Health terminated the contract pursuant to § 15.2(a) "with cause" rather than "without cause" as § 15.2(c) permits. Additionally, Cone Health terminated the Agreement on August 12, 2013, prior to the three-year anniversary. At that time, even if it had sought to do so, Cone Health could not have unilaterally terminated pursuant to § 15.2(c) because its actions would be have been premature. However, this is not determinative here. North Carolina case law has held that "the damages recoverable are such as may reasonably be supposed to have been in the contemplation of the parties when the contract was made." Troitino v. Goodman, 225 N.C. 406, 412, 35 S.E.2d 277, 281 (1945) (emphasis added) (citation omitted); see also Weyerhaeuser Co. v. Godwin Bldg. Supply Co., 292 N.C. 557, 560-61, 234 S.E.2d 605, 607 (1977) (quoting Troitino). Thus, at the time of contracting, Conifer could have no expectation beyond the three year anniversary (with six months' notice). As such, Conifer's damages should be limited to those occurring prior to August 9, 2014. Strategic Outsourcing, 274 F. App'x at 235 ("North Carolina law . . . holds that an injured party to a contract of fixed duration may recover damages incurred during the entire contract period when one party prematurely terminates the contract if it does not include a cancellation provision.").

In an alternative argument, Conifer asserts that even if the damages are limited, such limitation should be to February 8, 2015 rather than the August 9, 2014 anniversary date. (Def.'s Br. at 23-25.) Conifer relies upon the language of § 15.2(c) and suggests that it "only became operative '[a]fter the three (3) year anniversary . . . with six months written notice.'" (Id. at 24.) Cone Health argues that this new theory asserted by Conifer is improper and that Conifer has "maintained the position throughout this litigation that Cone [Health] could have terminated the Agreement 'without cause on August 9, 2014.'" (Pl.'s Reply Br. at 9, Docket Entry 135) (citation omitted).

Here, the Court finds that § 15.2(c) is ambiguous on the issue of when Cone Health could provide notice of its intent to terminate under §15.2(c). "[A] contract [term] is ambiguous when the 'writing leaves it uncertain as to what the agreement was . . . .'" Barrett Kays & Assocs., P.A. v. Colonial Bldg. Co. of Raleigh, 129 N.C. App. 525, 528, 500 S.E.2d 108, 111 (1998) (citing International Paper Co. v. Corporex Constructors, Inc., 96 N.C. App. 312, 317, 385 S.E.2d 553, 556 (1989)). The New Oxford American Dictionary defines "notice" as "notification or warning of something, esp. to allow preparations to be made." The New Oxford American Dictionary 1200 (Elizabeth J. Jewell et al. eds., 3d ed. 2010). Here, the clause is susceptible to more than one interpretation as a reasonable jury could find that Cone Health could give notice six (6) months prior to the anniversary date, or that Cone Health could give notice only after the date of the three-year anniversary. The inquiry does not end here, however.

Even where a court, however, determines as a matter of law that the contract is ambiguous, it may yet examine evidence extrinsic to the contract that is included in the summary judgment materials, and, if the evidence is, as a matter of law, dispositive of the interpretative issue, grant summary judgment on that basis. If, however, resort to extrinsic evidence in the summary judgment materials leaves genuine issues of fact respecting the contract's proper interpretation, summary judgment must of course be refused and interpretation left to the trier of fact.

For the reasons stated above, IT IS THEREFORE ORDERED that Cone Health's Motion for Partial Summary Judgment (Docket Entry 100) is GRANTED IN PART AND DENIED IN PART, and Conifer's Motion for Partial Summary Judgment (Docket Entry 103) is DENIED.

/s/_________

Joe L. Webster

United States Magistrate Judge April 11, 2017
Durham, North Carolina

Id.