Nov. 2, 2012 Court of Appeals Minutes. Some issues covered – piercing the corporate veil; defamation action against TV station; timely filing of workers compensation claim;

Published and Unpublished Decisions from the Kentucky Court of Appeals:

November 2, 2012 Court of Appeals Minutes
Nos. 1001-1031 (31 decisions;  9 Cases To Be Published)

The Tort Report
This special extract of cases is designed for the Kentucky accident and injury lawyers, to include car collision lawyers, personal injury attorneys, from Lexington to Louisville, Bowling Green to Covington, and Pikeville to Paducah!

The Court of Appeals addressed torts, insurance and civil procedure:

Links to copy of minutes and AOC page:

  • Click on  this link for the full text of these minutes with link to full text of each decision.
  • Click here for AOC page with current minutes and archived minutes links

Published Cases of Kentucky Court of Appeals 10/26/2012:
The “hot link” for each case is to the full-text of the decision.

1001. CRIMINAL LAW
BRATCHER (PHILLIP)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
KELLER (CONCURS) AND STUMBO (CONCURS)
2009-CA-001084-MR
2009-CA-001085-MR
TO BE PUBLISHED
JEFFERSON

1004.  CORPORATIONS.  PIERCING THE CORPORATE VEIL AND ALTER EGO DOCTRINES ADDRESSED IN A REAL ESTATE DEVELOPMENT CONTRACT DISPUTE.
HOWELL CONTRACTORS, INC.
VS.
BERLING (CHARLES J.), ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
ACREE (CONCURS) AND MOORE (CONCURS)
2010-CA-001755-MR
TO BE PUBLISHED
KENTON

1006.  CRIMINAL LAW
CHAMES (WILLIAM)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
VANMETER (PRESIDING JUDGE)
MOORE (CONCURS) AND STUMBO (CONCURS)
2011-CA-000173-MR
TO BE PUBLISHED
KENTON

1013.  TORTS; DEFAMATION.
GIBSON (RON)
VS.
RAYCOM TV BROADCASTING. INC. , ET AL.
OPINION AFFIRMING
CLAYTON (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2011-CA-001347-MR
TO BE PUBLISHED
JEFFERSON

CLAYTON, JUDGE: Ron Gibson appeals from the grant of summary judgment motions by the Jefferson Circuit Court in favor of the Appellees, Raycom TV Broadcasting, Inc., d/b/a as WAVE-3 TV (hereinafter “WAVE-3”), Charla Young, and Mike Taylor in an action for defamation. After careful review, we affirm.

CAUSE OF ACTION:

To establish a case of defamation in Kentucky, four elements must be proven. The elements require the plaintiff to prove: defamatory language, about the plaintiff, which is published, and which causes injury to reputation. Columbia Sussex Corp., Inc. v. Hay, 627 S.W.2d 270, 273 (Ky. App. 1981). Words are defamatory when the words tend “to (1) bring a person into public hatred, contempt or ridicule; (2) cause him to be shunned or avoided; or, (3) injure him in his business or occupation.” McCall v. Courier-Journal and Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981).

Whether words are defamatory per se as been discussed by the Kentucky Supreme Court in Hill v. Evans, 258 S.W.2d 917 (Ky. 1953). “Generally, defamatory words written or spoken of another are divided into two classes in determining the extent to which they are actionable. Words may be actionable per se, or per quod.” Id. at 918. If words are defamatory per se, damages are presumed and the plaintiff may recover without alleging or proving special damages. Id. Later, in another case, our Court went on to explain that:

Statements classified as defamatory per se include those which attribute to someone a criminal offense, a loathsome disease, serious sexual misconduct, or conduct which is incompatible with his business, trade, profession, or office, [but w]ords may be actionable per quod, by contrast, only if there is an allegation and proof of actual damages.

Gilliam v. Pikeville United Methodist Hosp. of Kentucky, Inc., 215 S.W.3d 56, 61 (Ky. App. 2006)(footnotes omitted).

Significantly, a claim of defamation may be defeated by establishing the truth of the matter asserted. If so, the party has an absolute defense to the claim of defamation. Smith v. Martin, 331 S.W.3d 637, 640 (Ky. App. 2011). Still, “the defendant has the burden of proving truth as an affirmative defense or ‘justification’ by a preponderance of the evidence.” Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 796 (Ky. 2004). Yet, in cases involving the media, the First Amendment precludes a defamation judgment if the contested statements were “substantially true.” Kentucky Kingdom Amusement Co. v. Belo Kentucky, Inc., 179 S.W.3d 785, 801 (Ky. 2005)(citing Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993)).

1014.  CRIMINAL LAW
JARRELL (WILLIAM)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
MOORE (PRESIDING JUDGE)
ACREE (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-001399-MR
TO BE PUBLISHED
BOYD

1015.  TAXATION AND REVENUE.
DAYTON POWER AND LIGHT COMPANY
VS.
DEPARTMENT OF REVENUE,
FINANCE AND ADMINISTRATION CABINET,
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
COMBS
DIXON (CONCURS) AND VANMETER (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-1438-MR
TO BE PUBLISHED
FRANKLIN

1023. FAMILY LAW.
TRUMAN (SARA BETH)
VS.
LILLARD (AMANDA MARIE)
OPINION AFFIRMING
NICKELL (PRESIDING JUDGE)
TAYLOR (CONCURS) AND VANMETER (CONCURS)
2012-CA-000160-ME
TO BE PUBLISHED
FAYETTE

1028. FAMILY LAW.  STANDING ON GRANDPARENT VISITATION.
PALMER, (HARRY ANDERSON), JR. ET AL.
VS.
BURNETT (KRISTEN), ET AL.
OPINION AFFIRMING
ACREE (PRESIDING JUDGE)
DIXON (CONCURS) AND VANMETER (CONCURS)
2012-CA-000318-ME
TO BE PUBLISHED
JEFFERSON

 

1029.  WORKERS COMPENSATION – TIMELY FILING ADDRESSED.
DECKER (WILLIAM)
VS.
CONTROL SYSTEMS, INC. , ET AL.
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
KELLER (CONCURS) AND TAYLOR (CONCURS)
2012-CA-000468-WC
TO BE PUBLISHED
WORKERS’ COMP

TORT REPORT  FOR NONPUBLISHED DECISIONS (MINUS WORKERS COMP) – torts, insurance, civil procedure: 

1008.  OPEN MEETINGS ACT.
TAYLOR (ROBERT E.) III
VS.
BOWLING GREEN MUNICIPAL UTILITIES
OPINION AFFIRMING
CAPERTON (PRESIDING JUDGE)
CLAYTON (CONCURS) AND VANMETER (CONCURS)
2011-CA-000592-MR
NOT TO BE PUBLISHED
WARREN

1010.  APPEALS. FINAL AND APPEALABILITY ADDRESSED SIGNIFICANTLY.
GLASS (KAREN)
VS.
AMANOR (SANDY)
OPINION AND ORDER DISMISSING
KELLER (PRESIDING JUDGE)
TAYLOR (CONCURS) AND THOMPSON (DISSENTS AND FILES SEPARATE OPINION)
2011-CA-000774-MR
NOT TO BE PUBLISHED
FRANKLIN

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