Torts: Intentional Interference With Contractual Relations

Elements of Proof

To recover for a claim for intentional interference with contractual relations, a plaintiff must establish the following elements:

(1) the existence of a contract;

(2) Defendants’ knowledge of this contract;

(3) that it intended to cause its breach;

(4) its conduct caused the breach;

(5) this breach resulted in damages to [the plaintiff]; and

(6) Defendant had no privilege or justification to excuse its conduct.

CMI, Inc. v. Intoximeters, Inc., 918 F.Supp. 1068, 1079 (W.D.Ky.1995); see also Hunt, 18 F.Supp.2d at 702–703 (citing Blair v. Gen. Motors Corp., 838 F.Supp. 1196, 1200 (W.D.Ky.1993)) (internal quotation marks omitted) (“In order to prove a claim for tortious interference, [a plaintiff] must demonstrate that a wrongdoer intentionally meddled with an agreement without justification or invaded contractual relations by engaging in significantly wrongful conduct.”).

However, as an affirmative defense, a defendant “may escape liability by showing that he acted in good faith to assert a legally protected interest of [its] own.” NCAA v. Hornung, 754 S.W.2d 855, 858 (Ky.1988). Kentucky courts have consistently held that a conduct within the scope of a contractual agreement cannot form the basis for an intentional interference claim. E.g., Hunt, 18 F.Supp.2d at 702; Hornung, 754 S.W.2d at 860 (holding that defendant’s decision to decline to approve and hire the plaintiff as a broadcaster was a bargained-for right that was an essential element of the contract, so defendant “entitled to assert its right even to the detriment of [plaintiff’s] prospective contractual relation”); cf. Blair, 838 F.Supp. at 1200 (“[A] claim of tortious interference should not [lie] where [a manufacturer in a dealership agreement] is asserting legitimate contract rights.”).

From Epps Chevrolet Company, D/B/a Tom Epps Nissan, Plaintiff, V. Nissan North America, Inc., Defendant, 99 F.Supp.3d 692 United States District Court, E.D. Kentucky, Central Division, at Frankfort.  District Court, Gregory F. Van Tatenhove, J. (now on Sixth Circuit).

See also,

Throughout this litigation, the parties and the lower courts have relied upon Sections 766B, 767, and 773 of the Restatement (Second) of Torts. While this Court has never adopted these sections, the Court of Appeals in Cullen v. South East Coal Co., Ky.App., 685 S.W.2d 187 (1983), followed Section 766B and recognized that intentional and improper interference with the prospective contractual relations of another gives rise to liability. Several other Kentucky decisions recognize that contractual relations or prospective contractual relations are protected from improper interference. See Brooks v. Patterson, 234 Ky. 757, 29 S.W.2d 26 (1930); Derby Road Building Co. v. Commonwealth, Ky., 317 S.W.2d 891 (1958); Carmichael – Lynch – Nolan, Etc. v. Bennett, Etc., Ky.App., 561 S.W.2d 99 (1977); and Henkin, Inc. v. Berea Bank & Trust Co., Ky.App., 566 S.W.2d 420 (1978). Upon examination of our decisions, we conclude that the foregoing sections of the Restatement fairly reflect the prevailing law of Kentucky.

Our law is clear that a party may not recover under the theory presented in the absence of proof that the opposing party “improperly” interfered with his prospective contractual relation. To determine whether the interference is improper, Section 767 sets forth seven factors to be considered by the court in ruling on the motion for directed verdict and, if the case is submitted, considered by the jury. Unless there is evidence of improper interference, after due consideration of the factors provided for determining such, the case should not be submitted to the jury. Even if evidence is presented which would otherwise make a submissible case, the party whose interference is alleged to have been improper may escape liability by showing that he acted in good faith to assert a legally protected interest of his own. While the party seeking recovery bears the burden of proving that the interference was improper, the party asserting a right to protect his own interest bears the burden of proving his defense.

National Collegiate Athletic Ass’n By and Through Bellarmine College v. Hornung, 754 S.W.2d 855 (SC 1988).

Torts: Tortious Interference With Prospective Economic Advantage

Elements of Proof

Tortious interference with a prospective business advantage does not require the existence of a contract.

Elements are:

(1) the existence of a valid business relationship or expectancy;

(2) Defendant was aware of this relationship or expectancy;

(3) that defendant intentionally interfered;

(4) that the motive behind the interference was improper;

(5) causation; and

(6) special damages.

Monumental Life Ins. Co. v. Nationwide Retirement Solutions, Inc., 242 F.Supp.2d 438, 450 (W.D.Ky. 2003). This analysis turns primarily on motive. National Collegiate Athletic Ass’n By and Through Bellarmine College v. Hornung, 754 S.W.2d 855, 859 (Ky. 1988). To prevail under this theory of liability, the “party seeking recovery must show malice or some significantly wrongful conduct.” Id.


COA: October 13, 2017 Court of Appeals Decisions (Minutes)

Nos. 861-889: 29 Decisions Posted with a 6 decisions designated 'to be published' with links to full text of each decision


866.  Medical Negligence.  Expert Proof.  Res ipsa loquitur
Estate of Chris Chamis v. Ashland Hospital Corporation d/b/a King’s Daughters Medical Center
Affirmed summary judgment in favor of hospital finding the res ipsa loquitur doctrine did not apply and eliminating the need for an expert witness to testify as to the failure of bed rails to establish the hospital’s expected standard of care, breach thereof and resulting injury.

Murrell v. Kentucky Parole Board

880.  Government Pensions
Marango v. Kentucky Retirement Systems

884.  Workers Compensation
First Class Services v. Hensley

887. Criminal Law.
Commonwealth of Kentucky v. Donald Adams

888. Workers Compensation.
McCoy Elkhorn Coal Corp, Insolvent Employer v. Sargent

Selected cases that were not designated for publication in tort, insurance and civil law.

862. Juror Excusal.  Experts. Instructions.  Residents’ Rights Act.
Estate of Joseph Stamper v. Berea Area Development LLC
Jerry Stamper, as Administrator of the Estate of Joseph Stamper, deceased (the Estate), appeals from a judgment of the Madison Circuit Court confirming a jury verdict in favor of Berea Area Development, LLC, d/b/a The Terrace Nursing and Rehabilitation Facility (the Terrace). The Estate argues that the trial court abused its discretion by denying its motion to excuse two potential jurors for cause and by excluding a portion of its expert’s testimony. We find no abuse of discretion on either issue. The Estate further argues that the trial court erred by failing to instruct the jury on the separate duties arising under the Residents’ Rights Act. Based on the recent decision of the Kentucky Supreme Court in Overstreet v. Kindred Nursing Centers Ltd. P’ship, 479 S.W.3d 69 (Ky. 2015), we conclude that the statutory duties merely involve a legislative codification of the common-law standard of care or do not survive the death of the resident. Since the jury instructions adequately set out the Terrace’s duties and standard of care, the exclusion of specific duties under the Act was at most harmless error. Hence, we affirm.

864.  Torts.  Malicious Prosecution. Abuse of Process, etc.  Elements discussed.
Dearborn Savings Bank v. Hall

871.  Premies Liability.  Open and Obvious and Comparative Negligence.
Rodgers v. Grant County Football Boosters
Reversed and remanded summary judgment dismissing claim arising from fall caused by flower pot near door at bingo hall – factual question for jury.  We conclude that there clearly remain questions of fact as to whether the flower pot constituted an unreasonable risk, the foreseeability of harm created by the flower pot, and whether the Boosters breached its duty of care to maintain the premises in a safe condition for its patrons. Furthermore, even if Rodgers was negligent in some respect, under comparative fault she has the right to determine if there was any negligence on the part of the Boosters that contributed to her injuries, and then to have a jury apportion that fault. Accordingly, summary judgment was improper.


For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

For more information on unpublished decisions and obtaining case information, then continue reading below the fold.

SC: October 2017 Oral Arguments before Ky Supreme Court

Only one day this month - Thursday Oct. 26. A good one to catch either streaming or live is GEICO v. Houchens class action on car insurers terminating PIP benefits on paper medical reviews. Should be many in the audience.

A few issues this month include:

  • “Insurance. MVRA. KRS 304.39-270-(1). The question is whether a Kentucky motor vehicle reparations obligor may terminate their insured’s basic reparations benefits premised purely upon “paper reviews” of medical records not tendered for court review.” [This case is scheduled for oral argument on 10/26/2017 at 9:00 am.   Important issue of paper reviews used to deny no-fault PIP benefits.  You should earn CLE for this one for appellate advocacy with the following attorneys involved:Attorneys for Appellant: Edward H. Stopher and Todd Patrick Greer
    Attorneys for Appellees: Kevin Crosby Burke, C. David Ewing, Jamie Kristin Neal, and Damon Blake Willis
  • “DUI. Indigent Defendants. KRS 534.040. KRS 189A.010. Issues include whether the district court properly imposed a fine on an indigent defendant convicted of a DUI.”  10/26
  • “KRS 15.520. Kentucky Law Enforcement Foundation Program. Due Process. Termination of deputy sheriff. The issue is whether a sheriff who has elected to receive funds pursuant to KRS 15.520, is required to follow the due process requirements of the statute for the termination of a deputy sheriff even though there is no deputy sheriff review board in the county.” 10/26


Click here for link to table of all monthly oral argument calendars at Kentucky’s Administrative Office of the Courts (AOC) from 2005 to date.

Click here for a link to all of the Kentucky Court Report’s postings on Supreme Court argument calendars.

Click here to catch live web streaming oral arguments on the date and time of the argument.  They are not saved for later viewing.


Torts: Common Law Negligence

Elements of Proof

A common law negligence claim requires proof of

(1) a duty owed by the defendant to the plaintiff,
(2) breach of that duty,
(3) injury to the plaintiff, and
(4) legal causation between the defendant’s breach and the plaintiff’s injury.

Wright v. House of Imports, Inc., 381 S.W.3d 209 (Ky. 2012)

The standard of care applicable to a common-law negligence action is that of ordinary care—that is, “such care as a reasonably prudent person would exercise under the circumstances.” Slusher v. Brown, 323 S.W.2d 870, 872 (Ky. 1959).




SC: Chief Justice Minton to give 2017 State of the Judiciary address before  Interim Joint Committee on Judiciary on Friday, Oct. 20

FRANKFORT, Ky., Oct. 11, 2017 – Chief Justice of Kentucky John D. Minton Jr. will present the 2017 State of the Judiciary address before the General Assembly’s Interim Joint Committee on Judiciary on Friday, Oct. 20, at the Capitol Annex in Frankfort. His remarks will begin at 10 a.m. ET in Room 171. The event is open to the public and the media.

The State of the Judiciary Address is an opportunity for Chief Justice Minton to give the legislature an update on Judicial Branch operations. This year his remarks will include a look at several complex issues facing the court system and the initiatives being employed to address these challenges.

The full address will be posted here shortly after the conclusion of his remarks.

The chief justice is the administrative head of the state court system and is responsible for overseeing its operation. Chief Justice Minton was elected to the Supreme Court in 2006. His fellow justices elected him to serve a third four-year term as chief justice in 2016.

In July 2017, Chief Justice Minton completed a one-year term as president of the Conference of Chief Justices and chair of the National Center for State Courts Board of Directors. Chief Justice Minton was the first chief justice from Kentucky to hold this post in nearly 25 years. He is also a member of the board of directors for theState Justice Institute, a federal nonprofit corporation that awards grants to improve the quality of justice in state courts. President Obama nominated Chief Justice Minton to the SJI board and the U.S. Senate confirmed the nomination in December 2016.

COA: October 6, 2017 Court of Appeals Decisions (Minutes)

Nos. 833-860: 28 Decisions Posted with a 3 decisions designated 'to be published' with links to full text of each decision


834.   Attorney Fees.
Kincaid v. Johnson, True & Guarnieri LLP
Affirmed amount of attorney fees awarded to law firm, and the manner in which those fees were calculated arising from trust litigation.

841.  Fellow-employee doctrine.  Torts.
Roach v. Wilson
Affirmed. Held fellow-employee immunity under the Workers Comp Act does not apply when an employee causes injury as a result of acts outside the scope and course of employment and there was sufficient evidence to support the jury’s finding that the bus driver was voluntarily intoxicated while operating the school bus involved in the crash.

849.  Home Owners Insurance.  Exclusions.  Water damage.
Comley v. Auto-Owners Insurance Company
Affirming.  Held Comley’s homeowner’s policy did not cover water damage to his house where water main owned and operated by Kentucky American Water Company burst, causing water to enter onto Comley’s land and into the residence, and damaging both his real and personal property.

Selected cases that were not designated for publication in tort, insurance and civil law.

833.  Torts.  Damages.  Admissibility of disability application.
Caschera v. Gladstone
Affirmed trial court’s denial of plaintiff’s motion for direct verdict and negligence per se on liability.  Affirmed ruling admitting disability application and ruled hearsay objection not raised at trial would not be considered on appeal.

844.  Insurance.  No fault.  Examinations under oath and medical examinations.
McGhee v. Allstate Northbrook Indemnity Co.

McGhee’s insurance contract specifically provides that she must authorize Allstate to obtain medical reports and other records pertinent to her claim. It also specifically provides that she may be required to submit to an examination under oath as often as Allstate reasonably requires and to undergo medical examinations by physicians of Allstate’s choosing as often as Allstate reasonably requires.

Under Allstate’s policy provisions, McGhee was required to submit to an examination under oath as a condition precedent to coverage. Instead of denying coverage outright when McGhee refused to cooperate, Allstate attempted to secure the circuit court’s assistance in obtaining information by way of deposition that Allstate reasonably believed was helpful to its claims decision. The circuit court agreed that Allstate was entitled to conduct a reasonable investigation to determine whether McGhee was entitled to receive BRB. Under the circumstances, McGhee’s resistance to Allstate’s efforts was inappropriate under her contract of insurance. The circuit court did not err by concluding that McGhee failed to provide reasonable proof of her claims until ordered to do so by the court. Nor did it err in determining that once she had provided the requisite proof, Allstate agreed promptly to pay the claims. Thus, McGhee asserted no viable claim against Allstate. The circuit court did not err by dismissing the proceedings.

845.  Arbitration.
Kindred Hospitals Limited Partnership v. White
The record does not support the Jefferson Circuit Court’s determination that Sherren lacked contractual capacity when she executed the ADR agreement. Therefore, the presumption of her capacity applied, and we REVERSE.

847.  Qualified Immunity given to detention center employees.
Lee v. Stone

851.  Automobile Insurance.  Coverage for vehicle not yet titled, etc.
Withers v. Kentucky Farm Bureau Mutual Ins. Co.


For links to all our posts on the minutes of the Court of Appeals, then click here.

For the index to archived minutes at the official AOC page, then click here.

For more information on unpublished decisions and obtaining case information, then continue reading below the fold.

COA: October 2017 Oral Argument Calendar for Court of Appeals

Click here for a complete list of our posts for COA Arguments and here for those for SCOKY. And here is a link to the AOC page containing their index to all Court to Appeal oral argument calendars. with names, litigants, issues, and the dates/times/locations for each argument – Oral Arguments Calendar.


SC: September 2017 Grants of Discretionary Review by the Supreme Court of Kentucky (MDRs)

Court Orders Granting Motions for Discretionary Review – Sept. 20, 2017

    2016-SC-000560-DG HARDIN
    2017-SC-000024-DG JEFFERSON
    2017-SC-000233-DG FRANKLIN
    2017-SC-000235-DG OLDHAM
    2017-SC-000260-DG JEFFERSON
    2017-SC-000358-DGE KNOTT
    2017-SC-000395-DGE JEFFERSONCourt Orders Granting Motions for Discretionary Review – Sept. 21, 2017
  •  THE TRAVELERS INDEMNITY COMPANY V. CHARLES ARMSTRONG, ADMINISTRATOR, ETC. 2017-SC-000041-DG WARRENANDMARTIN CADILLAC, INC., ETC. V.CHARLES ARMSTRONG, ADMINISTRATOR, 2017-SC-000042-DG WARRENMINTON, C.J.; CUNNINGHAM, KELLER, VENTERS, WRIGHT, JJ., AND DAVID ROYSE AND JUSTIN D. CLARK, SPECIAL JUSTICES, SITTING. HUGHES AND VANMETER, JJ., NOT SITTING.Here is the compiled list of pending discretionary reviews granted up through August 2017.  September MDRs are not yet included, and those decisions included in the September Minutes have yet to be removed.  When SCOKY updates this list we will post it.For case information, here is the link to the search page.  You will also be able to follow and look up the underlying case information with a link to the COA decision, if there is one, using the search function for the COA.
  • Link to SCOKY Case Info
  • Link to COA Case Info