COA 2011 Minutes for May 6, 2011 — Nos. 443-470

COA 2011 Minutes for May 6, 2011 –    Nos. 443-470

443. Criminal Law.
CARTER (VANESSA)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING
KELLER (PRESIDING JUDGE)
NICKELL (CONCURS) AND STUMBO (CONCURS)
2009-CA-000800-MR
TO BE PUBLISHED
GRAVES

KELLER, JUDGE: Vanessa Carter (Carter) appeals from the circuit court's denial of her motion to suppress information about her which was obtained by a police officer from records in the Kentucky All-Schedule Prescription Electronic Reporting System (KASPER). For the following reasons, we affirm.

445. Criminal.
JACOBI (STEPHEN MITCHELL)
VS.
COMMONWEALTH OF KENTUCKY
OPINION AFFIRMING IN PART, REVERSING IN PART AND REMANDING
ISAAC (PRESIDING JUDGE)
CLAYTON (CONCURS) AND NICKELL (CONCURS)
2009-CA-001572-MR
TO BE PUBLISHED
HARDIN

ISAAC, SENIOR JUDGE: Steven Mitchell Jacobi appeals from the denial of his motion for post-conviction relief pursuant to Kentucky Rule(s) of Criminal Procedure (RCr) 11.42 and Kentucky Rule(s) of Civil Procedure (CR) 60.02. After careful review, we affirm in part, reverse in part, and remand.

462.  Unemployment Benefits.
GRIMES (JO ANN M.)
VS.
KENTUCKY UNEMPLOYMENT INSURANCE COMMISSION, ET AL.
OPINION AFFIRMING
WINE (PRESIDING JUDGE)
TAYLOR (CONCURS) AND MOORE (CONCURS)
2010-CA-000896-MR
TO BE PUBLISHED
JEFFERSON

WINE, JUDGE: Jo Ann M. Grimes (“Grimes”) appeals from an order of the Jefferson Circuit Court dismissing her appeal from a decision of the Kentucky Unemployment Insurance Commission (“the Commission”) to take no action on her motion to reopen a claim for unemployment benefits. We agree with the circuit court that there is no statutory basis to bring a motion to reopen or for the circuit court to review the denial of such a motion. Furthermore, an appeal from the original denial of Grimes’s application would have been untimely. Therefore, the circuit court properly dismissed the appeal. Hence, we affirm.

466. Family Law. DVO.
COMMONWEALTH OF KENTUCKY
VS.
GARBER (ELEANORE), ET AL.
OPINION AND ORDER GRANTING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND KELLER (CONCURS)
2010-CA-001226-OA
TO BE PUBLISHED
JEFFERSON

VANMETER, JUDGE: The Cabinet for Health and Family Services filed these original actions after two divisions of the Jefferson Family Court entered orders in domestic violence proceedings directing the Cabinet to investigate certain individuals for the risk of dependency, neglect, or abuse of children. No responses were filed to the petitions for writs of prohibition and mandamus. Having considered the petitions and having been otherwise sufficiently advised, the Court ORDERS that the petitions be GRANTED as provided in this order.

Nonpublished Tort, Procedure, etc – AKA TORT REPORT

450. Employment Law. Hostile work environment.
VINLAND ENERGY OPERATIONS, LLC., ET AL.
VS.
ENGLE (JANICE)
OPINION VACATING AND REMANDING
MOORE (PRESIDING JUDGE)
LAMBERT (CONCURS) AND NICKELL (CONCURS)
2009-CA-002227-MR
NOT TO BE PUBLISHED
LAUREL

MOORE, JUDGE: Vinland Energy Operations, LLC, and its owner, Majeed Saiedy Nami, appeal a jury verdict rendered in Laurel Circuit Court, including punitive damages, in the amount of nearly $1 million in favor of Janice Engle in this hostile work environment and retaliation case brought pursuant to Kentucky Revised Statute (KRS) Chapter 344 and common law battery. After oral argument and upon review of the record and briefs, we vacate and remand.

458. WORKERS COMPENSATION
LEWIS (RANDY)
VS.
FORD MOTOR COMPANY, ET AL.
OPINION AFFIRMING
THOMPSON (PRESIDING JUDGE)
VANMETER (CONCURS) AND WINE (CONCURS)
2010-CA-000777-WC
NOT TO BE PUBLISHED
WORKERS' COMP

464. Insurance. Bad Faith. UCSPA.
EXEL, INC.
VS.
LIBERTY MUTUAL FIRE INSURANCE COMPANY
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-001148-MR
NOT TO BE PUBLISHED
LAUREL

VANMETER, JUDGE: Exel, Inc. (Exel) appeals from the Laurel Circuit Court order granting summary judgment in favor of Liberty Mutual Fire Insurance Company (Liberty). For the following reasons, we affirm.

On appeal, Exel first argues that the trial court erred by granting Liberty’s motion for summary judgment because proof of actual damages is not necessary to sustain a claim of bad faith. We disagree.

To establish a private cause of action for a claim of bad faith under the UCSPA, one cannot rely merely upon a “technical violation” of the UCSPA. Wittmer v. Jones, 864 S.W.2d 885, 890 (Ky. 1993). Indeed, “a condition precedent to bringing a statutory bad faith action is that the claimant was damaged by reason of the violation of the statute.” Motorists Mut. Ins. Co. v. Glass, 996 S.W.2d 437, 452 (Ky. 1997). Absent actual damage, there can be no cause of action premised upon an allegation of bad faith under the UCSPA. Id. at 454. (citation omitted).

the UCSPA contains no provision permitting a claim for punitive damages absent a showing of compensatory damages, or absent a showing that the claimant was injured by actions that violated the statute. Rather, case law suggests that in order for a claimant to succeed on a claim of bad faith, they must allege actual injury. Thus we conclude that in order for Exel to defeat Liberty’s motion for summary judgment, it must allege injuries on which compensatory damages may be awarded.

Next, Exel contends the trial court erred by finding that it failed to present evidence to support a finding that Liberty’s actions caused actual damage or injury to Exel. Specifically, Exel alleges it suffered compensable damages in the form of attorney fees in regards to the underlying action, the expenses associated with Exel’s attorney’s time spent assisting Liberty in its defense of Exel, the loss of coverage under its policy with Liberty, and its increased loss experience resulting from Liberty’s settlement with Borden. We disagree.

Finally, Exel maintains that the trial court erred by granting Liberty’s motion for summary judgment regarding its claim of tortious interference with a contract. We disagree.
To prevail on a claim of tortious interference, one must show improper interference with a contractual relationship. Nat’l Collegiate Athletic Ass’n By and Through Bellarmine Coll. v. Hornung, 754 S.W.2d 855, 858 (Ky. 1988). In determining whether an actor’s conduct is improper, courts consider the following:
(a) the nature of the actor’s conduct, (b) the actor’s motive,
(c) the interests of the other with which the actor’s conduct interferes,
(d) the interest sought to be advanced by the actor,
(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
(f) the proximity or remoteness of the actor’s conduct to the interference and
(g) the relations between the parties. E. Kentucky Res. v. Arnett, 892 S.W.2d 617, 619 (Ky.App. 1995) (citing
Restatement (Second) of Torts § 767 (1979)).

468. WORKERS COMPENSATION
COOVERT (MICHAEL SCOTT)
VS.
LOGAN'S ROADHOUSE, INC. AND GALLAGHER BASSETT SERVICES, INC. , ET AL.
OPINION REVERSING AND REMANDING
VANMETER (PRESIDING JUDGE)
COMBS (CONCURS) AND THOMPSON (CONCURS)
2010-CA-001320-WC
NOT TO BE PUBLISHED
WORKERS' COMP

470.  WORKERS COMPENSATION
TURNER (RAY)
VS.
FOX KNOB COAL CO., INC.;
HON. HOWARD FRASIER,
ADMINISTRATIVE LAW JUDGE; AND
WORKERS’ COMPENSATION BOARD
OPINION AFFIRMING
VANMETER (PRESIDING JUDGE)
CLAYTON (CONCURS) AND LAMBERT (CONCURS)
2010-CA-002112-WC
NOT TO BE PUBLISHED