From a CompEd Email
CompEd, Inc. www.comped.net . Ched Jennings, President
P.O. Box 20863 . Louisville, KY 40250 . (502) 238-3378

The Office of Workers Claims has established by Emergency Regulation a new procedure for Medical Dispute Mediation.  The following links will provide you with the Emergency Regulation and a Flow Chart:

• http://labor.ky.gov/dwc/pdf-file-misc/803KAR25250E.pdf  
• http://labor.ky.gov/dwc/pdf-file-misc/Mediation Flowchart.pdf

This could easily be a companion case to Riggins v. Floyd, another published Court of Appeals case decided in September 2005. The basic holding of both cases is that a will executed before 1998 was revoked by subsequent marriage before 1998. The General Assembly changed that result by amending KRS 394.090 in 1998. The only interesting point about that is that the Court of Appeals treated the rule about a will speaking at the time of death as a rule of construction that does not enter into the question about the validity of the will.

The Conn case did include an interesting discussion about the ability of a Co-Executrix to challenge a will she offered for probate. Normally, offering the will for probate works as an estoppel. Here, however, the Co-Executor probated a will and codicil at the same time. Other family members challenged the codicil, and the Co-Executor eventually agreed that it was not subject to probate. She was then free to challenge the will because the terms of the will for her benefit were significantly different than the combined terms of the will and codicil.

Benningfield’s wrongful discharge claim, under KRS 338.121, is preempted because the statute provides both the unlawful act and specifies the civil remedy available to aggrieved parties.

Mere termination of an employee clearly does not rise to the level of outrageous conduct required to support an IIED claim.

Black Letter Law a la Barber.  Court of Appeals decisions are oft times excellent sources of black letter law.  Judge Barber outdid himself on this one with an excellent summary of the law on several key elements in the decision which were then followed by a cogent factual basis in support of the decision consistent with the law.  Here are few:

WRONGFUL DISCHARGE:  
When KRS 338.121 is read, it is clear that it forbids the firing of an employee for filing a complaint with OSHA. Also, it specifies that any employee “who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may . . . file a complaint with the commissioner alleging such discrimination.” Therefore, we find that KRS 338.121 provides both the public policy exception and provides the remedy for its violation.


Employment relations in Kentucky are generally terminable at will. Firestone Textile Co. v. Meadows, 666 S.W.2d 730 (Ky. 1984). As such, "[a]n employer may discharge his at-will employee for good cause, for no cause, or for a cause that some might view as morally indefensible." Id. at 731. However, "[a]n employee has a cause of action for wrongful discharge when the discharge is contrary to a fundamental and well-defined public policy as evidenced by existing law. . .." Id. . . .  Thus, an employee may file a wrongful discharge claim if he or she was terminated in violation of a well-defined public policy. But, this exception only applies when the statute creating the public policy exception does not provide a structure for pursuing a claim. Grzyb v. Evans, 700 S.W.2d 399, 401 (Ky. 1985).

TORT OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Kentucky has long recognized the tort of intentional infliction of emotional distress (IIED). See Craft v. Rice, 671 S.W.2d 247 (Ky. 1984). In Kentucky, a party can recover under IIED if it is shown that: (1) the wrongdoer's conduct was intentional or reckless, (2) the wrongdoer’s conduct was outrageous and intolerable, (3) there is a causal connection between the conduct and the emotional distress, and (4) the emotional distress suffered is severe. Wilson v. Lowe’s Home Center, 75 S.W.3d 229, 238 (Ky.App. 2001).

[First] [I]n order for conduct to be considered "extreme and outrageous" it must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency . . . ." Humana of Kentucky, Inc. v. Seitz, 796 S.W.2d 1, 3 (Ky. 1990).

Mere termination clearly does not rise to the level of outrageous conduct required to support an IIED claim. Other jurisdictions which follow the Restatement (Second) of Torts § 46, as Kentucky does, have held that termination does not rise to the level of outrageous conduct required for an IIED claim. Craft v. Rice, supra at 251.

The Sixth Circuit, applying Ohio law, held that "an employee's termination, even if based upon discrimination, does not rise to the level of ‘extreme and outrageous conduct’." Godfredson v. Hess & Clark, Inc., 173 F.3d 365, 376 (6th Cir. 1999).

Second, to meet the standard of severe emotional distress the injured party must suffer distress that is "substantially more than mere sorrow." Gilbert v. Barkes, 987 S.W.2d 772, 777 (Ky. 1999).

SUMMARY JUDGMENT STANDARD OF REVIEW ON APPEAL

"The . . . purpose of . . . summary judgment is to terminate litigation when, as a matter of law, it appears that it would be impossible for the respondent to produce evidence at the trial warranting a judgment in his favor and against the movant." Roberson v. Lampton, 516 S.W.2d 838, 840 (Ky.App. 1974). Summary judgment should only be granted "where the movant shows that the adverse party could not prevail under any circumstances." Paintsville Hospital Company v. Rose, 683 S.W.2d 255, 256 (Ky. 1985). "The standard of review on appeal of a summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky.App. 1996). In making this determination, "[t]he record must be viewed in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky. 1991). Since factual findings are not at issue, Scifres v. Kraft, supra at 781, the decision shall be reviewed de novo. Revenue Cabinet v. Hubbard, supra at 719.

RESISTING SUMMARY JUDGMENT

Also, Benningfield asserts that summary judgment was not proper because he had not completed discovery at the time the judgment was entered. When reviewing a motion for summary judgment "[t]he inquiry should be whether, from the evidence of record, facts exist which would make it possible for the nonmoving party to prevail. In the analysis, the focus should be on what is of record rather than what might be presented at trial." Welch v. American Publishing Co. of Kentucky, 3 S.W.3d 724, 730 (Ky. 1999). "When the moving party has presented evidence showing that despite the allegations of the pleadings there is no genuine issue of any material fact, it becomes incumbent upon the adverse party to counter that evidentiary showing by some form of evidentiary material reflecting that there is a genuine issue pertaining to a material fact." Neal v. Welker, Ky., 426 S.W.2d 476, 479 (1968). However, "[t]he hope or bare belief . . . that something will ‘turn up,’ cannot be made basis for showing that a genuine issue as to a material fact exists." Id. at 479-80. In the present case, Benningfield has not alleged anything that would support his IIED claim, and the hope that something will come to light in additional discovery is not enough to create a genuine issue of material fact. Therefore, the timing of summary judgment was also proper.

This appeal involved statutory construction of KRS 216B.115(2), which provides in part that upon the filing of a petition for appeal of "Summons shall be issued upon the petition directing the adverse party or parties to file an answer within twenty (20) days after service of summons."   The appeal is considered an original action.  "In City of Campbellsville the court held that the filing of a petition and the issuance of summons commenced the action. Once the action was properly commenced, delay in serving the proper party was not fatal to the action. City of Campbellsville at 164. On the other hand, failure to cause the summons to be timely issued bars a cause of action even if the complaint has been timely filed. CR 3; Delong v. Delong, 335 S.W.2d 895 (Ky. 1960); Eades v. Clark Distrib. Co., 70 F.3d 441 (6th Cir. 1995), cert. denied, 517 U.S. 1157, 116 S.Ct. 1545, 134 L.Ed.2d 649 (1996). Here the action was not commenced within the prescribed time, leaving the circuit court without jurisdiction over the case.

In Taylor v. Kennedy, 700 S.W.2d 415 (Ky.App. 1985), this court held that a trial court "is precluded from entering either a directed verdict or judgment n.o.v. unless there is a complete absence of proof on a material issue in the action, or if no disputed issue of fact exists upon which reasonable men could differ." Id. at 416. The facts in the Hazelwood case are distinguishable from those herein. In that case, the medical expenses and lost wages were clearly the result of the severe injury sustained in the accident. Here, there was a disputed fact upon which reasonable men could differ concerning the reason Dixon had incurred medical expenses and lost wages. 

There was evidence that the damage done to the vehicles was not extensive, and there was evidence in the medical records of inconsistencies in Dixon’s physical complaints to her medical providers and her testimony at trial.2 In short, the issue of lost wages was properly presented to the jury, and the trial court did not err in failing to grant Dixon’s directed verdict motion or her motions for a new trial and/or a judgment notwithstanding the verdict. * * *

"[O]ur only function in reviewing the denial of a motion for new trial is to decide whether the trial judge abused his discretion." McVey v. Berman, 836 S.W.2d 445, 448 (Ky.App. 1992). Further, the trial judge’s decision is "presumptively correct," and we will not reverse that decision unless it is clearly erroneous. Id.

At first blush this case sounds like a Miller v. Swift issue, but it is not.  Why?  Miller v. Swift dealt with an award of medicals but nothing for pain and suffering.  Dixon involved no award for medicals which is why the appeal addressed the denial of a directed motion verdict on lost wages (but it does not appear there was such a motion for d.v. on pain and suffering).  

Analytically speaking, this is where the focus on Miller v. Swift should be rather than on the award with a return to the issues of causation rather than pain, suffering, anguish and inconvenience since all of the analysis in Miller v. Swift is causation-keyed but the jury nonetheless awarded the medicals.  In the 'old' days, the court's recognized an inconsistent verdict problem, and how can you have medical expenses caused by the accident but no other damages.  Remember, the term "pain and suffering" is actually a short-hand term for the actual elements of damages in the No Fault statute - pain, suffering, mental anguish, and inconvenience.  Furthermore, one would think that meeting the threshhold requirements for suit under the No Fault Act would mean that pain and suffering and mental anguish and inconvenience most assuredly follows with the only question being the dollar amount (no this is the legislature speaking and not me since there is no suit for pain and suffering etc. unless the threshhold has been met!).

Our standard of review of a decision of the Board "is to correct the Board only where the Court perceives the Board has overlooked or misconstrued controlling statutes or precedent, or committed an error in assessing the evidence so flagrant as to cause gross injustice." Western Baptist Hospital v. Kelly, 827 S.W.2d 685, 687-88 (Ky. 1992).