JUNE 1, 2007 KENTUCKY COURT OF APPEALS DECISIONS (2006:27)
MINUTES from AOC for this week saved at our site (No. 580-603 with 2 published decisions and click here for the AOC's Official Minutes [which is provided for backup purposes].
PUBLISHED (COA).
JACKSON V. TULLARThe CA affirms as to the amount of compensatory damages and reverses as to the punitive damage award. The case is remanded for a new trial on the issue of apportionment of liability between the parties.
Jackson was an injured passenger in an alcohol-related single
vehicle MVA where Duncan was the driver. The parties went to several bars that
night; their last party stop was the Ginger & Pickles nightclub where they
were served a “pickle bowl,” a concoction of pure grain alcohol and
Kool-Aid. Jackson ultimately sued bar owners, shareholders, and her carrier. The
case went to trial against the driver, the last bar to serve him, and the
bar’s owner. The jury was instruction on a 4-way apportionment of fault
between the plaintiff, the driver, the second-to-the-last bar to serve them and
the last bar to serve them. The jury assessed fault as follows: 10% to
plaintiff; 20 % to driver; and 35% to bar. The jury awarded compensatory damages
of $1,600,000. The jury then found the driver, the last bar and the last bar’s
owner to be grossly negligent, but only assessed punitives against the last bar
($350,000) and its owner ($150,000). On appeal, all parties challenge the
apportionment of fault.
In DeStock #14, Inc. v. Logsdon, 993 S.W.2d 952 (Ky. 1999), the Kentucky
Supreme Court examined the language of KRS 413.241, commonly referred to as the
Dram Shop Act, and concluded that liability may be imposed upon a dram shop
despite the statute’s express declaration that a dram shop’s actions cannot,
as a matter of law, be considered the proximate cause of any injury inflicted by
an intoxicated person. This means the tortfeasor remains primarily liable while
the dram shop is secondarily liable. Also, the dram shop and the tortfeasor are
not concurrently negligent, but instead have committed two separate and
independently tortuous acts. Because of these distinctions, the apportionment is
improper. The instruction should have required the jury to apportion fault
between just the driver and the passenger. Then, only after the jury found the
driver to have some percentage of fault, should the jury have determined whether
the elements of the Dram Shop Act were satisfied such that either or both dram
shops could be held secondarily liable. Because it is now impossible to know how
the jury might have apportioned under this instruction, the case must be
reversed and remanded for a new trial.
Both parties also appeal the award of punitive damages. CA concludes that
punitives cannot be recovered in a dram shop action.
Digested by John
Hamlet
The dispositive issues in this appeal are whether appellants, King's Daughters Medical Center and its chief financial officer, Paul McDowell, were
entitled to judgment as a matter of law on Dr. Mary Beth Calor's claims of defamation and tortious interference with contractual relations which she based upon
communications appellants made to Staff Care, Inc. concerning her billing practices. A jury trial resulted in an award to Dr. Calor in the amount of $175,000.00 for emotional and mental distress, $59,050.00 in lost wages, and $300,000.00 in punitive damages.
Because there is no dispute as to the nature of the appellants' statements or the context in which they were communicated to Staff Care, appellants were entitled to application of a qualified privilege as a matter of law on the defamation claim and a verdict in their favor on the tortious interference claim. The judgment must therefore be reversed.
In December 2001, the quality assurance department at Staff Care became concerned about the number of hours Dr. Calor was claiming. Michelle
VonLuckner,who was Staff Care's scheduling consultant for Dr. Calor, initially contacted Dr. Calor's husband, who was also her business manager, concerning the accuracy of the hours
claimed. He assured Ms. VonLuckner that the hours claimed were accurate.
Nevertheless, Staff Care's concerns over the number of hours Dr. Calor was claiming continued, based primarily on the fact that they were paying “outrageous malpractice
premiums” due to the extraordinary amount of actual patient contact she was claiming on the
form with Staff Care "red-flagging" many of her bills as involving a questionable number of hours.
Dr. Calor was terminated by the hospital after she refused to meet with their
CFO without her business manager-husband being present. The Hospital CFO
(McDowell) then contacted notified Staff Care Dr. Calor had been based upon suspicion that she had been
over-billing and that the hospital was investigating her billing records.
As to the defamation claim, the COA was convinced that upon the undisputed facts of this case appellants were protected by a qualified privilege in reporting the results of their investigation into Dr. Calor's billable hours to Staff Care.
Under the “common interest” theory, as explained by the Supreme Court of Kentucky in
Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 796 (Ky. 2004), appellants clearly had the right, if not the duty, to investigate and convey their concerns about Dr. Calor 's billing to Staff Care which had a corresponding interest in the accuracy of her
hours. The Court in Stringer also provides guidance as to the conditional nature of qualified privileges and the circumstances under which the right to claim the privilege may be
lost. The condition attached to all such qualified privileges is that they must be exercised in a reasonable manner and for a proper purpose. The immunity is forfeited if the defendant steps outside
the scope of the privilege, or abuses the occasion. The qualified privilege does not extend
to the publication of irrelevant defamatory matter with no bearing upon the public or private interest which is entitled to protection.
COA found there is no question that King's Daughters' communications to Staff Care concerning its investigation into Dr. Calor's hours fall squarely within the Stringer rationale.
Based upon these factors, appellants were entitled to judgment on Dr. Calor's defamation claims as a matter of law. We are thus convinced that the trial court erred in allowing either the defamation claim or the tortious interference claim to be resolved by a jury.
Accordingly, the judgment in her favor is reversed and the case remanded for entry of an order dismissing those claims.
NOT PUBLISHED (COA)
INTEGRATED TELECOM SERVICES CORP. V. LINN STATION PROPERTIES LLCHOLLIS
V. HOLLIS
CIVIL PROCEDURE: NO RIGHT TO VIDEOTAPING PROCEEDINGS WHEN NOT
AVAILABLE
APPEALS: FRIVOLOUS APPEALS
2005-CA-000770
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
GERSTLE
V. CLAY
CIVIL PROCEDURE: AMENDING COMPLAINT; PROPERTY PARTY (INDIVIDUAL LAWYER OR
PSC)
2006-CA-000121
NOT PUBLISHED; REVERSING AND REMANDING
DATE RENDERED: 6/1/2007
JONES
V. COM.
CRIMINAL: 11.42 AND NEWLY DISCOVERED EVIDENCE
2005-CA-002559
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
MORRISON
V. COM.
CRIMINAL: CUSTODIAL INTERROGATION; COERCION
2005-CA-002602
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
GALL
V. COM.
CRIMINAL:
HABEAS CORPUS: COMPLIANCE WITH FEDERAL ORDER
2006-CA-000112
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
LEWIS V. COM.
CRIMINAL: REIMBURSEMENT OF COUNTY FOR INCARCERATION IN COUNTY JAIL
2006-CA-000996
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
FULTZ
V. FULTZ
FAMILY LAW: INCOMPLETE RECORD ON APPEAL
2005-CA-001923
NOT PUBLISHED; AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
DATE RENDERED: 6/1/2007
GRAVELS V. HALL
FAMILY LAW: DVO
2006-CA-000876
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
MALONE V. KENTUCKY FARM BUREAU MUT. INS. CO.
INSURANCE: COOTS NOTICE AND REQUIREMENT OF "INTENT TO SETTLE"
2006-CA-001276
NOT PUBLISHED; AFFIRMING;
STUMBO (PRESIDING); BUCKINGHAM AND HENRY CONCUR
FROM MCCRACKERN CIR. CT
DATE RENDERED: 6/1/2007
GEORGE HUMFLEET MOBILE HOMES V. CHRISTMAN
WORKERS COMP: REOPENING AND DATE FOR CALCULATION TIME
2006-CA-001153
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
ADKINS V. ST. CLAIRE MED. CENTER
WORKERS COMP: SUBSTANTIAL EVIDENCE
2007-CA-000020
NOT PUBLISHED; AFFIRMING
DATE RENDERED: 6/1/2007
Thanks to Scott Byrd, John Hamlet, Cherry Henault, Sam Hinkle, Chad Kessinger, Hays Lawson, J. Russell Lloyd, Michelle Eisenmenger Mapes , Peter Naake, Paul O'Bryan, Bryan Pierce, Paul Schurman, Michael Stevens and James Worthington for their efforts in digesting Kentucky's appellate decisions.