The Supreme Court did not issue any opinions in August.
Court of Appeals
Employment - Public School Teachers Certification
Hicks v. Magoffin County Board of Education , 192 S.W.3d 335, 2009 WL 2569107 (Ky.App. August 21, 2009)
The plaintiff was a certified special education teacher who applied for a position with the Magoffin County Board of Education. He was not hired, and the Board hired a noncertified but qualified teacher instead. An emergency certificate had been approved by the Standards Board. The School Board followed the procedure set forth in KRS 161.100. The record indicated that the plaintiff had received a poor recommendation by his prior employer and was at the time under review by the Standards Board. The School Board also showed that it believed plaintiff had poor communication skills and his application was poorly drafted in terms of grammar. Summary Judgment for the School Board was affirmed.
Hamilton v. Trans Union Settlement Solutions, Inc. , 295 S.W.3d 844, 2009 WL 2475430 (Ky.App. August 14, 2009)
This was a case involving a negligently performed title search, and contains an interesting discussion of the duty owed and how it extends to certain third parties. The Court also notes that the duty to supply correct information is not limited to title searches, but extends to all business transactions. In this case, a co-defendant settled and the settlement included pre-judgment interest and attorneys fees. The trial Court felt that this settlement was a fraud upon the Court and deducted the amount paid in interest and attorney fees from the damages claimed against Trans Union. The Court reversed on the ground that there is nothing wrong with settling for items of damage that are not recoverable at law, and the conduct of the parties and counsel were subject to other remedies (such as contempt) but that it did not have authority to reduce the damages alleged.
Employment - State Employee Whistleblower Statute (KRS 61.102)
Thornton v. Office of the Fayette County Attorney , 292 S.W.3d 324, 2009 WL 2475329 (Ky.App. August 14, 2009)
The trial Court had held that in order for a report to be in good faith, it had to be based on personal knowledge. The Court of Appeals held that a report may be based on hearsay, but nonetheless held that Thornton did not meet the requirement. The Court said that good faith required that 1) the employee have a reasonable belief in the informationís accuracy, and 2) the employee manifest some desire to correct the wrongful activity reported. Thornton was not in a position to know the accuracy of the report because her work was primarily out of the office, and she was just reporting a claim that was being reported by someone else, and thus did not meet the good faith requirement.
The Court also noted that in order to bring a claim against a particular person under KRS 61.102 it must be shown that the person knew of the report at the time of termination.
Employment - Public Policy Exception to At-Will - Refusal to Commit a Crime
Welsh v. Phoenix Transportation Services, LLC , 2009 WL 2475206 (Ky.App. August 14, 2009), ordered depublished March 10, 2010 (2009-SC-571-D)
The plaintiff was a CPA who had been employed as controller and CFO for Phoenix. Phoenix received rebate checks from Pilot when it bought fuel, and one of the owners of Phoenix, Warren, sent an email to an employee asking that the Pilot checks be deposited into his personal account, and copied Welsh. Welsh told Warren that she believed the proposed transaction was tax fraud. An audit raised no question about the payments. About a month later, Phoenix had an outside consulting form review its business, and they recommended that Welsh be terminated to improve morale. The Court held that Welsh could not bring an action for wrongful termination since she was not asked to act or refrain from acting illegally. Her personal opinion that the transaction was illegal was insufficient to take her outside of the at-will doctrine.
The Court also addressed the claim that the hiring of the outside consultant was a pretext for her termination. The Court noted that the only indication of that was her assertion itself, and an assertion is not proof.