DAN COBBLE d/b/a COVERWISE INDUSTRIES v. KENTUCKY ASSOCIATION OF ELECTRIC COOPERATIVES, INC. d/b/a KENTUCKY LIVING MAGAZINE
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RENDERED: JULY 27, 2001; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
2000-CA-001613-MR
DAN COBBLE d/b/a COVERWISE
INDUSTRIES
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN P. RYAN, JUDGE
ACTION NO. 00-CI-002414
v.
KENTUCKY ASSOCIATION OF ELECTRIC
COOPERATIVES, INC. d/b/a KENTUCKY
LIVING MAGAZINE
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, COMBS, and SCHRODER, Judges.
COMBS, JUDGE:
Cobble appeals the June 21, 2000, order of the
Jefferson Circuit Court dismissing his complaint (brought
pursuant to Kentucky Rules of Civil Procedure (CR) 12.02(f)) for
failure to state a claim upon which relief may be granted.
We
affirm.
Dan Cobble (Cobble)is the owner of Coverwise
Industries, a business which manufactures covers for cooking
grills.
Cobble brought a defamation action against the Kentucky
Association of Electric Cooperatives, publisher of the monthly
magazine, Kentucky Living.
This action arises out of a contract
between the parties pursuant to which Cobble agreed to pay $297
for twelve months, beginning February 2000, for the publication
of a two-inch advertisement for his grill covers in Kentucky
Living.
After Cobble expressed dissatisfaction with the quality
of the first month’s ad, Kentucky Living terminated the contract
and released Cobble from any obligation to pay for future ads.
The ad was published in the March 2000 issue of Kentucky Living
at no charge to Cobble.
On April 10, 2000, Cobble filed a complaint alleging
that he provided the magazine “with all layouts, graphics, and
content of the advertisement”; that he relied on the magazine’s
representations that it would publish an advertisement for him
“consistent with the quality of similar advertising in Kentucky
Living”; that the advertisement actually published was of
“extremely poor graphic and print quality” and that it portrayed
his business “in a libelous and detrimental way.”
He also
alleged that Kentucky Living had
exposed [him] to public riticule, [sic]
contempt, and disgrace, and impuned [sic] the
quality and respectability of [his] business
and of his product.
The complaint contained a claim for breach of contract seeking
refund of $297 paid for the first month’s advertisement.
Kentucky Living moved to dismiss the complaint on the
grounds that defamation could not be premised on the “graphic
quality of an advertisement,” that the ad was not libelous per
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se, and that the amount in controversy in the breach of contract
claim did not meet the monetary threshold necessary to invoke the
jurisdiction of the circuit court.
The trial court dismissed the
complaint with the brief explanation that it agreed in toto with
the position advanced by Kentucky Living.
This appeal followed.
Cobble contends that this case presents an issue of
first impression in Kentucky; that is, whether the magazine’s
“false, crude, and misleading renderings” of his advertisement
and product state a cause of action for defamation.
Cobble does
not argue that the actual words used in the ad are false.
Indeed, a comparison of the copy furnished to Kentucky Living
with the actual advertisement as printed reveals that the words
used by Cobble were not changed by the publisher.
However,
Cobble argues that the depiction of his product, the grill cover,
is so altered and distorted as to “create[] a false image of
[him] in his business,” an image that implies that he “is shoddy
and careless in the conduct of his business.”
Whether the advertisement in Kentucky Living is
libelous per se is an issue of law.
Columbia Sussex v. Hay,
Ky.App., 627 S.W.2d 270, 274 (1981).
Cobble reasons that a
business person pays for advertising in order to create a
positive image of his product.
In general, a manufacturer relies
on advertising to create a market for his product.
However,
advertising that falls short of that objective is not necessarily
defamatory -- much less libelous per se.
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In order to be actionable, a written or printed
publication must “(1) bring a person into public hatred, contempt
or ridicule; (2) cause him to be shunned or avoided; or (3)
injure him in his business or occupation.”
McCall v. Courier-
Journal and Louisville Times Co., Ky., 623 S.W.2d 882, 884
(1981), cert. denied, 456 U.S. 975, 102 S.Ct. 2239, 72 L.Ed. 849
(1982).
Where, as in this case, a claim of libel per se is made
in the context of injury to one’s business or occupation, an
additional showing is necessary: the alleged defamation must also
“contain an imputation of fraud, deceit, dishonesty or other
reprehensible conduct on the part of the merchant.”
Hanks, Ky., 255 S.W.2d 602, 603 (1953).
White v.
Even if we were to
assume that the visual quality of the advertisement was so poor
as to leave viewers with a negative image of Cobble’s business
acumen or the quality of his product, such a defect does not
impute fraud nor does it rise to the level of “reprehensible
conduct” necessary to support a claim of libel per se.
Kentucky law follows the Restatement (Second) of Torts,
§573, which addresses the issue of defamation adversely affecting
one in his business, trade, or profession.
Comment g. of that
section states:
Disparaging words, to be actionable per se .
. . must affect the plaintiff in some way
that is peculiarly harmful to one engaged in
his trade or profession. Disparagement of a
general character, equally discreditable to
all persons, is not enough unless the
particular quality disparaged is of such a
character that it is peculiarly valuable in
the plaintiff’s business or profession.
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Cobble does not argue that the advertisement consisted
of anything other than general disparagement.
Disregarding
Kentucky precedent, he relies on Burton v. Crowell Publishing
Company, Inc., 82 F.2d 154 (2nd Cir.1936), and Rejent v.
Liberation Publications, Inc., 197 A.D.2d 240, 611 N.Y.S.2d 866
(1994), as authority for his argument that a false impression
created by an altered photograph is sufficient in and of itself
to support a claim of libel per se.
However, neither case
relates to an injury to the plaintiff’s business or profession.
Rather, each case involved an altered photograph of the plaintiff
himself (not his product) and a claim that the plaintiff suffered
personal ridicule as a result of the alleged alteration.
The
negative impressions of Cobble or his product(if any) created by
the poor quality of the graphics in the advertisement fail to
sustain a claim of libel per se.
As Cobble did not allege the
existence of special damages, the trial court did not err in
dismissing his complaint for failing to state a cognizable claim
for defamation.
Hill v. Evans, Ky., 258 S.W.2d 917 (1953).
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANT:
BRIEF FOR APPELLEE:
Charles F. Merz
Louisville, KY
Kathy P. Holder
W. Edward Skees
Louisville, KY
ORAL ARGUMENT FOR APPELLEE:
Kathy P. Holder
Louisville, KY
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