RENDERED: AUGUST 12, 2022; 10:00 A.M.

NOT TO BE PUBLISHED

Commonwealth of Kentucky

Court of Appeals

NO. 2021-CA-1394-ME

ANDREW VANCE APPELLANT 

v. 

APPEAL FROM BOONE CIRCUIT COURT

HONORABLE RICHARD A. BRUEGGEMANN, JUDGE

ACTION NO. 20-CI-00574

WHITING-TURNER/KOKOSING 

JOINT VENTURE APPELLEE 

OPINION

AFFIRMING

**   **  **

BEFORE: DIXON, LAMBERT, AND MCNEILL, JUDGES.

DIXON, JUDGE: Andrew Vance appeals the Boone Circuit Court’s order, entered 

November 24, 2021, denying his motion for class certification. After careful 

review of the briefs, record, and law, we affirm. 

BACKGROUND FACTS AND PROCEDURAL HISTORY

Appellee Whiting-Turner/Kokosing Joint Venture (hereinafter 

“WTK”), is the general contractor overseeing the construction of a new Amazon 
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Distribution Center in Boone County, Kentucky. As part of the construction 

process, dynamite blasting commenced in August 2019 and lasted for 

approximately two years. In May 2020, Vance, a residential homeowner who lives 

near the construction site, filed a petition seeking damages based on allegations

that the blasting, which was conducted under WTK’s supervision, constituted a 

temporary nuisance. The petition was later amended to include a claim for 

permanent diminution in value, also known as stigma damages. 

Thereafter, Vance moved to certify a proposed class consisting of all 

residential property owners within a one-mile radius of the construction project 

who acquired their property on or before August 14, 2019. In support, Vance 

included 22 disclosures from residents living in or near the proposed class

boundaries detailing their experiences of the blasting and the ascribed damages,

emails from various individuals discussing complaints from local businesses and 

residents and WTK’s responses thereto, and a declaration from a licensed realtor 

who opined that the blasting has created reputational damage to the class members’

properties resulting in a 10-15% reduction in fair market value. After arguments 

and extensive briefing, the circuit court denied certification, and this interlocutory 

appeal followed. Additional facts will be introduced as they become relevant. 
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STANDARD OF REVIEW

An order granting or denying class action certification is subject to 

immediate expedited appeal. CR1 23.06. We review a circuit court’s decision for 

an abuse of discretion. Hensley v. Haynes Trucking, LLC, 549 S.W.3d 430 (Ky. 

2018). A court abuses its discretion if its decision is “arbitrary, unreasonable, 

unfair, or unsupported by sound legal principles.” Goodyear Tire & Rubber Co. v. 

Thompson, 11 S.W.3d 575, 581 (Ky. 2000). We are mindful that our review is 

limited to the issue of certification and not the merits of Vance’s claims. Hensley, 

549 S.W.3d at 437. If the court’s reasoning is rational and confined to the 

parameters of the requirements for certification of a class, its decision will not be 

disturbed. Id. at 444. 

ANALYSIS

A class action is an exception to the general rule that legal actions 

shall be prosecuted in the name of the real party in interest as it authorizes one or 

more individuals to represent the interests of a larger group. Id. at 442; CR 17.01. 

To maintain a class action, the moving party must satisfy the prerequisites of both

CR 23.01 and CR 23.02. The requirements of CR 23.01 can be summarized as 

numerosity, commonality, typicality, and adequacy of representation. Hensley, 

549 S.W.3d at 442-43. Herein, the court noted it was inclined to agree that Vance 

1 Kentucky Rules of Civil Procedure. 
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had demonstrated both numerosity and adequacy of representation, findings which 

have not been challenged, but that he had not satisfied the requirements of

commonality and typicality. 

CR 23.01(b) necessitates that there be questions of law or fact 

common to the class to be certified. In determining whether commonality has been 

established, the focus is “on whether ‘the defendant’s conduct was common as to 

all of the class members.’” Summit Med. Group, Inc. v. Coleman, 599 S.W.3d 445, 

449 (Ky. App. 2019) (quoting Nebraska Alliance Realty Co. v. Brewer, 529 

S.W.3d 307, 312 (Ky. App. 2017)). CR 23.01(c) mandates that the claims or 

defenses of the representative parties must be typical of the claims or defenses of 

the class. “[C]laims and defenses are considered typical if they arise from the 

same event, practice, or course of conduct that gives rise to the claims of other 

class members and if the claims of the representative are based on the same legal 

theory.” Hensley, 549 S.W.3d at 443 (quoting 6 KURT A. PHILIPPS,JR., DAVID V.

KRAMER & DAVID W. BURLEIGH, PREREQUISITES TO CLASS ACTION, Ky. Prac. R. 

Civ. Proc. Ann. Rule 23.01, Comment 7 (Aug. 2017 update)). 

In concluding these requirements were not met, the court found that 

there were questions of fact which would differ from property to property, and it 

was conceivable that Vance could successfully establish his own claim but fail to 

prove the class members’ claims. Since these findings do not conform with the
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applicable tests, we conclude they do not constitute a sufficient basis to deny 

certification. Consequently, if we were to constrain our review to CR 23.01, as the 

court ostensibly did, we would be forced to reverse and remand for 

reconsideration. However, we are permitted to affirm the court’s decision based 

on any reason supported by the record, and because the crux of the court’s findings 

is that Vance failed to satisfy the requirements of CR 23.02(c), we conclude the 

court did not err in denying certification. See Fischer v. Fischer, 348 S.W.3d 582, 

591 (Ky. 2011), abrogated on other grounds by Nami Res. Co., L.L.C. v. Asher 

Land & Mineral, Ltd., 554 S.W.3d 323 (Ky. 2018). 

To certify a class, a movant must satisfy one of the three requirements 

set out in CR 23.02. Vance elected to proceed under CR 23.02(c) which requires 

that questions common to the class predominate over individual issues. The 

predominance requirement serves to test whether a proposed class is sufficiently 

cohesive that the action will not devolve into mini-trials adjudicating the classwide claims with individual determinations and proof. Manning v. Liberty Tire 

Servs. of Ohio, LLC, 577 S.W.3d 102, 116 (Ky. App. 2019). “Class-wide issues 

predominate if resolution of some of the legal or factual questions for class-wide 

resolution can be achieved using generalized proof, and if these particular issues 
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are more substantial than those requiring individualized proof.” Id. (citing Thacker 

v. Chesapeake Appalachia, L.L.C., 259 F.R.D. 262, 268 (E.D. Ky. 2009)).

2

 

Citing Muncie v. Wiesemann, 548 S.W.3d 877 (Ky. 2018), a seminal 

case on the issue of stigma damages in Kentucky, the court found that Vance was 

required “to prove actual damages and that damages for the actual injury [i.e.,

repair costs] alone would be insufficient to make him whole.” The court then 

concluded, because the resolution of these issues would necessitate an examination 

of the facts specific to each class member, class certification was not proper. 

Vance asserts the court misinterpreted the requirements for proving stigma 

damages. 

First, regarding the cost of repairs, Vance argues this Court held, in 

Mountain Water District v. Smith, 314 S.W.3d 312 (Ky. App. 2010), that Kentucky 

law does not require a claimant to establish the cost of repair when diminution in 

value is the only damage sought. Accordingly, Vance opines that the court erred in 

denying certification based on the erroneous conclusion such evidence was 

necessary. 

We disagree with Vance’s reading of Smith. The case does not hold 

that cost of repair evidence is never required in diminution actions but, rather, the 

2

 As CR 23 and Federal Rule of Civil Procedure 23 are similar, federal case law is persuasive in 

interpreting CR 23. See Curtis Green & Clay Green, Inc. v. Clark, 318 S.W.3d 98, 105 (Ky. 

App. 2010). 
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Smith Court held as an exception to the general rule that such evidence was not 

necessary when the claimants expressly plead irreparable injury and present 

evidence to that effect. Since Vance has not made a similar claim or presentation 

of evidence, the exception is not applicable herein. Further, Vance’s contention is 

contrary to the guidance the Supreme Court of Kentucky provided in Muncie, 548 

S.W.3d at 879-81. Muncie involved the dismissal of an action for stigma damages 

on the basis the claimants had already received a partial settlement for repair costs. 

Id. Reversing, the Court explained that stigma damages may be proper if 

remediation damages are insufficient to make the injured party whole and 

remanded the matter for a factual determination as to whether the claimants were 

fully compensated by the partial settlement. Id. Clearly, the cost of repair is 

necessary evidence for a claim for stigma damages; therefore, we disagree that the 

court erred in considering the need for individualized evidence on the issue. 

Our review is not complete however, as the need for individual 

damages determinations does not wholly bar class certification. Manning, 577 

S.W.3d at 117 (citing Olden v. LaFarge Corp., 383 F.3d 495, 509 (6th Cir. 2004); 

Sterling v. Velsicol Chemical Corp., 855 F.2d 1188, 1197 (6th Cir. 1988)). It is,

nevertheless, an important factor to our ultimate determination of whether common 

issues and facts predominate. Id. We turn now to Vance’s remaining argument. 
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As to proof of an actual injury, Vance concedes it is an essential 

element for stigma damages and seemingly acknowledges that claims based on 

physical harm to the property would require evidence on a property-by-property 

basis. Nevertheless, Vance maintains that the court erred in finding that 

individualized proof would be required where he has presented ample evidence 

that the class as a whole was deprived the use and enjoyment of their property. For 

the following reasons, we again disagree. 

While Vance is correct that the unreasonable interference of an 

owner’s use and enjoyment of a property can satisfy the requirement of an actual 

injury, Smith v. Carbide and Chemicals Corporation, 226 S.W.3d 52, 57 (Ky. 

2007), the nature of the injury does not impact the burden of proof. As the Court 

made clear in Carbide, the “unreasonable interference with the property owner’s 

possessory use of his/her property is sufficient evidence of an actual injury[,]” and 

“[t]he amount of harm, if any, to the individual parcels . . . will depend upon the 

proof introduced at trial – an issue of fact.” Id. (emphasis added). 

The interplay between the proof necessary to establish an actual injury

and the preponderance requirement for class certification was considered in

Manning, 577 S.W.3d 102. In Manning, a large fire burned in excess of two days

causing a smoke plume to deposit particulate matter onto surrounding properties 

and local authorities to issue a shelter-in-place (SIP) order for residents within a 
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one-mile radius of the blaze. Id. at 108. Two residents seeking to recover

damages moved to certify a class consisting of those who were impacted by the 

particulate matter, as established by the report of a forensic meteorology expert

who tracked the path of the smoke plume, and residents who were subject to the 

SIP order. Id. at 108-09. On appeal, this Court agreed that the preponderance 

requirement was not met where numerous questions – such as whether particulate 

matter actually landed on the property of the individual class members and whether 

the SIP order impacted the individual class members’ ability to enjoy their 

property – would need individualized answers and affirmed the denial of 

certification. Id. at 116-18. 

Applying Manning, we cannot say the court erred by denying 

certification herein. It is noteworthy that the harmful conduct in Manning arose 

from an isolated event, occurring over a relatively short period of time, and the 

class claimed only two discrete injuries – particulate matter deposits and the loss of 

use and enjoyment due to the SIP order. Conversely, herein the blasting occurred 

in different locations over a two-year period, and Vance has cited multiple types of 

injuries – excessive vibrations, loud noises, personal items moving or falling, 

cracks in surfaces, sinking foundations, separation of porches, dust, and family pets 

being disturbed. The complete lack of uniformity regarding causation and injury 
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underscores the glaring need for individualized proof in this matter which extends 

beyond the issue of determining damages. 

Accordingly, we conclude that Vance has failed to satisfy the 

predominance requirement of CR 23.02(c) and, thus, the court did not abuse its 

discretion in denying the proposed class certification. 

CONCLUSION

Therefore, and for the foregoing reasons, the order of the Boone 

Circuit Court is AFFIRMED.

ALL CONCUR.

BRIEFS FOR APPELLANT:

Ronald R. Parry 

Cincinnati, Ohio

Philip Taliaferro, III

Erlanger, Kentucky 

Alexander F. Edmondson

Covington, Kentucky

Christopher Wiest

Crestview Hills, Kentucky 

BRIEF FOR APPELLEE:

Edward H. Stopher

Earl L. Martin III

Louisville, Kentucky