RODERICK DALE WHITNEY v. JEFFERSON COUNTY FISCAL COURT AND OFFICER WALTER ELDERS
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RENDERED: May 7, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-002654-MR
RODERICK DALE WHITNEY
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE THOMAS J. KNOPF, JUDGE
ACTION NO. 95-CI-005328
v.
JEFFERSON COUNTY FISCAL COURT
AND OFFICER WALTER ELDERS
APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
COMBS, DYCHE, AND SCHRODER, JUDGES.
DYCHE, JUDGE:
Roderick Dale Whitney appeals from an order of the
Jefferson Circuit Court dismissing his action against Jefferson
County and Officer Walter Elders.
We affirm.
The opinion of the learned trial court clearly, adequately,
and accurately sets out the applicable facts and law of this
case.
We adopt it as our own.
On June 15, 1995, Mr. Whitney was detained
by Officer Elders of the Jefferson County
Police Department for approximately two
hours. Officer Elders’ actions were based
upon information received during a “911"
telephone call that mistakenly identified Mr.
Whitney as Aaron Wilson, a suspect in a
murder investigation.
On September 21, 1995, Mr. Whitney filed
an action for false arrest/false imprisonment
against Fiscal Court, the governing body of
Jefferson County. On February 13, 1997,
Fiscal Court filed a motion for summary
judgment on the basis of sovereign immunity.
On February 18, 1997, Mr. Whitney filed a
motion to amend his complaint to add Officer
Elders as a party defendant. Officer Elders
was served with summons and the amended
complaint on March 28, 1997.
On April 14, 1997, Officer Elders filed a
motion to dismiss on the basis that the
amended complaint against him is barred by
the applicable statute of limitations. Mr.
Whitney filed a response to said motion, and
Officer Elders was given leave to file a
reply.
On April 23, 1997, the Court entered an
Opinion and Order denying the motion for
summary judgment brought by Fiscal Court.
While the Court found that the doctrine of
sovereign immunity applies to Fiscal Court as
to Mr. Whitney’s state law claims, the Court
determined (based upon the case law at that
time) that the purchase of insurance under
KRS 65.150 would be an implied waiver of said
immunity.
On May 6, 1997, Fiscal Court renewed its
motion for summary judgment, alleging that it
had not purchased liability insurance
coverage of any kind for the acts of Officer
Elders. Fiscal Court subsequently filed a
second renewed motion for summary judgment on
the basis of Withers v. University of
Kentucky, Ky., 939 S.W.2d 340 (1997), a new
case which holds that the purchase of
liability insurance does not constitute a
waiver of sovereign immunity.
On June 18, 1997, Mr. Whitney filed a
motion to expand and clarify the Court’s
decision of April 23, 1997, so as to hold
that Fiscal Court has the obligation under
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KRS 65.2005 to defend and indemnify Officer
Elders in this action. Fiscal Court filed a
response to said motion on July 3, 1997, and
Mr. Whitney was given leave to file a reply.
OPINION
A county is a political subdivision of
the Commonwealth and as such, it is an arm of
state government protected by the same
sovereign immunity as the state. Cullinan v.
Jefferson County, Ky., 418 S.W.2d 407 (1967).
Thus, in the absence of a legislative waiver
of immunity, a county (just like the state)
is immune from tort liability.
Based on a line of cases following Dunlap
v. University of Kentucky Student Health
Services Clinic, Ky., 716 S.W.2d 219 (1986),
this Court held that KRS 65.150, which
authorizes a county to purchase insurance
covering the liability of its employees and
officials but not for itself, was an implied
waiver of immunity to the extent, if any, of
the purchased insurance.
The recent case of Withers, 939 S.W.2d at
346, however, holds that the legislature
abrogated the Dunlap decision by subsequently
amending KRS 44.072, to require an express
waiver of immunity, and by adding KRS
44.073(14), which provides that the purchase
of liability insurance shall not be construed
as a waiver of immunity.
KRS 44.070 et. seq., the Board of Claims
Act, is applicable to counties since a county
is an arm of state government. Cullinan, 418
S.W.2d at 408. Consequently, KRS 65.150 does
not constitute an implied waiver of Fiscal
Court’s immunity from suit in tort.
Notwithstanding said immunity, Mr. Whitney
argues that Fiscal Court has an obligation to
defend and indemnify Officer Elders in this
case based upon KRS 65.2005 of the Claims
Against Local Governments legislation.
Fiscal Court disagrees. It argues that
Officer Elders in his official capacity is
also cloaked with sovereign immunity and KRS
65.2005 only becomes relevant when an officer
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is sued in his or her individual capacity,
which Mr. Whitney has not done.
Suit against an individual in his or her
official capacity is the equivalent of an
action against the governmental entity (i.e.,
county). The immunity of the county,
however, does not extend to its agents or
employees who are sued in their individual
capacities. Gould v. O’Bannon, Ky., 770
S.W.2d 220 (1989).
Whether or not the cost of this action
and the liability for payment of any judgment
rendered against Officer Elders,
individually, rests with the county, pursuant
to KRS 65.2005, need not be answered unless
Mr. Whitney’s suit against Officer Elders was
timely filed and sought personal liability
against said officer.
Officer Elders argues that Mr. Whitney’s
claim against him is time-barred by the
applicable one-year statute of limitations in
KRS 413.140(1)(c). The alleged incident
involving Mr. Whitney occurred on June 15,
1995, but Mr. Whitney did not seek to amend
his complaint (filed September 21, 1995) to
add Officer Elders as a defendant until
February 18, 1997. Thus, Mr. Whitney’s claim
against Officer Elders is time-barred unless
it relates back to the date of the original
complaint under CR 15.03.
In order for an amended complaint to
relate back to the date of the original
complaint, the requirements of CR 15.03 must
be met. Nolph v. Scott, Ky., 725 S.W.2d 860
(1987). The parties agree that the only
issue involves the requirements of subsection
(2) of CR 15.03, which read, in relevant
part, as follows:
An amendment changing the party
against whom a claim is asserted
relates back if . . . within the
period provided by law for
commencing the action against him,
the party to be brought in by
amendment (a) has received such
notice of the institution of the
-4-
action that he will not be
prejudiced in maintaining his
defense on the merits, and (b) knew
or should have known that, but for
a mistake concerning the identity
of the proper party, the action
would have been brought against
him.
Mr. Whitney argues that notice under CR
15.03(2) should be imputed to Officer Elders
based on an identity of interest between the
officer and Fiscal Court. In 6 Philipps,
Kentucky Practice, CR 15.03, Comment 4 (5th
ed.), it states that an “identity of interest
generally means that the parties are so
closely related in their business operations
or other activities that the institution of
an action against one serves to provide
notice of the litigation to the other.”
Even if this Court were to impute notice
of the litigation to Officer Elders based
upon an identity of interest with Fiscal
Court, such would only satisfy subsection (a)
of CR 15.03(2). Subsection (b) of said rule
requires that Officer Elders knew or should
have known that but for a mistake concerning
the identity of the proper party, the action
would have been brought against him.
Mistake, as used in CR 15.03(2)(b),
involves inadvertence due to mistaken
identity or misnomer or mislabeling.
Kentucky Practice, supra at Comment 7. It
does not involve the situation where a
plaintiff has overlooked a potential claim
during the limitation period and thereafter
seeks to add the new defendant.
As argued by Officer Elders, he was named
in the body of the original complaint as the
officer who falsely arrested/falsely
imprisoned Mr. Whitney. Mr. Whitney clearly
knew the identity of the officer. He is not
trying to substitute Officer Elders as a
defendant because of a mistake concerning the
identity of the proper party.
The Complaint named only Fiscal Court as
a defendant and stated that Fiscal Court was
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liable for the wrongful acts of Officer
Elders under KRS 65.2001(1)(b) and KRS
65.2002. Mr. Whitney could have also named
Officer Elders as a defendant, but he made
the choice or tactical decision to proceed
solely against Fiscal Court.
Consequently, Mr. Whitney’s claim against
Officer Elders fails to meet the requirement
of subsection (b) of CR 15.03(2). Thus, the
amended complaint does not relate back to the
date of the original complaint, and summary
judgment in favor of Officer Elders is proper
on the basis that the claim against him is
time-barred.
The judgment of the Jefferson Circuit Court is
affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE
JEFFERSON COUNTY FISCAL COURT:
Philip C. Kimball
Louisville, Kentucky
David Leightty
Louisville, Kentucky
BRIEF FOR APPELLEE
WALTER ELDERS:
Dave Whalin
Louisville, Kentucky
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