BOARD OF CLAIMS OF KENTUCKY v. RAYMOND BANKS and POWELL COUNTY FISCAL COURT
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RENDERED: October 20, 2000; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-001001-MR
BOARD OF CLAIMS OF KENTUCKY
v.
APPELLANT
APPEAL FROM POWELL CIRCUIT COURT
HONORABLE LARRY MILLER, JUDGE
ACTION NO. 96-CI-00106
RAYMOND BANKS and
POWELL COUNTY FISCAL COURT
APPELLEES
OPINION
REVERSING AND REMANDING
* * * * * * * * * *
BEFORE:
BUCKINGHAM, EMBERTON, and SCHRODER, Judges.
BUCKINGHAM, JUDGE.
The Board of Claims of Kentucky (Board)
appeals from an order of the Powell Circuit Court remanding a
claim by Raymond Banks to the Board for a trial on the merits.
We conclude that the Board properly dismissed Banks’s claim
against the Powell County Fiscal Court for lack of jurisdiction
and that the trial court erred in remanding the claim to the
Board.
We therefore reverse and remand.
Banks, a state prison inmate serving a prison sentence
in the Powell County Jail, was injured on May 26, 1995, while
operating a front end loader for the Powell County Road
Department.
Banks filed suit in the Powell Circuit Court against
Powell County (not the Powell County Fiscal Court) for damages
allegedly resulting from the negligent maintenance of the front
end loader.
The Powell Circuit Court granted Powell County’s
motion for summary judgment on the ground that the county was
protected from tort liability due to sovereign immunity.
The
court’s order stated that “[t]he only recourse for those who
believe they are injured or damaged by the activities of the
government or its agents is a resort to a proper claim before the
Board of Claims.”
In July 1998, Banks filed an action in the Board
against the Powell County Fiscal Court for damages due to the
alleged injuries he sustained in the 1995 accident.1
Based on a
blanket order the Board had entered on May 21, 1998, holding that
it did not have jurisdiction over claims against counties, the
Board dismissed Banks’s claim.
Banks then petitioned the Powell
Circuit Court to review the Board’s order dismissing his claim,
and the court reversed the Board and remanded the claim for a
trial on the merits.
In doing so, the court held that the Board
had jurisdiction over the claim.
This appeal by the Board
followed.
The Board argues that the trial court erred when it
concluded that the Board had jurisdiction of Banks’s claim
against the Powell County Fiscal Court.
1
It argues that counties
The Powell County Fiscal Court asserts that Banks’s claim
against it is barred by the one-year statute of limitation set
forth in KRS 44.110(1). Because the Board dismissed the claim
for lack of jurisdiction, it did not address this issue in its
order.
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have sovereign immunity and that the statutes relative to the
Board of Claims, KRS2 44.070-160, do not constitute a waiver of
sovereign immunity with respect to county governments.
It
asserts, therefore, that it had no jurisdiction of Banks’s claim.
KRS 44.070(1) provides in pertinent part as follows:
A Board of Claims . . . is created and vested
with full power and authority to investigate,
hear proof, and to compensate persons for
damages sustained to either person or
property as a proximate result of negligence
on the part of the Commonwealth, any of its
cabinets, departments, bureaus, or agencies,
or any of its officers, agents, or employees
while acting within the scope of their
employment by the Commonwealth or any of its
cabinets, departments, bureaus, or agencies .
. . .
KRS 44.072 provides in part that
[i]t is the intention of the General Assembly
to provide the means to enable a person
negligently injured by the Commonwealth, any
of its cabinets, departments, bureaus or
agencies, or any of its officers, agents or
employees while acting within the scope of
their employment by the Commonwealth or any
of its cabinets, departments, bureaus or
agencies to be able to assert their just
claims as herein provided. The Commonwealth
thereby waives the sovereign immunity defense
only in the limited situations as herein set
forth. It is further the intention of the
General Assembly to otherwise expressly
preserve the sovereign immunity of the
Commonwealth, any of its cabinets,
departments, bureaus or agencies or any of
its officers, agents or employees while
acting in the scope of their employment by
the Commonwealth or any of its cabinets,
departments, bureaus or agencies in all other
situations except where sovereign immunity is
specifically and expressly waived as set
forth by statute.
2
Kentucky Revised Statutes.
-3-
KRS 44.073(11) states that “[e]xcept as otherwise provided by
this chapter, nothing contained herein shall be construed to be a
waiver of sovereign immunity or any other immunity or privilege
maintained by the Commonwealth, its cabinets, departments,
bureaus, and agencies and its officers, agents, and employees.”
In Franklin County v. Malone, Ky., 957 S.W.2d 195
(1997), the Kentucky Supreme Court stated, in dicta, that “[t]he
Court of Appeals erroneously held that KRS 44.070 et seq. has no
application to counties.”
Id. at 203-204.
Following the supreme
court’s opinion in Malone, the Board began receiving numerous
claims against various Kentucky counties.
When the Board entered
its blanket order on May 21, 1998, stating that it had no
jurisdiction over counties, the Board noted that it had received
forty-three separate claims against various Kentucky counties
since Malone.
In its blanket order resolving the issue, the
Board stated that it was aware of the aforementioned language in
Malone but that it could not infer from the language that the
supreme court had overruled its holdings to the contrary in Gnau
v. Louisville & Jefferson County Metropolitan Sewer District,
Ky., 346 S.W.2d 754, 755 (1961), and Board of Education of
Rockcastle County v. Kirby, Ky., 926 S.W.2d 455, 456 (1996).
We
agree with the Board that claims against counties may not be
brought in the Board of Claims and that the supreme court has not
overruled these decisions.
In Ginter v. Montgomery County, Ky., 327 S.W.2d 98
(1959), the appellant was the administratrix of a deceased
person’s estate who brought an action against a county and fiscal
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court to recover damages for wrongful death due to negligence.
The appellant argued that the Board of Claims Act should be
construed as having expressly waived the immunity of counties.
In rejecting the appellant’s argument, the court held that “our
Board of Claims statute does not completely abrogate the doctrine
of immunity even as to the state government, and as to local
governments it does not purport to waive any immunity.”
100 (emphasis added).
Id. at
Thereafter, in Cullinan v. Jefferson
County, Ky., 418 S.W.2d 407 (1967), the court held that “[w]hen
the people of this Commonwealth want sovereign immunity waived as
to counties or county boards of education, their elected
legislative representatives will be charged with this
responsibility.”
Id. at 409.
In the Gnau case, the court was faced with the issue of
whether the Board had jurisdiction over the Louisville and
Jefferson County Metropolitan Sewer District.
While the court
noted that the sewer district was an agency of the state, it
refused to hold that it was a state agency as that term is used
in KRS 44.070.
In determining what was meant by a state agency
which could be subject to the jurisdiction of the Board of
Claims, the court held:
As is apparent from the above-quoted sections
of the statute the waiver of immunity
attaches only to those agencies which are
under the direction and control of the
central State government and are supported by
monies which are disbursed by authority of
the Commissioner of Finance out of the State
treasury.
346 S.W.2d at 755.
This two-pronged test in Gnau was reiterated
by the Kentucky Supreme Court in Kentucky Center for the Arts
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Corporation v. Berns, Ky., 801 S.W.2d 327, 331 (1990).
Then, in
the Kirby case, the Kentucky Supreme Court held that “[t]he act
[Board of Claims Act] is limited to subdivisions of the central
state government.
There is no statement that the act applies to
local government . . . .”
926 S.W.2d at 456.
Finally, the Kentucky Supreme Court stated in Malone
that “[i]n any event it is well settled that in the absence of
waiver, the county is immune from tort liability.
The
legislature has not expressly waived the immunity of the county
from suit in tort.”
957 S.W.2d at 203 (emphasis added).
While
that statement from the Malone opinion would appear to hold that
the legislature has not waived sovereign immunity for counties,
the court thereafter stated in dicta that this court had erred in
holding that the Board of Claims Act has no application to
counties.
Id.
We believe that we are neither bound by the dicta
in the Malone opinion3 nor do we believe that the Kentucky
Supreme Court intended to overrule prior precedent with that
statement.
It is clear that the Board of Claims Act allows claims
for damages due to negligence against the Commonwealth or any of
its cabinets, departments, bureaus, or agencies, or any of its
officers, agents, or employees.
KRS 44.070(1).
In order for
there to be a further waiver of immunity, an express waiver is
required.
Withers v. University of Kentucky, Ky., 939 S.W.2d
3
Dicta in an opinion is not authoritative or binding on a
reviewing court. See Stone v. City of Providence, 236 Ky. 775,
778, 34 S.W.2d 244, 245 (1930); Cawood v. Hensley, Ky., 247
S.W.2d 27, 29 (1952).
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340, 345 (1997); Malone, 957 S.W.2d at 203.
Therefore, as stated
in Malone, “in the absence of waiver, the county is immune from
tort liability.”
Id.
The fact that the Board of Claims Act does
not vest jurisdiction in the Board of Claims over counties is
clearly supported by the precedents set forth in Ginter,
Cullinan, Gnau, and Kirby.
Because the Board of Claims Act does
not expressly waive sovereign immunity for counties, the Board
was correct in finding that it had no jurisdiction of Banks’s
claim against the Powell County Fiscal Court.
The order of the Powell Circuit Court is reversed, and
this matter is remanded for the entry of an order affirming the
Board’s dismissal of Banks’s claim.
SCHRODER, JUDGE, CONCURS.
EMBERTON, JUDGE, DISSENTS BY SEPARATE OPINION.
EMBERTON, JUDGE, DISSENTING.
I respectfully dissent.
Although the majority adequately supports its opinion with
precedent, I believe the premise upon which its authority is
based is illogical and wrong.
Moreover, the holding in such
cases is unfair to those who are injured as the result of the
negligence of a county government, rather than by the negligence
of the state, in that the opportunity to seek relief is granted
to one while being arbitrarily and unreasonably denied to the
other.
More important however, is that Withers v. University of
Kentucky4 compels a result contrary to the majority holding.
4
Ky., 939 S.W.2d 340 (1997).
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The General Assembly, through enactment of the Board of
Claims Act,5 has provided a means by which those persons
negligently injured at the hands of the Commonwealth, any of its
cabinets, departments, bureaus or agencies may seek limited
relief.
The enumeration of these sub-entities, set out in KRS
44.072, does not necessarily suggest a legislative intent to
exclude counties.
To contend that it does is no different from
arguing that since “counties” is not specifically set out in
Section 231 of the Kentucky Constitution, sovereign immunity is
not granted to counties.
Just as we find the grant of sovereign
immunity to the Commonwealth and the county to be coextensive, I
know of no reason that the waiver of immunity for the
Commonwealth and for the county should not likewise be
coextensive.
For such purpose they should be considered
inseparable unless expressly said by the General Assembly to be
otherwise.
However, until Withers, our courts have consistently
held to the contrary as the majority correctly points out.
Since Ginter v. Montgomery County,6 our courts have
universally held that KRS 44.072 does not waive the sovereign
immunity of counties, resulting, of course, in a denial of
jurisdiction to the Board to hear claims against counties.
In
Ginter, the estate of a fatally injured grader operator sued
Montgomery County, arguing that the Board of Claims Act has the
effect of waiving the county’s immunity.
Without any supporting
5
Kentucky Revised Statutes (KRS) 44.070.
6
Ky., 327 S.W.2d 98 (1959).
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discussion the court held simply that, “as to local governments
it (the Act) does not purport to waive any immunity.”7
But in neither Ginter nor its progeny does the court
offer a plausible rationale for excluding counties from the Act’s
waiver of immunity.
The courts do, however, establish a
criterion for determining which of the several immune entities
are excluded from waiver.
In Gnau v. Louisville & Jefferson
County Metropolitan Sewer District,8 the appellant’s suit against
the Sewer District in the Board of Claims was dismissed on the
ground that the Board had no jurisdiction.
The Court of Appeals9
affirmed the dismissal citing Fawbush v. Louisville & Jefferson
County Metropolitan Sewer District,10 which held that although
the Sewer District is an agency of the state, “the waiver of
immunity attaches only to those agencies which are under the
direction and control of the central State government and are
supported by monies which are disbursed by authority of the
Commissioner of Finance out of the State treasury.”11
Although I would find that Withers overrules the test
of waiver in Gnau, I am also of the opinion that a distinction
should be drawn between an “agency” and its relationship with the
Commonwealth and a “sub-division” and its relationship with the
Commonwealth.
By definition a sub-division is an integral part
7
Id. at 100.
8
Ky., 346 S.W.2d 754 (1961).
9
Now the Supreme Court.
10
Ky., 240 S.W.2d 622 (1951).
11
Gnau, 346 S.W.2d at 755.
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of a whole — as here, it is a necessary component to make the
state whole, while an agency is simply a delegated representative
of the state created to perform services.
Of the cases cited by the majority only Ginter and
Malone address the issue of the jurisdiction of the Board of
Claims to hear claims against counties.
All other cases cited
relate to the question of immunity and the waiver of immunity of
agencies in state government such as sewer districts, boards of
education and entertainment entities.
I do not find the same
precedential guidance for questions relating to counties as I
would for agencies.
Precedent clearly supports the proposition that
sovereign immunity, as enjoyed by the Commonwealth under Section
231, extends to and includes counties by virtue of their being
subdivisions of the Commonwealth.
The principle is emphatically and succinctly phrased in
Kenton County Public Parks Corp. v. Modlin:12
Since 1792 nothing could be clearer in
Kentucky law than the principle that counties
enjoy sovereign immunity from ordinary tort
liability, the same immunity as the
Commonwealth.
While our courts broadly define Section 231 as granting
sovereign immunity to the Commonwealth’s sub-divisions, cabinets,
departments, bureaus and agencies, they have consistently
interpreted the Board of Claims Act as waiving the immunity only
of those entities that meet the test set out by the Gnau court.
Counties, obviously, remain in a category unto themselves,
12
Ky. App., 901 S.W.2d 876, 879 (1995).
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enjoying sovereign immunity without inclusion by express terms in
any legislative act of waiver.
Yet, it seems totally
inconsistent to hold that Section 231 grants sovereign immunity
to the Commonwealth, and thereby to counties by virtue of their
being subdivisions of the Commonwealth, while on the other hand
declare that the waiver of immunity granted by the Act refers to
the Commonwealth, but not to its counties.
Since Malone we have variously held both, that Malone
is authority for finding waiver of immunity of counties,13 and,
that it is not14 (and the dicta of Clark v. June,15 which
discusses the ambiguity of the present status).
However, if we
look at the stated premise in Withers, that through time various
efforts to resolve persistent questions regarding sovereign
immunity we find those attempts often resulted only in greater
uncertainty.
Writing for the court, now Chief Justice Lambert,
set forth guidelines in Withers, by which courts can reach more
consistent results, holding specifically that claims against all
immune entities are within the jurisdiction of the Board of
Claims:
All claims against immune entities fall
squarely within the purview of the Board of
Claims Act where resides exclusive
jurisdiction for claims against the entity.
13
Whitney v. Jefferson Co. Fiscal Court (1997-CA-002654);
Dye v. Clark Co. Board of Education (1998-CA-000013); Bell Co.
Fiscal Court v. Thompson (1998-CA-001532)(all opinions designated
not to be published).
14
Williams v. Kentucky Dept. of Education (1999-CA-000914)
(designated not to be published).
15
Estate of Anthony Ray Clark v. June (1998-CA-002755)
(designated not to be published).
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The Board of Claims Act and sovereign
immunity are co-extensive. Berns, 801 S.W.2d
at 331, and Gnau v. Louisville & Jefferson
County Metropolitan Sewer District, Ky., 346
S.W.2d 754 (1961). It follows that a plea of
sovereign immunity is an admission of Board
of Claims jurisdiction.16
Since the enactment of the Board of Claims Act we have
invariably defied a sense of fairness by creating a distinction
between the Commonwealth and its counties in our application of
the Act.
It seems unambiguously stated in Withers that that part
of Gnau setting out the test of waiver under the Act is overruled
and waiver must now be applied to all sovereign entities whose
immunities are derived from Section 231.
I would affirm.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE,
RAYMOND BANKS:
Trevor A. Smith
Louisville, KY
Robert G. King
Stanton, KY
Joseph W. O’Reilly
Frankfort, Kentucky
BRIEF FOR APPELLEE, POWELL
COUNTY FISCAL COURT:
Wayne F. Collier
Lexington, KY
16
Withers, 939 S.W.2d at 346.
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