Board of Claims of Kentucky v. Banks, No. 1999-CA-001001-MR.

• Decision Date: 20 October 2000
• Docket Number: No. 1999-CA-001001-MR.
• Citation: 31 S.W.3d 436
• Parties: BOARD OF CLAIMS OF KENTUCKY, Appellant, v. Raymond BANKS and Powell County Fiscal Court, Appellees.
• Court: Kentucky Court of Appeals

31 S.W.3d 436

BOARD OF CLAIMS OF KENTUCKY, Appellant, v. Raymond BANKS and Powell County Fiscal Court, Appellees.

No. 1999-CA-001001-MR.

Court of Appeals of Kentucky.

October 20, 2000.

Trevor A. Smith, Louisville, Joseph W. O'Reilly, Frankfort, KY, for Appellant.

Robert G. King, Stanton, KY, brief for Appellee, Raymond Banks.

Wayne F. Collier, Lexington, KY, brief for Appellee, Powell County Fiscal Court.

Before BUCKINGHAM, EMBERTON, and SCHRODER, Judges.

OPINION

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 "Nile 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. It argues that counties have sovereign immunity and that the statutes relative to the Board of Claims, KRS² 44.070-160, (10 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.

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 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." Id. at 100 (emphasis added). 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 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 n University of Kentucky, Ky., 939 S.W.2d 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...