Derry v. Roadway Express, Inc., 1671.
| Decision Date | 21 December 1965 |
| Docket Number | No. 1671.,1671. |
| Citation | 248 F. Supp. 843 |
| Court | U.S. District Court — Eastern District of Kentucky |
| Parties | W. B. DERRY, Executor of the Estate of Frances P. Derry, Deceased, Plaintiff, v. ROADWAY EXPRESS, INC., Daniel Holmes, and Commonwealth of Kentucky, ex rel. Department of Highways, Defendants. |
James G. Sheehan, Jr., Danville, Ky., Robert M. Spragens, Lebanon, Ky., Stoll, Keenon & Park, by Gladney Harville, Lexington, Ky., for plaintiff.
Robert H. Measle, Lexington, Ky., William O. Gilbreath, Lexington, Ky., for Dept. of Highways, Commonwealth of Kentucky, for defendants.
W. B. Derry, a citizen and resident of Kentucky and executor of the deceased Frances P. Derry, filed this wrongful death action arising out of an automobile accident in the Circuit Court, Boyle County, Kentucky. The defendant Department of Highways filed a motion to dismiss the action against it asserting that the Boyle Circuit Court lacks jurisdiction to hear the claim against it since K.R.S. § 44.070 places exclusive jurisdiction over such tort claims in an administrative Board of Claims. Two days later, the defendants Roadway Express, Inc., a corporation chartered in the state of Ohio and with its principal place of business in Ohio, and Daniel Holmes, a citizen and resident of Ohio, filed a timely petition to remove the action to this court pursuant to 28 U.S.C. § 1441. The Boyle Circuit Court had not acted upon the defendant Department of Highways' motion to dismiss when the petition to remove was filed.
With the enactment of the Board of Claims Act, K.R.S. §§ 44.070-44.160, Kentucky partially waived its sovereign immunity and allowed parties to initiate claims alleging negligence on the part of the Commonwealth or any of its departments or agencies or any of its officers or employees while acting within the scope of their employment. The act establishes an administrative Board of Claims to hear proof, investigate and to award compensatory damages in amounts up to $10,000, but it vests exclusive jurisdiction over these claims in this Board, K.R.S. § 44.070(5), with a right of appeal to the state circuit courts from its judgment, K.R.S. § 44.140. The defendant Department of Highways is such a state department as was contemplated in the Act. See generally, Oberst, "The Board of Claims Act of 1950," 39 Ky.L.J. 35 (1950). Thus the Boyle Circuit Court did not have jurisdiction to hear the plaintiff's claim against this defendant.
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