Dunlap v. University of Kentucky Student Health Services Clinic, 84-SC-79-DG

• Citation: 716 S.W.2d 219
• Decision Date: 27 February 1986
• Docket Number: No. 84-SC-79-DG,84-SC-79-DG
• Court: United States State Supreme Court — District of Kentucky
• Parties: 34 Ed. Law Rep. 1244 Clarke DUNLAP, Movant, v. UNIVERSITY OF KENTUCKY STUDENT HEALTH SERVICES CLINIC, Respondent.

Page 219

716 S.W.2d 219

34 Ed. Law Rep. 1244

Clarke DUNLAP, Movant, v. UNIVERSITY OF KENTUCKY STUDENT HEALTH SERVICES CLINIC Respondent.

No. 84-SC-79-DG

Supreme Court of Kentucky.

Feb. 27, 1986.

As Modified on Denial of Rehearing Sept. 25, 1986.

Timothy N. Philpot, Anggelis & Philpot, Lexington, for movant.

John C. Darsie, Lexington, for respondent.

Richard M. Breen, Hargadon, Lenihan, Harbolt & Breen, Louisville, for amicus--Kentucky Academy of Trial Attorneys.

Robert F. Matthews, Greenbaum, Doll & McDonald, David L. Baker, University Counsel, Ben J. Talbott, Jr., Baird, Kirven, Westfall & Talbott, Louisville, for amicus--University of Louisville.

J. Stephen Kirby, Frankfort, for amicus--Kentucky School Bd. Assn.

R. Hughes Walker, Cabinet for Human Resources, Charles D. Wickliffe, Finance & Admin., Barbara Jones, Corrections Cabinet, Stephen Reeder, Karen A. Powell, Transp. Cabinet, Frankfort, for amicus--Cabinets--Human Resources, Transp., Corrections and Finance.

LEIBSON, Justice.

The issue in this case is whether the appellant's claim was barred by proper application of the doctrine of sovereign immunity. The trial court dismissed the claim on this ground. The Court of Appeals affirmed, holding that its prior decision in Frederick v. University of Kentucky Medical Center, Ky.App., 596 S.W.2d 30 (1979) was dispositive. In Frederick v. University of Kentucky Medical Center, the Court of Appeals held that, despite the statutory scheme set up in KRS 164.939-.944, styled "UNIVERSITY OF KENTUCKY MEDICAL CENTER MALPRACTICE INSURANCE," there has been no legislative waiver of sovereign immunity for claims against the Medical Center adequate "to comply with the requirements of section 231 of the Kentucky Constitution." 596 S.W.2d at 31.

We accepted discretionary review to consider whether the doctrine of sovereign immunity applies to this situation. We reverse, because we have decided that it does not.

The complaint alleges that Clarke Dunlap was a graduate student of the University of Kentucky who paid for and received a flu shot from the clinic at the Medical Center to protect against influenza. Dunlap charges negligence in administering the shot and failure to warn of possible adverse and harmful side effects. He claims that as a result of this negligent injection he contracted Guillain Barre Syndrome (GBS), causing serious and permanent injuries, including quadriparesis.

Section 231 of the Kentucky Constitution provides as follows:

"Section 231. Suits against the Commonwealth: --The General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth."

The language of Sec. 231 has been uniformly interpreted by this Court as permitting the General Assembly to waive sovereign immunity by appropriate legislation. One example is the limited waiver provided by the Board of Claims Act, KRS 44.070, et seq. See Motors Insurance Corporation v. Commonwealth, Ky., 336 S.W.2d 44 (1960). Another is the limited waiver as to the Board of Education when it elects to provide liability insurance for school busses provided in KRS 160.310. See Taylor v. Knox County Board of Education, 292 Ky. 767, 167 S.W.2d 700 (1942).

The Court of Appeals' decision in Frederick v. University of Kentucky Medical Center, supra, proceeded from the premise that it could not discern a legislative purpose to waive immunity from the statutory language. We cannot reconcile this conclusion with KRS 164.939, which states:

"Legislative purpose --It is the purpose of KRS 164.939 to 169.944 to promote the health and general welfare of the people of the Commonwealth by authorizing the University of Kentucky to establish from its own funds other than general tax revenues a basic coverage compensation fund to assure itself that health care malpractice claims or judgments against itself, or its agencies will be satisfied. Such purpose is hereby declared to be a public purpose for which public funds may be expended." (Emphasis added.)

From the words of this statute, legislative waiver is plain in its meaning and intent. The only question is whether the statutory language is so imprecise that it fails to accomplish its purpose.

The statutory scheme is that the Board of Trustees of the University "may, at its election, establish a basic coverage compensation fund for the benefit and protection from liability of itself and its agents." KRS 164.941(1). To do so the University "shall pay to the state treasurer the sum of ... $350,000.00." KRS 164.941(1). This sum shall be supplemented by annual contributions as laid out in the enabling legislation. The fund shall be kept by the state treasurer in "a separate account." KRS 164.941(2). "No portion of said fund shall ever lapse to the general fund and income earned from the investment of funds standing to the credit of said account shall accrue and be credited thereto." Id. There is also a provision for supplementing the basic coverage fund if at any time it should fail to have sufficient funds to pay all judgments.

After providing for the creation and maintenance of the fund, the statute states that the fund "shall be expended solely in payment of claims for liability arising in favor of any patient from treatment performed or furnished, or treatment that should have been performed or furnished by the University or its agents." KRS 164.941(3).

The statutory scheme is detailed and complete. The language of the statute expressly contradicts the appellee's position that the fund was intended to provide coverage of physicians and other employees but not to provide for claims directly against the University. The Act specifies in three or more places that it is intended to provide a fund for the University to pay claims against "itself" as well as its agents.

The decision of the Court of Appeals in Frederick is squarely in conflict with our decision Taylor v. Knox County Board of Education, supra. In Taylor, we stated:

"The Legislature may make school boards liable for their torts or the torts of their agents and employees, and we know of no reason why it may not taken (sic) a middle course and empower them to protect by liability insurance persons injured by the negligence of their bus drivers and to provide that the liability of the insurer shall be determined by the final judgment obtained by the injured person." 167 S.W.2d at 701-02.

"The act does not make the board liable for the torts of its agents and employees, but it does permit the board to be sued and a judgment to be obtained which, when final, shall measure the liability of the insurance carrier to the injured party for whose benefit the insurance policy was issued." (Emphasis added) 167 S.W.2d at 702.

The School Board insurance statute, KRS 160.310, did not expressly waive government immunity. Likewise, there is nothing in the Board of Claims Act, KRS 44.070 et seq., that states in so many words that the General Assembly intends by that Act to limited waiver of sovereign immunity.

Any differences between the statute in the Taylor case permitting a school board to purchase liability insurance and the statute in the present case, the "University of Kentucky Medical Center Malpractice Insurance" Act, KRS 164.939-.944, to establish a self-insurance fund are a distinction without a difference. Both statutes are permissive. Both statutes envision expenditure of public funds to establish a source for the payment of claims. Neither statute contains an express waiver of governmental immunity. Neither statute makes the Board liable for the torts of its agents or employees but both permit the Board to be sued and both permit payment from funds as limited by the statute if a judgment is obtained.

In a footnote to the Frederick case, the Court of Appeals alludes to claims made by the University's counsel at oral argument that such funds are used for payment of malpractice actions against the University of Kentucky Medical Center through the Board of Claims. The Board of Claims Act already provides the manner in which funds will be made available for the payment of claims, and needs no separate enabling legislation to provide funds for payment. See KRS 44.100. There is no reference in the "University of Medical Center Malpractice Insurance Act," KRS 164.939-164.944, to funding claims made through the Board of Claims. It would be an unnecessary statute.

The Frederick case cannot and does not overrule the Taylor case. We simply have two conflicting decisions on the same subject manner. Stare decisis leads us to follow the decision of the Supreme Court in Taylor, rather than that of the intermediate appellate court in Frederick. Frederick is overruled.

Respondent also cites Moores v. Fayette County, Ky., 418 S.W.2d 412 (1967) as supposedly overruling Taylor. Such is not the case. In Moores, no mention is made of Taylor, and for a very good reason: the fact situation is significantly different. Moores involves a claim against the county for negligent maintenance of the courthouse steps, resulting in personal injury to a claimant who fell on the steps. No statute authorized a fund for payment of such claims or the purchase of liability insurance from which such claims should be paid. No statute existed contemplating any waiver of sovereign immunity, partial or otherwise. It so happened that the county had bought liability insurance, as is often the case with governmental agencies, though none was required, perhaps against the possibility that the agency might be sued in some type of case in which the doctrine of sovereign immunity would not apply. This type of liability insurance, which expressly provides that it is not a fund to pay claims until "the insured (the county) shall become legally obligated to pay," is common practice for governmental agencies. It costs very little, since it is cheap to sell insurance that pays no benefits. Moores has nothing to do with our situation because here the...