Nelson County Bd. of Educ. v. Forte

• Decision Date: 21 April 2011
• Docket Number: 2010–SC–000149–DG.,Nos. 2009–SC–000715–DG,s. 2009–SC–000715–DG
• Parties: NELSON COUNTY BOARD OF EDUCATION, Appellant,v.Gene A. FORTE, Individually; Gene A. Forte, as Administrator of the Estate of Carole Forte; and Kentucky Board of Claims, Appellees.Gene A. Forte, Appellant,v.Nelson County School District, Appellee.
• Court: United States State Supreme Court — District of Kentucky

337 S.W.3d 617

267 Ed. Law Rep. 387

NELSON COUNTY BOARD OF EDUCATION, Appellant,

v.Gene A. FORTE, Individually; Gene A. Forte, as Administrator of the Estate of Carole Forte; and Kentucky Board of Claims, Appellees.Gene A. Forte, Appellant,

v.Nelson County School District, Appellee.

Nos. 2009–SC–000715–DG

2010–SC–000149–DG.

Supreme Court of Kentucky.

April 21, 2011.

OPINION TEXT STARTS HEREWest CodenotesRecognized as UnconstitutionalKRS 44.073(8) Charles Harding Cassis, Aaron John Silletto, Goldberg & Simpson, LLC, Prospect, KY, Counsel for Appellant/Appellee, Nelson County Board of Education; and Nelson County School District.Larry D. Raikes, Fulton, Hubbard & Hubbard, Bardstown, KY, Counsel for Appellant/Appellees, Gene A. Forte, Individually; Gene A. Forte, as Administrator of the Estate of Carole Forte.George Mitchell Mattingly, Legal Counsel, Board of Claims, Frankfort, KY, Counsel for Appellee, Kentucky Board of Claims.Opinion of the Court by Justice NOBLE.

These two appeals arise out of an accident in Nelson County that took the life of a school teacher on school grounds. The teacher's husband, Gene A. Forte, first filed a tort claim in the Nelson Circuit Court against the Nelson County Board of Education. While that action was pending, he started a claim at the Board of Claims. Upon the conclusion of both actions, appeals were taken. This Court granted discretionary review of both actions and consolidated them.

The first case before this Court, No. 2009–SC–000715–DG, is the appeal of the Board of Claims action. The Board dismissed the claim brought by Gene A. Forte, Appellee, against the Nelson County Board of Education, Appellant, as barred by the statute of limitations. Mr. Forte sought review of that order in the Nelson Circuit Court, arguing that the Board of Claims had acted outside its jurisdiction in dismissing his claim with prejudice. The Nelson Circuit Court held that the action was properly before the Board of Claims because of the savings statute, KRS 413.270, and remanded for appropriate action. The Court of Appeals agreed with the Nelson Circuit Court. This Court granted discretionary review, partly to decide the statute of limitations question but also to settle the question of primacy of jurisdiction between a circuit court and the Board of Claims when a governmental agency is the named party. This Court concludes that the Board of Claims action was premature, but not barred by the statute of limitations, and therefore reverses the Court of Appeals on its ultimate conclusion, but agrees with much of its legal reasoning, and orders that Mr. Forte be allowed to refile his action in the future.

The other case, No. 2010–SC–000149–DG, is the direct appeal of the underlying tort action that began the sequence of events raised in the previous case. The trial court granted summary judgment to the Nelson County Board of Education on the question of governmental immunity. The Court of Appeals dismissed the appeal for Mr. Forte's failure to join a necessary party, as he had named the Nelson County School District rather than the Nelson County School Board.

Though this Court has consolidated the actions, since they share a common source, that they proceeded through different procedural tracks (an administrative action versus civil action) makes addressing them simultaneously a difficult proposition. For that reason, the two cases are addressed separately in turn below.

I. The Board of Claims Action: Case No.2009–SC–000715–DG

A. Background

This action makes its way to the Court through a somewhat circuitous path. Tragically, Carole Forte, who taught elementary school in the Nelson County Public School System was killed as she was leaving the school grounds when an unsecured pole gate was blown by the wind into her car and struck her in the head. Her husband, Gene Forte, was appointed to act as administrator of her estate, and he filed a wrongful death tort action in Nelson Circuit Court in 2007, alleging negligence on the part of the Nelson County Board of Education in performing its responsibilities to see that the gate operated properly.

Being aware of the Board of Education's defense of governmental immunity, Forte then filed a “protective” claim in the Board of Claims raising the same issues brought in the tort action in Nelson Circuit Court. At the same time, he filed a motion asking the Board of Claims to hold the action in abeyance until the circuit court could rule on the immunity issue. The Board of Education responded by asserting that the Board of Claims had exclusive jurisdiction and that the action was time-barred, and asking for dismissal with prejudice. On August 1, 2008, the Board of Claims denied Appellee's motion, and granted the Board of Education's motion to dismiss with prejudice based on the statute of limitations, KRS 44.110(1).

Forte then filed a new action in Nelson Circuit Court for review of the Board of Claims order, claiming that the Board did not have personal or subject matter jurisdiction when it entered its order, and that the order should be set aside. Before a response was filed, Forte filed a supplemental memorandum which specifically raised the “saving statute,” KRS 413.270. The Board of Education responded, making essentially the same arguments it had made to the Board of Claims. On October 15, 2008, the Nelson Circuit Court entered an opinion vacating the Board of Claims order based on the saving statute, and remanding to the Board of Claims for a decision on the motion to hold in abeyance. The next day, the Board of Education appealed to the Court of Appeals, which affirmed the trial court.

Interestingly, on August 7, 2009, the Nelson Circuit Court granted summary judgment to the Board of Education on the basis of governmental immunity.

B. Analysis

This case, then, appears to present the question whether it is proper to dismiss as untimely an action filed at the Board of Claims outside the statute of limitations period while a timely filed civil action concerning the same cause of action is still pending at the circuit court. Specifically, the case raises the question whether the savings statute, KRS 413.270, works to toll the statute of limitations and therefore makes the action before the Board timely.

This question, however, results from incorrect suppositions that the Board is the proper forum to decide questions of immunity in the first instance, and that actions may be filed simultaneously at the Board and circuit court. If the Board was not yet the proper forum, that is, if it did not actually have jurisdiction over the claim at that time, then its decision about the statute of limitations was premature, since it instead should have dismissed the claim for lack of jurisdiction. And if the circuit court properly had jurisdiction to decide the question of immunity, then Forte's action at the Board was also premature, which means he may still be able to take advantage of the savings statute.

Whether Forte's action at the Board was barred by the statute of limitations, then, actually depends on whether the Board has the jurisdiction to hear and decide a claim before the question of a state actor's immunity has been decided by a circuit court.

Although this Court has previously addressed this question in the oft-quoted case of Yanero v. Davis, 65 S.W.3d 510 (Ky.2002), there apparently remains some confusion over where an action must be commenced when a governmental entity is a named defendant. Unlike this case, the governmental entity is often one among many defendants named in an action. Because the Board of Claims Act clearly states that the Board has primary and exclusive jurisdiction over actions brought against the state and its various agencies, see KRS 44.073(2)–(3), and bars the filing of any action against the state in any other court or forum until the Board determines that it has no jurisdiction, see KRS 44.073(5), an easy assumption can be made that any governmental entity can only be claimed against in the Board of Claims. The statute even goes so far as to state that no action against the state or its agencies may be brought in any court or forum except the Board, KRS 44.073(8).

Yet, as Justice Cooper pointed out in Yanero, the exclusive and primary jurisdiction the legislature granted the Board of Claims over negligence actions may extend only to cases where the defendant has immunity. Yanero, 65 S.W.3d at 525. This is because the Act does not create immunity; it can (and does) only waive pre-existing immunity. Id. Thus, Yanero held that any attempt to deprive the circuit courts of this Commonwealth of the power to decide the initial question of an entity's immunity, which was treated as a jurisdictional bar, was necessarily unconstitutional. Id. In that case, the question of immunity turned on whether functions performed by the state agency were governmental or proprietary. If the agency was engaging in governmental functions, then it enjoyed immunity and a claim could be brought at the Board. If the agency is engaging in proprietary functions, it does not enjoy immunity and a claim could proceed in the circuit court.

Thus, in the first instance, there is a question as to whether an agency is properly before the Board of Claims.

As to public officers and employees, if the acts complained of are performed by the official or employee in the exercise of his discretionary governmental functions, then he enjoys official immunity if sued in his official capacity. Id. If sued individually, and he is acting in a discretionary manner, in good faith, and within the scope of his employment, then he enjoys qualified official immunity. In both instances, such claims can only be prosecuted to completion in the Board of Claims. Although no officials or public employees were named in the tort action or the Board of Claims action in this case, they often are part of such suits, and when they are named, present a second question that must be answered before the ...