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.
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 *440counties. 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 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 Appeals 9 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 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 addi-ess 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.
*441While our courts broadly define Section 281 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, enjoying sovereign immunity without inclusion by express terms in any legislative act of waiver. Yet, it seems totally inconsistent to hold that Section 281 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. 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.
. Ky., 939 S.W.2d 340 (1997).
. Kentucky Revised Statutes (KRS) 44.070.
. Ky., 327 S.W.2d 98 (1959).
. Id. at 100.
. Ky., 346 S.W.2d 754 (1961).
. Now the Supreme Court.
. Ky., 240 S.W.2d 622 (1951).
. Gnau, 346 S.W.2d at 755.
. Ky.App., 901 S.W.2d 876, 879 (1995).
. 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).
. Williams v. Kentucky Dept. of Education (1999-CA-000914) (designated not to be published).
. Estate of Anthony Ray Clark v. June (1998-CA-002755) (designated not to be published).
. Withers, 939 S.W.2d at 346.