RENDERED: OCTOBER 21, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-1079-MR
LOUISVILLE/JEFFERSON COUNTY
METRO GOVERNMENT AND MARY
CARTER APPELLANTS
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 21-CI-003091
RHAMAN ABDULLAH, AS PARENT AND
NATURAL GUARDIAN OF
A.A.; MILANDO ABDULLAH, AS PARENT
AND NATURAL GUARDIAN OF A.A.;
FELICIA WHITE; NANCY WILLIAMS;
ANNIE BLACKSHEAR; HOMES FOR THE
NEEDY, LLC; ABDUL HAQS; AND HAQS, LLC APPELLEES
OPINION
REVERSING
AND REMANDING
** ** ** ** **
BEFORE: LAMBERT, MAZE, AND TAYLOR, JUDGES.
MAZE, JUDGE: Appellants Louisville/Jefferson County Metro Government
(“Metro”) and Marty Carter, in her official capacity, bring this interlocutory appeal
from the Jefferson Circuit Court’s opinion and order entered August 17, 2021,
denying its motion to dismiss on the grounds of sovereign immunity. As the Court
finds that the trial court properly found that Metro was entitled to sovereign
immunity but erred by denying its motion in order to allow Appellees to take
discovery on the issue of waiver, we reverse and remand for entry of an order
granting dismissal.
Appellee A.A., a minor child, was injured by lead poisoning as the
result of exposure to lead-based paint while he and his parents1 (collectively “the
Abdullahs”) were residents in rental property owned by Appellees Annie
Blackshear and Homes for the Needy, LLC. They were contacted by Metro
employees, including Appellant Marty Carter, and Appellees Felicia White and
Nancy Williams, in connection with the relocation services offered by Lead Safe
Louisville. The family was then placed in property owned by Appellees Abdul
Haq and HAQS, LLC located at 2639 Virginia Avenue. They later learned that
this location was also contaminated with lead. The family filed its complaint on
May 27, 2021, and Metro filed its motion to dismiss. The trial court held that
“Metro is entitled to sovereign immunity, absent a waiver.” However, the court
1
Appellees Rhaman and Milando Abdullah.
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then held that the Abdullahs were entitled to take discovery to determine if waiver
had occurred. The court denied Metro’s motion to dismiss, and this appeal
followed.
STANDARD OF REVIEW
CR2 12.02(f) provides that a motion to dismiss for failure to state a
claim should only be granted if it appears that the plaintiff would be unable to
prevail under any circumstances. Morgan v. Bird, 289 S.W.3d 222, 226 (Ky. App.
2009). Clearly, if the opposing party is entitled to immunity, the plaintiff could not
prevail.
This Court has jurisdiction over the interlocutory appeal of a denial of
a motion for relief based on sovereign immunity. Breathitt Cnty. Bd. Of Educ. v.
Prater, 292 S.W.3d 883, 887 (Ky. 2009). The issue of immunity is an issue of law,
not of fact and is reviewed on appeal de novo. Rowan Cnty. v. Sloas, 201 S.W.3d
469, 474 (Ky. 2006).
SOVEREIGN IMMUNITY
It is an established matter of law that Metro, as a consolidated city-
county government, is entitled to the same degree of immunity afforded to counties
of this state. Ruplinger v. Louisville/Jefferson Cnty. Metro Gov’t, 607 S.W.3d 583,
585 (Ky. 2020). Further, such immunity extends to its agencies and employees.
2
Kentucky Rules of Civil Procedure.
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KRS3 67C.101(2)(e). In determining whether Metro was entitled to dismissal
based on immunity for the actions of Lead Safe Louisville and its employees, the
trial court adopted the two-pronged test of Kentucky Center for the Arts
Corporation v. Berns, 801 S.W.2d 327 (Ky. 1990), as applied in Comair, Inc. v.
Lexington-Fayette Urban County Airport Corporation, 295 S.W.3d 91, 99 (Ky.
2009).
However, the Court in Comair cautioned that the Berns “test” was
“best left in that case[,]” calling it “overly simple, failing to allow for subtlety, and
too limiting.” Id. The Court urged a more functional inquiry focused on “the
sources of the entity in question and the nature of the function it carries out.” Id.
The Court concluded that, “the basic concept behind the two-prongs – whether the
entity in question is an agency (or alter ego) of a clearly immune entity (like the
state or a county) rather than one for purely local, proprietary functions – is still
useful.” Id.
Lead Safe Louisville is not an “agency” or “alter ego” in its own right.
It is a program administered by two Metro agencies, the Department of Public
Health and Wellness and the Office of Housing and Community Development. It
is operated by Metro employees and funded by Metro. KRS 65.2003(3)(d).
Unlike some agencies, Lead Safe Louisville has no authority to sue or be sued in
3
Kentucky Revised Statutes.
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its own name. Parking Authority of River City, Inc. v. Bridgefield Casualty
Insurance Company, 477 S.W.3d 598, 601 (Ky. App. 2015). In short, Lead Safe
Louisville is a subordinate entity of two agencies of an immune entity as described
in Comair. 295 S.W.3d at 99.
Lead Safe Louisville was engaged in the performance of a
governmental function the furtherance of public health, particularly in the low-
income community. In Beall v. Oakwood Community Center, No. 2007-CA-
000268-MR, 2008 WL 399628, at *1 (Ky. App. Feb. 15, 2008), this Court
appeared to find by implication that public health is a governmental function.
Clearly, based upon the foregoing authority, the trial court properly found that
Metro and its employees are entitled to the benefit of sovereign immunity.
WAIVER
However, waiver is a question of law, not fact. Therefore, the trial
court erred in holding that it is “inherently fact intensive absent a statute or
ordinance that directly settles the issue.” No statutes were cited by the Abdullahs
which would authorize suit. Where there is no statute granting leave to sue, we
must presume that the General Assembly has not done so. Reyes v. Hardin
County, 55 S.W.3d 337, 342 (Ky. 2001).
Indeed, the court’s rationale for allowing additional discovery was “to
determine whether Metro’s insurance policies, contracts, or policies and
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procedures could contain a possible implied waiver.” However, as a matter of law,
sovereign immunity cannot be waived by an ordinance. Schell v. Young, 640
S.W.3d 24 (Ky. App. 2021). It cannot be waived by the purchase of an insurance
policy or a provision for self-insurance. Withers v. University of Kentucky, 939
S.W.2d 340, 345 (Ky. 1997). Waiver must be based upon “express language” or
“overwhelming implication.” Id. at 346.
Summary adjudications of claims of sovereign immunity relieve
government defendants from the burdens of defending the action. Harlow v.
Fitzgerald, 457 U.S. 800, 817-818, 102 S. Ct. 2727, 2737-2738, 73 L. Ed. 2d 396
(1982). These include the burdens of discovery, Lexington-Fayette Urban County
Government v. Smolcic, 142 S.W.3d 128, 135 (Ky. 2004). The course of action
proposed by the trial court would not only prove futile but would serve to defeat
this worthy purpose.
Accordingly, we reverse and remand to the Jefferson Circuit Court
with instructions to dismiss Metro and Marty Carter, in her official capacity, from
this action.
LAMBERT, JUDGE, CONCURS.
TAYLOR, JUDGE, CONCURS IN RESULT ONLY.
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BRIEFS FOR APPELLANT BRIEF FOR APPELLEES:
LOUISVILLE/JEFFERSON
COUNTY METRO Kevin Weis
GOVERNMENT: Louisville, Kentucky
Michael J. O’Connell
Jefferson County Attorney
Roy C. Denny
Assistant Jefferson County Attorney
Louisville, Kentucky
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