University of Louisville v. O'BANNON

VANCE, Justice,

dissenting:

The question is whether K.R.S. 44.073(8), (11), (12) effective July 15, 1986, provide immunity to the Commonwealth and its officers and agents from suits filed against them prior to the effective date of the act.

This litigation was commenced by Archie Hall and his wife, Elina Hall, against Hu-mana of Virginia, Inc.; Humana, Inc.; University of Louisville Hospital, Inc.; University of Louisville, and John R. Johnson, M.D. seeking recovery for negligent medical treatment. The University of Louisville and Dr. Johnson pleaded sovereign immunity and moved to dismiss the action as to them. The motion was denied, and original proceedings were instituted in the Court of Appeals seeking to prohibit the trial of the action. The Court of Appeals denied the petition, and an appeal has been perfected in this court.

In Dunlap v. University of Kentucky Student Health Services Clinic, Ky., 716 S.W.2d 219 (1986), we held that K.R.S. 164.-939-944 constituted a waiver of governmental immunity for the University of Kentucky to the extent of the statutorily provided insurance fund. A similar statutory insurance fund exists for the University of Louisville, and Dunlap would extend the same waiver of immunity to it.

Subsequent to the decision of Dunlap, the General Assembly enacted K.R.S. 44.-072 and 44.073(8), (11), (12). They provide as follows:

K.R.S. 44.072:
“It is the intention of the general assembly to provide the means to enable a person negligently injured by the Commonwealth, any of its cabinets, departments, bureaus or agencies, or any of its officers, agents or employes while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies to be able to assert their just claims as herein provided. The Commonwealth thereby waives the sovereign immunity defense only in the limited situations as herein set forth. It is further the intention of the general assembly to otherwise expressly preserve the sovereign immunity of the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employes while acting in the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies in all other situations except where sovereign immunity is specifically and expressly waived as set forth by statute. The board of claims shall have exclusive jurisdiction to hear claims for damages, except as otherwise specifically set forth by statute, against the Commonwealth, its cabinets, departments, bureaus, agencies or any of its officers, agents or employes while acting within the scope of their employment by the Commonwealth, its cabinets, departments, bureaus or agencies.”
K.R.S. 44.073 subsections:
“(8) No action for negligence may be brought in any court or forum other than the board of claims against the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employes while acting within the scope of their employment by the Commonwealth, or any of its cabinets, departments, bureaus or agencies.”
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“(11) Except as otherwise provided by this chapter, nothing contained herein shall be construed to be a waiver of sovereign immunity or any other immunity or privilege maintained by the Commonwealth, its cabinets, departments, *219bureaus and agencies and its officers, agents and employes.
“(12) Except as otherwise specifically set forth by statute and in reference to subsection (11) of this section, no action for damages may be maintained in any court or forum against the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employes while acting within their official capacity and scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies.”

In Kestler v. Transit Authority of Northern Kentucky, Ky., 758 S.W.2d 38 (1988), we held that K.R.S. 44.072 did not apply retroactively so as to prohibit suits against the Commonwealth instituted prior to its enactment in situations similar to Dunlap.

The opinion in Kestler did not consider the applicability of K.R.S. 44.073(8), (11), (12) as to the question of immunity of the Commonwealth from suit.

In this case the appellants contend that K.R.S. 44.073(8), (11), (12) prohibit both the bringing and the maintaining of a suit against the Commonwealth and its officers. There is a distinct difference between the bringing of an action and the maintenance of an action. Bringing an action is the commencement of an action. That is done by filing a complaint and the issuance of summonses. CR 3. Maintenance of an action refers to the ongoing procedures after the action is brought.

“To maintain a suit is to uphold, continue on foot and keep from collapse a suit already begun.”

Smallwood v. Gallardo, 275 U.S. 56, 48 S.Ct. 23, 72 L.Ed. 152 (1927).

Whatever waiver of immunity was given by K.R.S. 164.939-944 it was clearly and expressly withdrawn by K.R.S. 44.073(11) and (12), even to the extent of prohibiting, after the effective date of the act, the further maintenance of an action commenced before the effective date of the act. The prohibition against maintenance of the action is not retroactive application of the act; it is prospective only and prohibits only the future continuation of the action.

The majority opinion holds that Dr. Johnson, an employee of the Commonwealth, is not entitled to immunity under the statute because governmental immunity of an agency of government cannot be extended constitutionally to employees of the agency. I agree that this attempted statutory extention of immunity to an employee under the circumstances of this case would not pass constitutional muster if the appel-lees had raised the issue of the constitutionality of the statute. This issue was not raised, however.

Ordinarily, courts do not declare statutes unconstitutional if there is another basis for disposition of the case. It is surprising to me that this court would declare the statute unconstitutional insofar as it extends immunity to state employees when that issue was not even raised, nor was it decided by the trial court.

The majority opinion states that if the legislature had intended to prevent the continued progress of lawsuits underway, Section 8 of the statute could have said: “No action for negligence could be brought or maintained.”

This is precisely what the statute says. Section 8 states that no action can be brought, and Section 12 states that no action can be maintained.

I would hold that K.R.S. 44.073 prevents the continued maintenance of this action against the University. Because the statute specifically prohibits the continuation of the action against an employee of the Commonwealth, such as Dr. Johnson, and because the constitutionality of the statute has not been placed in issue, I would also dismiss the action as to Dr. Johnson.

GANT, J., joins in this dissent.