dissenting.
Respectfully, I dissent.
It is undisputed that Section 231 of the Constitution of this Commonwealth provides for sovereign immunity, as follows:
The General Assembly may, by law, direct in what manner and in what court suits may be brought against the Commonwealth.
This Court has also consistently held that school districts and boards of education are creatures of the General Assembly and are its designated agencies to perform the constitutional duty of providing “for an efficient system of common schools throughout the state.” See Calvert Investments, Inc. v. Louisville and Jefferson Metropolitan Sewer District, Ky., 805 S.W.2d 133 (1991); KENTUCKY Constitution sec. 186; and Rose v. The Council for Better Education, Inc., Ky., 790 S.W.2d 186 (1989). As such, the local school board “is a state agency shielded by state sovereign immunity ...” Clevinger v. Board of Education of Pike County, Ky., 789 S.W.2d 5 (1990).
It seems equally clear that the General Assembly can, by statute, waive the sovereign immunity previously reposed. We said in Kentucky Center for the Arts v. Berns, Ky., 801 S.W.2d 327, 329 (1991):
Where sovereign immunity exists, the General Assembly has the power of statutory waiver which it exercises through the Board of Claims Act. KRS 44.070 et seq. (emphasis added)
In granting Summary Judgment herein to the Board, the trial judge, Hon. William T. Cain, held that the Board is an agency of the state, immune from all negligence claims, and subject to the primary and exclusive jurisdiction of the Board of Claims under KRS 44.073(2). The Court of Appeals reversed the trial court decision. A majority of this Court agrees with the Court of Appeals’ reasoning on the issue of sovereign immunity. I find the majority’s analysis incorrect.
The majority opinion contends that the Board of Claims Act “is limited to subdivisions of the central state government. There is no statement that the act applies to local governments or local boards of education.” KRS 44.073(2) of the Board of Claims Act provides:
The Board of Claims shall have primary and exclusive jurisdiction over all negligence claims for the negligent performance of ministerial acts against the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any officers, agents, or employees thereof while acting within the scope of their employment by the Commonwealth, or any of its cabinets, departments, bureaus, or agencies.
I do not agree with the analysis given this section by the majority. This statute uses the words “officers” and “agents” of any of the Commonwealth’s “agencies,” and, as stat*459ed above, we have consistently held that a county board of education is such an “arm of state government” enjoying sovereign immunity, unlike “local governments.” Wallace v. Laurel County Board of Education, 287 Ky. 454, 153 S.W.2d 915 (1941), held that the statute creating county boards of education and granting them power to “sue and be sued” does not make them liable for torts committed by officers or agents in the performance of public duties. While the majority states that Wallace can be distinguished, they fail to do so.
The majority then holds that KRS 160.160(1) and KRS 160.310 constitute an implied waiver by the General Assembly of the defense of sovereign immunity applicable to a board of education, to the extent of available insurance coverage. The applicable portion of each of these statutes is as follows:
160.160(1). Each board of education ... may sue and be sued; make contracts; expend funds necessary for liability insurance premiums and for the defense of any civil action brought against an individual board member in his official or individual capacity, or both, on account of an act made in the scope and course of his performance of legal duties as a board member. ...
160.310. Board to provide insurance for school buses.
Each board of education may set aside funds to provide for liability and indemnity insurance against the negligence of the drivers or operators of school buses, other motor vehicles, and mobile equipment owned or operated by the board....
In so holding, the majority relies upon this Court’s decision in Green River District Health Department v. Wigginton, Ky., 764 S.W.2d 475 (1989).
The majority opinion summarily dismisses the 1986 Amendments to the Board of Claims Act. The language chosen by the General Assembly to amend the applicable section of Chapter 44 of the statutes was, and still is, quite explicit and unambiguous. KRS 44.072 reads:
Legislative intent as to sovereign immunity in negligence claims. — 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 employees 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 employees 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 statutes, against the Commonwealth, its cabinets, departments, bureaus or agencies or any of its officers, agents or employees while acting within the scope of their employment by the Commonwealth, its cabinets, departments, bureaus or agencies.
Finally, KRS 44.073(14) was added to remove any doubt as to the effect the legislature intended to be given to the optional insurance purchase sections of KRS 160.160(1) and 160.310:
The filing of an action in court or any other forum or the purchase of liability insurance or the establishment of a fund for self-insurance by the Commonwealth, its cabinets, departments, bureaus or agencies or its agents, officers, or employees thereof for a government related purpose or duty shall not be construed as a waiver of sovereign immunity or any other immunity or privilege thereby held. Except as specifically set forth by statute, no counterclaim, set-off, recoupment, cross-claim, or other form of avoidance may be asserted by any person when suit is brought against said person by the Commonwealth *460or any of its cabinets, departments, bureaus or agencies thereof.
I believe that the majority misinterprets KRS 160.310 in holding that this section permits suits against boards of education for their vicarious liability resulting from negligence of school bus drivers or operators. Rather, the sections permit such boards to purchase insurance covering the drivers or operators, just as KRS 160.160(1) permits the boards to purchase insurance covering an individual board member. None of these individuals enjoys sovereign immunity like a board of education does, and accordingly, none can be pursued in the Board of Claims. In the case before us, it is uncontradicted that the plaintiff-appellees did not sue the bus driver in the complaint filed in the Rock-castle Circuit Court; the Board of Education was the sole defendant.
Accordingly, I would reverse the decision of the Court of Appeals and affirm and reinstate the judgment of the Rockcastle Circuit Court, dismissing the complaint on grounds of sovereign immunity.
BAKER, J., joins this opinion.