dissenting.
The beginning of the majority opinion describes the basic proposition for the opinion by stating that sovereign immunity does not apply to this situation. With this statement I agree. Then the last paragraph of the opinion states that the statute here is a partial waiver of governmental immunity. With this I disagree. Somewhere between the beginning and the end of the opinion, the majority lost the way.
The fundamental flaw in the majority opinion is that it purports to rely on Taylor and then persists in treating the statute as a “limited waiver of sovereign immunity.”
Taylor is an unusual case. If any inference can be drawn from Taylor, it is that the court was keenly aware of immunity and took pains to hold that it did not apply.
The quote from Taylor in the majority opinion states that the legislature could make school boards liable but that the statute took a middle course by providing a vehicle to protect injured persons by a liability policy. Then, the quote: “The act does not make the board liable....” Three times in Taylor it is emphasized that under the act the board is not liable and that “in no event can the judgment be collected out of school funds.” All of this is language that plainly means that immunity is not involved at all. The court simply held that the board was a nominal party through *223which the proceeds of the liability policy could be reached.
With this plain holding Frederick is not in conflict with Taylor and should not be overruled. Frederick simply held that the statute here did not waive sovereign immunity.
Section 231 of the Kentucky Constitution provides that the General Assembly may, by law, direct in what manner and in what courts suits may be brought against the Commonwealth.
The statute in Taylor and the statute here do not direct in what manner and in what courts suits may be brought. Hence, it is clear the legislature had no intention of waiving immunity. The majority opinion states that from the words of the statute a limited waiver is plain. What the opinion really says is that there is an implied waiver. The Constitution sets out the method of waiver which does not appear in either of the statutes. The concept of an implied waiver is in conflict with Section 231.
This leads into the strange statement that the Board of Claims Act is an implied waiver. This act specifically follows the Constitution by setting out the amount and type of claims and a forum where the claims may be heard. This is an express waiver to the extent provided, and I submit that there is no precedent in our jurisprudence for a limited or implied waiver.
The majority opinion should follow the plain holding of Taylor or acknowledge that it does not.
Accordingly, I dissent.
VANCE, J., joins in this dissent.