Dissenting:
I respectfully dissent. I would affirm the Franklin Circuit Court in its determination that the appeal of KERS is interlocutory in nature. The jurisdictional issue raised would more properly be the subject of an appeal taken after the exhaustion of administrative remedies. The disputed jurisdiction of the Board of Claims (BOC) over a claim of negligent misrepresentation is a matter of law to be determined by a court — not by an administrative agency.
As noted by the majority opinion, KRS 44.073(2) grants exclusive jurisdiction to the BOC “over all negligence claims for the negligent performance of ministerial acts against the Commonwealth.... ” (Emphasis added.) It is wholly unclear as a matter of law what the import of “negligent performance” might be under these circumstances. Such a question of law is to be determined de novo by a court acting in an appellate capacity — not by an administrative agency essentially assuming the authority to adjudicate the extent of its own jurisdiction.
In fact, an inherent conflict of interest clearly exists if the KERS can effectively nullify a ruling of the BOC that might be adverse to its own interests or position.
Such a controversy over jurisdiction is properly resolved by a court acting in an appellate capacity. And the Franklin Circuit Court properly exercised its legitimate jurisdiction in refusing to grant injunctive relief in this clearly interlocutory matter.
Our resolution of this matter is premature and should await exhaustion of the administrative process and an appropriate appeal of a final order to the Franklin Circuit Court.
Accordingly, I would affirm the Franklin Circuit Court.