dissenting.
I respectfully dissent. The Court of Appeals decision applying sovereign immunity to Louisville and Jefferson County Metropolitan Sewer District (MSD) should be affirmed and that court’s decision denying sovereign immunity to the Board of Health should be reversed.
The majority opinion notes that all parties to this suit as well as the Court of Appeals “recognize that MSD and the Board of Health are public corporations” that are essentially the same as far as determining whether sovereign immunity applies. The Court of Appeals found that sovereign immunity protects one of the “public corporations,” MSD; but does not protect the other “public corporation,” the Board of Health. This Court had the duty of resolving this conflict.
The majority presents a lengthy explanation as to why sovereign immunity does not protect MSD nor the Board of Health. The critical aspect seems to be that these two entities are municipal corporations, thus not within the protected area of sovereign immunity.
The issue in this case is not whether the entities in issue are public corporations, that point is conceded. Rather, the issue is whether MSD and the Board of Health are quasi-municipal corporations, and thus protected by sovereign immunity.
It is correct that this Court retracted the doctrine of sovereign immunity as it applied to municipal corporations. Haney v. City of Lexington, Ky., 386 S.W.2d 738, 742 (1964), reh’g denied, (1965). In Haney we also noted, “[w]e wish to make it plain, however, that this opinion does not impose liability on the municipality in the exercise of legislative or judicial or quasi-legislative or quasi-judicial functions.”
This Court found that MSD is a quasi-municipal corporation with the duty of protecting and preserving public health. Fawbush v. Louisville and Jefferson Co. Metro. Sewer Dist., Ky., 240 S.W.2d 622, 624 (1951). “[T]he general rule has been that [quasi-municipal corporations] are not liable for torts. Thus for example, a metropolitan sewer district may be immune to tort liability as a political subdivision of the county, which is a political subdivision of the state.” 18 McQuillan, Municipal Corporations, § 53.05 (3d ed. & Supp.1984). See Louisville & Jefferson Co. Metro. Sewer Dist. v. Simpson, Ky., 730 S.W.2d 939 (1987) cert. denied 484 U.S. 964, 108 S.Ct. 453, 98 L.Ed.2d 393 (1987).
This Court found the Board of Health to be a municipal corporation and thus unable to claim governmental immunity in Stephenson v. Louisville & Jefferson Co. Bd. of Health, Ky., 389 S.W.2d 637, 638 (1965). Stephenson should be overruled. Haney, supra, which held that municipal corporations are no longer immune from liability as a general rule, was the basis of our opinion in Stephenson.
The Stephenson opinion stretched the Haney decision in holding that no municipal corporation can claim governmental immunity. The Stephenson opinion failed to note that immunity still exists for quasi-municipal corporations such as MSD and the Board of Health.
The majority cites several cases including Rash v. Louisville & Jefferson Co. Metro. Sewer Dist., 309 Ky. 442, 217 S.W.2d 232 (1949), for the proposition that MSD is a municipal corporation. The only case, however, that presents a true conflict is Stephenson which should be overruled. Neither Rash nor Haney speak to whether sovereign immunity would be applied to MSD or the Board of Health. These cases simply define “municipal corporation.” Since MSD and the Board of Health are quasi-municipal corporations, sovereign immunity protects these entities from liability.
I would overrule Stephenson and hold MSD and the Board of Health immune from liability.