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Casey v. Grayson County Board of Education2/14/2003
property of any patient, resulting from the negligence of the hospital, its agents or employees.
(3) This section shall not be construed as waiving the immunity of the county or county operated hospital from suit only to the extent of the policy limits, and no judgment may be enforced or collected against the county, fiscal court, the members thereof, or such hospital, but shall only measure the liability of the insurance carrier.
KRS 160.310 permits the purchase of insurance: 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. If the transportation of pupils is let out under contract, the contract shall require the contractor to carry indemnity or liability insurance against negligence in such amount as the board designates.
In either case, the indemnity bond or insurance policy shall be issued by some surety or insurance company authorized to transact business in this state, and shall bind the company to pay any final judgment, not to exceed the limits of the policy, rendered against the insured for loss or damage to property of any school child or death or injury of any school child or other person. (emphasis added.)
Both statutes specifically qualify the waiver of immunity to the extent of insurance but preclude an enforceable judgment against the immune entity. Although the lawsuit must be brought against the immune entity, judgment can be rendered only to the extent of insurance coverage and binds solely the insurance company.
This is the same qualified waiver of immunity found by the Reyes Court. Reyes looked at KRS 67.186 and found no express authorization for a suit against an immune entity but found an overwhelming implication that suit may be filed based on the qualified waiver of immunity. The Reyes Court looked at KRS 160.310 and stated similarly"that KRS 160.310 does not expressly authorize a suit against a board of education." Reyes, 55 S.W.3d at 341. (emphasis added.) Since the Court was only deciding if KRS 67.186(3) authorized a suit, it did not need to go further and find the overwhelming implication of KRS 160.310 was also a qualified waiver of immunity. That decision was left for another day. Using the same rationale in Reyes in analyzing KRS 67.186 and KRS 160.310, we opine that the language of KRS 160.310 contains the same overwhelming implication of the qualified waiver of immunity found in KRS 67.186(3), that suit may be filed against the Board of Education and if a judgment is obtained, it would be solely enforceable against the Board of Education's liability insurance carrier, not to exceed the limits of the policy.
For the foregoing reasons, the summary judgment of the Grayson Circuit Court is reversed and the matter remanded for proceedings consistent with this opinion.
ALL CONCUR.
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