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Clemons v. Metcalfe County Board of Education2/25/2005
REVERSING
Appellant, Kansas Clemons (Clemons), by and through her next friend Patricia Clemons Scruggs, appeals the Metcalfe Circuit Court's dismissal of her personal injury claim. We reverse the circuit court's determination.
On January 10, 2003, Clemons, aged 9, was a passenger on a school bus. While on the bus she was attacked and injured by another student. The bus driver did not prevent or stop the attack. Clemons does not know the identity of the attacking student or of the bus driver. Clemons filed the underlying action against Appellee Metcalfe County Board of Education, an unnamed school bus driver, the child who attacked Clemons, and the parents of the child who attacked Clemons. Clemons asserted that the Board of Education failed to properly train and supervise its school bus driver, and that this failure was the proximate cause of Clemons' injuries. Clemons asserts that the bus driver should have prevented or stopped the attack.
The Board of Education filed a motion to dismiss the suit on February 18, 2003, claming governmental immunity. On March 28, 2003, the circuit court granted the motion to dismiss. In the Order and Opinion dismissing the action, the court noted that Clemons had failed to identify the bus driver, the student, or the student's parents such that action could be taken against them individually. The court found that the applicable statutes prohibit a finding of liability on the part of the Board of Education. On April 4, 2003, Clemons filed a motion to alter, amend or vacate the order of dismissal. Clemons argues that KRS 160.310, which permits Boards of Education to set aside funds to insure school buses and bus drivers, constitutes a waiver of immunity for injury resulting from negligence of the bus driver. Clemons asserts that the action may be filed and prosecuted, and recovery may be had solely against the liability insurance carrier. Both sides agree that the Board of Education is entitled to governmental immunity. Yanero v. Davis, 65 S.W.3d 510, 527 (Ky. 2001). This issue is whether such immunity is waived by purchase of liability insurance to the extent of the insurance coverage provided.
The Board of Education asserts that when the legislature enacted KRS 44.072 and 44.073, the legislature intended that governmental immunity be waived "only where stated by the most express language or by such overwhelming implications from the text as to leave no room for any other reasonable construction." Withers v. University of Kentucky, 939 S.W.2d 340, 345 (Ky. 1997). The Board argues that even though liability insurance is purchased to protect against the negligence of bus drivers, that purchase does not act to waive immunity.
Clemons claims that immunity is waived to the extent of the insurance coverage purchased. In Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001), the Kentucky Supreme Court held that KRS 67.186, which permits county hospitals to purchase liability insurance, waived immunity to the extent of the coverage of such insurance. The statutorily authorized purchase of insurance created a qualified waiver of immunity. 55 S.W.3d at 340. Subsection (3) of KRS 67.186 holds, in pertinent part:
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 67.186(3). This statute refers to the sovereign and governmental immunity of counties and addresses the purchase of insurance. This statute was enacted with
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