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Clemons v. Metcalfe County Board of Education2/25/2005
recognition of the enforcement of such immunity, and provides a means of redress for those injured by an insured entity.
Similarly, KRS 160.310 permits Boards of Education to purchase liability insurance for school buses and bus drivers. KRS 160.310 was enacted prior to the strict immunity protection provided to counties pursuant to KRS 44.072 and 44.073. KRS 160.310 does not contain the express waiver of immunity found in later statutes affecting potential immunity of governmental agencies. Clemons argues that this is because the statute was enacted before such a provision could have been deemed necessary. The Board of Education claims that the failure of the statute to include such an express waiver prohibits coverage of injuries such as those incurred by Clemons. The trial court ruled that pursuant to Reyes v. Hardin County, supra, an express waiver of immunity was required, and dismissed Clemons' claims because no such express waiver is found in KRS 160.310. The statute predates the explicit need for a waiver, therefore, on its face the statute is sufficient to act as a qualified waiver of immunity. In Reyes, supra, the Kentucky Supreme Court held that a suit may properly be filed against a county, despite governmental immunity, to measure the injured party's entitlement to compensation under a liability insurance policy. 55 S.W.3d at 538. The law is clear in holding that a municipality or otherwise governmentally immune agency may be held liable for the torts of its employees and that purchase of insurance to protect against such liability is appropriate. Schwindel v. Meade County, 113 S.W.3d 159, 164 (Ky. 2003). Similarly, teachers may be held liable for tortuous action or inaction with regard to students. Williams v. Kentucky Department of Education, 113 S.W.3d 145, 148 (Ky. 2003). Boards of Education may purchase insurance to protect against liability in those instances. Purchase of insurance may properly be held to waive immunity to the extent of the insurance coverage purchased. Board of Educ. of Rockcastle Co. v. Kirby, 926 S.W.2d 455 (Ky. 1996).
KRS 160.310 permits a Board of Education to purchase insurance to protect against liability for the action or inaction of employees. It follows, therefore, that immunity from suit for the actions of employees is waived up to the limits of the liability insurance purchased. After all, there would be no point in purchasing insurance if the insurance provided no coverage to those injured by the insured. The statute would have no purpose under such circumstances. The law presumes that such statutes outline what damages may be recovered against a local governmental agency. Schwindel v. Meade County, supra, 113 S.W.3d at 163 (Ky. 2003). The damages incurred by Clemons fall within the damages insured against. For this reason, Clemons may properly sue to recover damages up to the limits of the liability insurance obtained by the Board of Education. The court's dismissal based on grounds of immunity is reversed.
Clemons failed to identify the bus driver or the student instituting the attack. CR 4.15 allows a plaintiff to file suit against an unknown defendant. If such defendant has actual knowledge of the filing of the action, and such defendant is later made known to the court, Clemons may be able to claim liability on the part of that defendant. Schwindel v. Meade Co., 113 S.W.3d 159, 170 (Ky. 2003). Failure to identify defendants at this early stage of the proceedings was improperly found a fatal flaw in the action. The court's dismissal based on failure to name the defendants is reversed, and the action remanded for further proceedings.
ALL CONCUR.
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