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Commonwealth v. Harris11/21/2001
ment. The Board of Claims statute, KRS 44.070(l), whereby immunity is waived under the provisions of the act is written broadly. The relevant language is "the Commonwealth, any of its cabinets, departments, bureaus, or agencies, or any of its officers, agents, or employees." In my judgment this is more than adequate to vest the Board of Claims with jurisdiction to adjudicate negligence claims against counties. As shown in Cullinan, Malone, and other cases, counties are treated as appendages of central state government. Thus, counties may be properly regarded as "the Commonwealth" and subject to Board of Claims jurisdiction. If this is not so, however, use of language such as "cabinets, departments, bureaus, or agencies" is ample. I conclude, therefore, that KRS 44.070(l) was intended to vest the Board of Claims with jurisdiction of counties where negligence is alleged.
My view in this regard is strengthened by the dreadful unfairness of the result in the majority opinion. After having held that counties are not subject to suit in circuit court, the majority has gone further and held that neither are counties subject to Board of Claims proceedings. Thus, one injured by the negligence of a county is totally and completely without a remedy or any avenue of recovery.
The holding in the majority opinion directly contradicts Withers v. Universitv of Kentucky. In that case, the Court analyzed sovereign immunity in connection with a claim asserted against the University of Kentucky and its medical center. This Court held that the University of Kentucky was an immune entity as it was an arm of central state government. This Court reasoned, however, that claims against immune entities fall within the purview of the Board of Claims Act. We stated that "The Board of Claims Act and sovereign immunity are co-extensive. It follows that a plea of sovereign immunity is an admission of Board of Claims jurisdiction."
The opinion of the majority evades logic and fundamental fairness. The Board of Claims was created precisely to prevent the harshness associated with the doctrine of sovereign immunity. One claiming benefits of the doctrine should not be heard to deny that the Board of Claims can hear the case and grant compensation as provided for in the Act.
Stumbo and Wintersheimer, JJ., join this dissenting opinion.
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