Brandeis Hall of Justice and Jefferson County Judicial Center, Louisville, Kentucky taken at night using tripod, remote shutter. 11/4/2015 by Mike Stevens.
Published Court of Appeals appellate cases for this week –
November 6, 2015: Links are to full text of PDF decision with AOC.
877. Criminal Law.
Stacey L. Wigginton vs. Commonwealth of Kentucky
COA Published Opinion Reversing; Graves County
KRAMER, JUDGE: Stacey L. Wigginton entered a conditional guilty plea to reckless homicide, a Class D felony, for killing her ex-husband, Billy Russell Riley. Stacey was sentenced to serve five years. Pursuant to that plea, she now appeals her judgment of conviction, specifically the Graves Circuit Court’s denial of her assertion of immunity from prosecution under Kentucky Revised Statutes (KRS) 503.085. After careful review, we reverse the trial court’s denial of immunity.
888. Torts. Defenses. Governmental immunity vs. sovereign immunity.
Parking Authority of River City, Inc. vs. Bridgefield Casualty Insurance Company
COA Published Opinion Affirming; Jefferson County
DIXON, JUDGE: Appellant, Parking Authority of River City, Inc. (PARC), appeals from an order of the Jefferson Circuit Court denying its motion to dismiss and finding that it is not entitled to immunity in a personal injury lawsuit brought by an individual injured while on PARC’s premises. Finding no error, we affirm.
Kentucky law distinguishes between sovereign immunity and governmental immunity and, as a result, draws a distinction between the protections afforded state and county governments as opposed to those afforded governmental agencies or entities. The Commonwealth and its counties are entitled to sovereign, or absolute, immunity from suit, absent an express consent or waiver. Comair, Inc. v. Lexington–Fayette Urban County Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009). A merged urban-county government, such as Louisville Metro, is a classification of county government that is likewise afforded sovereign immunity. Lexington–Fayette Urban County Gov’t v. Smolcic, 142 S.W.3d 128, 132 (Ky. 2004).
Governmental immunity, on the other hand, is a derivative of sovereign immunity and is granted to qualified governmental agencies or entities. The test for whether an entity qualifies for governmental immunity is two-pronged. Comair, 295 S.W.3d at 99. The court must first examine the origin, or “parent,” of the entity to determine if the entity is an agency (or alter ego) of a clearly immune parent. Id. Second, the court must assess whether the entity performs a “function integral to state government.” Id. (Quoting Kentucky Center for the Arts Corp. v. Berns, 801 S.W.2d 327, 332 (Ky.1990)). The rationale for this showing is that sovereign immunity “should extend … to departments, boards or agencies that are such integral parts of state government as to come within regular patterns of administrative organization and structure.” Id. (citation omitted). Examples of state level governmental concerns include police, public education, corrections, tax collection, and public highways. Id. Conversely, entities performing proprietary functions and/or addressing purely local concerns do not qualify for the protections of governmental immunity. Id. at 99–100. As noted by our Supreme Court in Comair, “both of these inquiries—the sources of the entity in question and the nature of the function it carries out—are tied together to the extent that frequently only an arm of the state can exercise a truly integral governmental function (whereas municipal corporations tend to exercise proprietary functions addressing purely local concerns).” Id. at 99–100.
Recently, in Transit Authority of River City v. Bibelhauser, 432 S.W.3d 171, 173 (Ky. App. 2013), a panel of this Court addressed the issue of whether TARC was entitled to immunity from an underlying negligence action filed by an individual injured when he was struck by a TARC bus. The trial court had denied TARC’s motion for partial summary judgment on immunity grounds. On appeal, TARC first claimed it was entitled to sovereign immunity by virtue of KRS 67C.101(2)(e), which affords a consolidated local government such as Louisville Metro the same sovereign immunity as counties, their agencies, officers and employees, as well as KRS 96A.020, which governs a transit authority’s creation and existence. In rejecting TARC’s claim of sovereign immunity, this Court concluded:
These statutes do not afford TARC sovereign immunity. KRS 96A.020(1) clearly states that TARC is “a public body corporate” with the power “to sue and be sued” and “to have and exercise, generally, all of the powers of private corporations . . . .” In Gross v. Ky. Bd. Of Managers, 105 Ky. 840, 49 S.W. 458, 459 (1899), the court addressed a similar issue and held that, while the Kentucky Board of Managers was an agency of the state, . . . the [] Board could be sued for its corporate acts, just like any other corporation, and its contracts were its obligation, not that of the state. Id. As in Gross, TARC’s authority is more corporate than governmental. Thus, its actions are not cloaked in sovereign immunity.
Bibelhauser, 432 S.W.3d at 173-174
The Bibelhauser Court similarly rejected TARC’s claim that it was entitled to governmental immunity.
PARC is not the sole, or even predominant, provider of parking in Louisville. It certainly does not provide the primary means by which people travel or cargo is moved throughout the Commonwealth. PARC merely provides a portion of parking in the Metro area, a function that must be equated to a local proprietary venture rather than that integral to state government. As such, just as TARC failed to meet the second prong of the Comair test in Bibelhauser, PARC also fails in its attempt herein. Accordingly, PARC is not entitled to governmental immunity and is not immune from liability in the action herein.
For the reasons set forth herein, the order of the Jefferson Circuit Court is affirmed.
889. Criminal Law. Search and seizure.
Jessica M. Burdette vs. Commonwealth of Kentucky
COA Published Opinion Affirming. Madison County.
TAYLOR, JUDGE: Jessica M. Burdette brings this appeal from an October 30, 2014, Final Judgment and Sentence of Imprisonment of the Madison Circuit Court upon a conditional guilty plea to the charge of theft by unlawful taking under $500 and promoting contraband in the first degree. We affirm.
There was one Court of Appeal’s “not to be published” decisions on Trials, torts, insurance and civil procedure from November 6, 2015, in addition to the published decision above.
880. Arbitration
Paducah Health Facilities LP d/b/a McCracken Nursing & Rehabilitation Center vs. Mary Newberry, Ex’x Estaate of Tom Caldwell
COA Nonpublished Opinion Affirming; McCracken County
ACREE, CHIEF JUDGE: Appellants, Paducah Health Facilities, et al. (Paducah Health), appeal the McCracken Circuit Court’s October 21, 2013 partial denial of their Motion to Compel Arbitration. Paducah Health’s challenge requires us to consider whether Section 2 of the Federal Arbitration Act (FAA), 9 U.S.C. §2 (2000), preempts the Kentucky Supreme Court’s recent decision in Ping v. Beverly Enterprises, Inc., 376 S.W.3d 581, 588 (Ky. 2012) cert. denied, 133 S. Ct. 1996, 185 L. Ed. 2d 879 (2013). Because the FAA does not preempt Ping, we affirm.
Click here for links to all the archived AOC Court of Appeals minutes at the web site for the Administrative Office of the Courts.
Click here for a listing of the Kentucky Court Report’s posts of the weekly COA minutes (or you can always access these within the KCR web site at the uppermost dropdown menu option for the Court of Appeals).
AOC version of this week’s decisions can be accessed by clicking here.
The complete set of this week’s minutes listing all decisions (published and not to be published) with links to the full text of each at the AOC, are below following short summaries of this week’s published cases and extracts of tort, insurance and procedure cases.
[gview file=”https://kycourtreport.com/wp-content/uploads/2015/11/MNT11062015.pdf”]
