Phillips argues that LFUCG waived sovereign immunity by virtue of its purchase of private liability insurance, and thus that summary judgment in its favor was in error. In support of this proposition Phillips cites to Grayson County Bd. of Education v. Casey, 157 S.W.3d 201 (Ky. 2005). LFUCG counters that it has not purchased liability insurance, but is instead a self-insured entity. LFUCG claims that it has employed a claims management and investigation service that provides assistance in investigating claims under the self-insurance retention fund, but that this does not constitute a “policy of liability insurance.”
Further, LFUCG argues that even if it had purchased liability insurance, such a policy would not constitute a waiver of sovereign immunity. We agree with LFUCG that in order to constitute a waiver of sovereign immunity, the waiver must be so explicit as to leave no room for any other reasonable construction. See Withers v. University of Kentucky, 939 S.W.2d 340, 346 (Ky. 1997), citing Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464-65, 53 L.Ed.742 (1909). In the instant case, merely employing a claims management service to investigate claims under the self-insurance retention fund does not constitute an express waiver of sovereign immunity so explicit as to leave no room for any other reasonable construction.
LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT
LAMBERT (PRESIDING JUDGE)
STUMBO (CONCURS) AND SHAKE (SENIOR STATUS JUDGE) (CONCURS)
2009-CA-001613-MR old link which has error in it to coa decision
2009-CA-002101-MR corrected link to coa decision (has an "(" in link)
TO BE PUBLISHED