Withers v. University of Kentucky

In Withers v. University of Kentucky, Ky., 939 S.W.2d 340 (1997), the Court set the record straight concerning waivers and the effect of purchasing insurance. The Court reviewed Dunlap v. University of Kentucky Student Health Services Clinic, Ky., 716 S.W.2d 219 (1986), wherein it was determined that legislative authority to purchase liability insurance constituted a partial waiver of sovereign immunity, to the extent of insurance coverage. The Withers Court, 939 S.W.2d at 345, recognized that in response to Dunlap, the General Assembly enacted statutes to preserve sovereign immunity unless there was an express waiver in a statute. To prevent misunderstanding of the intention of a statute, the General Assembly added KRS 44.073(14) which provides: The filing of an action in court or any other forum or the purchase of liability insurance or the establishment of a fund for self-insurance by the Commonwealth, its cabinets, departments, bureaus, or agencies or its agents, officers, or employees thereof for a government-related purpose or duty shall not be construed as a waiver of sovereign immunity or any other immunity or privilege thereby held.The Withers Court, 939 S.W.2d at 346, concluded "that the 1986 statutory changes abrogated the rule in Dunlap and its line of decisions which found waiver of immunity based on the purchase of liability insurance whether or not pursuant to statutory authorization." The Court went on to state that: henceforth, in an effort to avoid the morass we have heretofore been in, we will observe a rule similar to the one found in Edelman v. Jordan, 415 U.S. 651, 673, 94 S. Ct. 1347, 1361, 39 L. Ed. 2d 662, 678 (1974), as follows: We will find waiver only where stated "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction." Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S. Ct. 458, 464-65, 53 L. Ed. 742 (1909). (Withers, 939 S.W.2d at 346.) The Kentucky Supreme Court noted: The determination of whether an entity is entitled to protection by the constitutional principle of sovereign immunity is for the judiciary. The General Assembly has no power to extend or limit the class of entities entitled to sovereign immunity as this determination must be made from Section 231 of the Constitution. In Withers, the appellant made a similar argument, which the Supreme Court rejected. If immunity exists, it is not lost or diminished or affected in any manner by the purchase of liability insurance or the establishment of an indemnity fund, whether directed or authorized by statute or merely undertaken without authorization, notwithstanding that such may have been an unnecessary expenditure of funds. (Withers, 939 S.W.2d at 346.)