Request By:
Mr. William L. Shadoan
Ballard County Attorney
Courthouse
Wickliffe, Kentucky 42087
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
The fiscal court in the past procured a liability policy. It was a large and broad insurance policy and contained a liability provision on comprehensive general. A year later, when the fiscal court became aware of the liability provision on comprehensive general, it increased the amount of coverage. Now the fiscal court is preparing to let bids for insurance coverage of the county over a three year period. The fiscal court wants to eliminate the liability comprehensive general provisions from its policy.
Your question: Has the fiscal court waived sovereign immunity by procuring in the past liability comprehensive general provisions? The answer is "no."
A county is a political subdivision of the Commonwealth and as such is an arm of the state government. The county, as well as the state, is clothed with sovereign immunity. See § 231,
Kentucky Constitution and Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) 408. Thus a waiver of this immunity can only be through an express act of the General Assembly.
Your county has permissive authority under KRS 67.180 to purchase liability insurance covering vehicles operated by the county and compensation insurance covering county employes receiving injuries arising out of and in the course of employment. Suits on such policies may be maintained against the county only for the purpose of obtaining a judgment which when final shall measure the liability of the insurance carrier to the injured party for whose benefit the policy was issued, but not to be enforced or collectible against the county or fiscal court or the members thereof. Under KRS 67.186 the fiscal court, if there is a county operated hospital in the county, may provide for liability and indemnity insurance for the benefit of the hospital against the negligence of the employes of such hospital. Here again such purchase is permissive.
Thus your county is only authorized to procure insurance as outlined in KRS 67.180 and 67.186 (if you have a county hospital).
It is our opinion that the fiscal court had no authority to purchase liability insurance on a comprehensive general basis. If it buys insurance at all, it must follow the subject statutes as to the scope of the insurance coverage. Thus the fiscal court should eliminate such general liability coverage from its policy. The fact that it purchased such general liability insurance in the past in no way constitutes a waiver of the county's sovereign immunity. Further, as we said, the fiscal court's duty in purchasing liability insurance is simply to comply with the permissive statutes cited above. Do not forget that these statutes impose no obligation or duty on the fiscal court to purchase such insurance.