Request By:
Mr. Sherman Dean, Jr.
Jessamine County Judge/Executive
Courthouse
Nicholasville, Kentucky 40356
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You request our opinion on the following questions:
Question No. 1:
"Is the county liable under the doctrine of sovereign immunity for damages to vehicles of motorists using county roads? A motorist received a cracked windshield during a storm while traveling on a county road and made claim to the fiscal court for his damages. The county has no liability insurance. "
A county is immune from liability, generally, under the doctrine of sovereign immunity. The court, in
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) 408, extended the doctrine of sovereign immunity applicable to state government under § 231 of the Kentucky Constitution to counties, as political subdivisions of the state and as arms of the state government.
By KRS 67.180, 67.185, and 67.186, the General Assembly has provided relief against the negligence of county employees in the operation of motor vehicles and hospitals and protection against compensation claims. Where the fiscal court procures such liability insurance, the doctrine of sovereign immunity is still preserved, since the statute, KRS 67.180(2), clearly recognizes that doctrine in providing that a suit on such policy is maintainable against the county (within the policy coverage) only for the purpose of obtaining a judgment which shall measure the liability of the insurance carrier, and shall not be enforced or collectible against the county or fiscal court as the governing body of the county.
Ginter v. Montgomery County, Ky., 327 S.W.2d 98 (1959) 100.
In the example you gave, if the windshield was damaged during the storm as a direct result of the storm, then no one is responsible in tort for such acts of God. If the damages were proximately caused by a defect in the county road, then there might be personal liability as to the individual members of the fiscal court, since those members have a positive duty to keep county roads in adequate repair. See KRS 67.080, Chapter 179, and
Shearer v. Hall, Ky., 399 S.W.2d 701 (1966). See also § 227 of the Kentucky Constitution and KRS 61.170, relating to indictment for wilful neglect of official duties. The court in Shearer, above, said that KRS 67.080 by implication places the fiscal court members under a duty to exercise some degree of care and diligence in the performance of such duties.
Thus the answer to Question No. 1 is that the county has no liability as to such vehicle damage suffered on a county road, regardless of whether the damage was proximately caused by an act of God or by a road defect.
Question No. 2:
"Does KRS 67.180 permit the county to purchase policies of insurance 'of all kinds available' to the extent of any general liability policy or is it limited to 'covering vehicles operated by the county and compensation insurance covering employees . . .?'"
KRS 67.180 reads:
"(1) The fiscal court of each county containing a city of the second, fourth, fifth or sixth class may, in its discretion, for the protection of the public and its employes, appropriate county funds to purchase policies of insurance of all kinds deemed advisable, covering vehicles operated by the county, and compensation insurance covering employes of the county receiving injuries arising out of and in the course of employment.
"(2) Suits instituted 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 insurance policy was issued, but not to be enforced or collectible against the county or fiscal court or the members thereof."
The fiscal court is not obligated to purchase liability insurance under that statute, but if it does the amount of coverage is left to its discretion. But importantly, the liability insurance is restricted to covering only vehicles operated by the county. The compensation insurance is restricted to covering employees of the county receiving injuries arising out of and in the course of employment. That statute does not authorize the county to purchase liability insurance on a comprehensive general basis.
However, KRS 65.150(1) permits any county to expend funds necessary to insure any of its employees and officials against any liability arising out of an act or omission committed in the scope and course of performing legal duties.