REVIEW FROM COURT OF APPEALS CASE NO. 2014-CA-000997-MR
FRANKLIN CIRCUIT COURT NO. 13-CI-00202
COUNSEL FOR APPELLANT: Craig Christman Dilger Steven Clark
Emily Mattingly Stoll Keenon Ogden PLLC
COUNSEL FOR APPELLEE: Robert W. Bishop John Saoirse Friend
Tyler Zachary Korus Bishop Korus Friend, P.S.C.
University of Louisville (U of L), appeals the decision of
the Court of Appeals affirming the order of the Franklin
Circuit Court, denying U of L's immunity against suit in
this case. We granted discretionary review and, for the
reasons stated herein, affirm the Court of Appeals and remand
to the Franklin Circuit Court for further proceedings.
U of L
recruited Appellee, Mark Rothstein (Rothstein), as a
professor of medicine in 2000. He was granted tenure as the
Herbert F. Boehl Chair of Law and Medicine and appointed as a
Distinguished University Scholar (DUS) under a five-year
renewable contract. This DUS contract is at issue in the
underlying case. As we do not reach the substantive merits of
this case based on its procedural stance, we need not
unnecessarily recite the terms and minutia of the process.
However, importantly here, disputes arose between U of L and
Rothstein regarding the adherence of the parties to this DUS
contract. Ultimately, Rothstein's DUS contract was
terminated and he filed suit against U of L for breach of
this written contract.
parties moved the Franklin Circuit Court for summary
judgment; U of L partially based its motion on its status as
a state agency and its resulting immunity from suit. Although
U of L agreed that Kentucky Revised Statute (KRS) 45A.245
waives immunity for breach of contract actions against the
Commonwealth, U of L argued that this immunity does not
extend to employment contracts. U of L stated that the KRS in
question was part of the Kentucky Model Procurement Code
(KMPC), which had no bearing on the hiring of faculty by a
university and, thus, the waiver did not extend to the
employment contract in question.
Circuit Court denied U of L's argument that sovereign
immunity barred Rothstein's claims for breach of the
written contract. It found KRS Chapter 45A applicable to
written employment contracts and that the legislature had
thus waived immunity for suits like Rothstein's.
U of L
appealed solely on the issue of whether it should have been
shielded by the doctrine of sovereign immunity for
Rothstein's claims of breach of contract. The Court of
Appeals found there was a written employment contract and
that KRS 45A.245 clearly constituted an unequivocal waiver of
immunity for such contract claims.
again, U of L appealed this decision and moved this Court for
discretionary review. We granted review and for the reasons
stated herein, affirm the Court of Appeals and hold that the
legislature has waived immunity for all claims arising out of
lawfully authorized written contracts with the Commonwealth
and its agencies.
STANDARD OF REVIEW.
issue of whether a defendant is entitled to the defense of
sovereign or governmental immunity is a question of law.
See Rowan County v. Sloas, 201 S.W.3d 469, 475 (Ky.
2006) (citing Jefferson County Fiscal Court v.
Peerce, 132 S.W.3d 824, 825 (Ky. 2004)). Questions of
law are reviewed de novo. Cumberland Valley Contractors,
Inc. v. Bell County Coal Corp., 238 S.W.3d 644, 647 (Ky.
2007). We also note that "an order denying a substantial
claim of absolute immunity is immediately appealable even in
the absence of a final judgment." Breathitt County
Bd. of Educ. v. Prater, 292 S;W.3d 883, 887 (Ky. 2009).
this Court is faced with a decision it has declined to answer
before: whether KRS 45A.245, codified within the KMPC, waives
immunity for all contracts with the state, including written
employment contracts. We now hold that KRS 45A.245 is an
unqualified waiver of immunity iri all cases based, on a
written contract with the Commonwealth, including but not
limited to employment contracts. We hold that this immunity
is not limited to contracts entered into pursuant to
the KMPC and thus, therefore, decline to dictate whether the
hiring of university professors must comply with the
remaining provisions of the KMPC.