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Noel v. Welch

Court of Appeals of Kentucky

March 15, 2019

ANTHONY NOEL APPELLANT
v.
TREVOR WELCH, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS EMPLOYEE, SERVANT, AND/OR AGENT OF LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT AND/OR LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT DIVISION OF POLICE; LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT; LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, DIVISION OF POLICE; and LEXINGTON-FAYETTE URBAN COUNTY GOVERNMENT, DIVISION OF FLEET SERVICE APPELLEES

          APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE KIMBERLY N. BUNNELL, JUDGE ACTION NO. 17-CI-02505

          BRIEFS FOR APPELLANT: Sandra M. Varellas D. Todd Varellas Lexington, Kentucky

          BRIEF FOR APPELLEES: Jason S. Morgan Kathryn A. Eckert Lexington, Kentucky

          BEFORE: KRAMER, LAMBERT, AND NICKELL, JUDGES.

          OPINION AFFIRMING

          NICKELL, JUDGE.

         Anthony Noel challenges an order entered by the Fayette Circuit Court on November 27, 2017. Citing sovereign immunity, that order dismissed from a personal injury suit Lexington-Fayette Urban County Government ("LFUCG"), Lexington-Fayette Urban County Government Division of Police, Lexington-Fayette Urban County Government Division of Fleet Service, and Officer Trevor Welch in his official capacity (collectively "LFUCG Defendants"). The action continues against Officer Welch in his individual capacity. After consideration of the briefs, law and record, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         On November 23, 2016, Noel was riding a bicycle against traffic on Winchester Road in Lexington, Kentucky. Officer Welch-in uniform and acting in the scope of duty-turned his LFUCG-owned police car in front of Noel. As a result, Noel collided with the driver-side door of Officer Welch's cruiser, fell and sustained physical injuries. On July 11, 2017, alleging Officer Welch acted with negligence, Noel filed suit against Welch in both his individual and official capacities, and against all other LFUCG Defendants. Noel demanded no-fault Personal Injury Protection ("PIP") benefits, compensatory and punitive damages.

         On July 31, 2017, citing Lexington-Fayette Urban County Government v. Smolcic, 142 S.W.3d 128 (Ky. 2004), LFUCG Defendants moved for dismissal from the suit arguing Noel had failed to state a claim and asserting the cloak of sovereign immunity as protection from civil judgments and the costs and burdens of defending such actions. One day later, LFUCG Defendants answered the complaint, again urging dismissal, with prejudice, of all claims. Welch, in his individual capacity, did not join the motion to dismiss. Instead he filed a separate answer to the complaint.

         Noel opposed dismissal, calling sovereign immunity "archaic," "outdated and arbitrary." He claimed LFUCG's purchase of automobile liability insurance-as permitted by KRS[1] 67.180-waived sovereign immunity up to policy limits. Ginter v. Montgomery County, 327 S.W.2d 98, 100 (Ky. 1959).

         In its reply supporting the motion to dismiss, LFUCG Defendants asserted entitlement as an urban-county government entitlement to sovereign immunity unless such authorization "expressly repealed or amended." KRS 67A.060(2). Additionally, they maintained LFUCG is self-insured and Noel's claim was outside the grasp of KRS 67.180(2) which at most allows suit to be filed against a government to "measure the liability of the insurance carrier to the injured party." KRS 67.180(2). LFUCG Defendants specifically argued:

LFUCG has not purchased an automobile liability policy of insurance, and therefore has not waived its immunity [under KRS 67.180].
LFUCG has not purchased private motor vehicle liability insurance for motor vehicles owned by the city or for any compensation to its employees for purposes of worker's [sic] compensation as contemplated under the limited waiver of KRS 67.180. Any claims of management or investigation service investigating claims under its self-insurance retention fund does not constitute a policy of liability insurance. Phillips v. Lexington-Fayette Urban County Government, 331 S.W.3d 629, 632 (Ky. App. 2010). Only if such a motor vehicle policy of insurance had been purchased with a third-party insurance carrier would the wavier [sic] alleged by [Noel] fall within the language of KRS 67.180. The case law cited by [Noel] in his Response addresses county governments having purchased motor vehicle insurance policies for county-owned motor vehicles, and even those could never be enforced against the county government-only the insurer. See Monroe County v. Rouse, 274 S.W.2d 477 (Ky. 1954); see also Ginter v. Montgomery County, 327 S.W.2d 98 (Ky. 1959). Reyes v. Hardin County, 55 S.W.3d 337 (Ky. 2001) and Grayson County Bd. of Education v. Casey, 157 S.W.3d 201 (Ky. 2005) merely identify that KRS 67.180 contains an express but limited waiver of sovereign immunity for suits against counties having purchased insurance coverage for motor vehicle accidents and workers' compensation claims.

         Filed with LFUCG Defendant's reply was an affidavit executed by M. Keith Horn, LFUCG's managing attorney, stating:

2. [LFUCG] is a self-insured entity with a self-insured retention fund[2] and does not depend on a third-party insurer for basic claims needs, such as workers' ...

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