Request By:
Kendall Robinson, Esq.
Owsley County Attorney
Booneville, Kentucky 41314
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter stating that the fiscal court is considering the purchase of two dump trucks and a backhoe to be used in connection with road and bridge maintenance work in the county. You ask whether it is necessary, or at least advisable, for the fiscal court to maintain liability insurance on such vehicles and equipment even though the county is not subject to suit and is protected by sovereign immunity. You also ask whether the defense of sovereign immunity would be available to the insurance company to absolve itself of liability on the policy should a claim arise in a situation where the county was carrying liability insurance on the vehicles and equipment.
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 still clothed with sovereign immunity. See Section 231 of the Kentucky Constitution;
Cullinan v. Jefferson County, Ky., 418 S.W.2d 407 (1967) and
George M. Eady Co. v. Jefferson County, Ky., 551 S.W.2d 571 (1977). A waiver of this immunity can only occur as a result of an express act of the Kentucky General Assembly.
At this point we direct your attention to KRS 67.180, which provides as follows:
"(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 employees, appropriate county funds to purchase policies of insurance of all kinds deemed advisable, covering vehicles operated by the county, and compensation insurance covering employees 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."
Thus, as we said in OAG 77-609, copy enclosed, the fiscal court is not obligated to purchase liability insurance but it has permissive authority under KRS 67.180 to purchase liability insurance covering vehicles operated by the county. The amount of coverage is left to the sound discretion of the fiscal court as the statute mentions no specific monetary amounts and such insurance, to the extent of coverage, constitutes a legislative exception to sovereign immunity. See
Rather v. Allen County War Memorial Hospital, Ky., 429 S.W.2d 860 (1968) and OAG 73-160, copy enclosed.
However, pursuant to KRS 67.180(2), 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. Where the fiscal court buys insurance it must follow the applicable statutes as to the scope of the insurance coverage which, in this particular case, is KRS 67.180.
In conclusion, the fiscal court is not obligated to purchase liability insurance as it is still protected by the concept of sovereign immunity, but it has, pursuant to KRS 67.180, permissive authority to purchase liability insurance covering county-operated vehicles. The insurance company from whom such insurance is purchased cannot assert the defense of sovereign immunity, and any suit brought on such a policy is subject to the limitations set forth in KRS 67.180(2).