The UNIVERSITY OF LOUISVILLE and John R. Johnson, M.D., Appellant, v. Honorable Earl O‘BANNON, Judge, Jefferson Circuit Court, Archie B. Hall and Elina Hall, real parties in interest, Appellees.
No. 87-SC-604-MR.
Supreme Court of Kentucky.
Feb. 9, 1989.
Rehearing Denied June 8, 1989.
770 S.W.2d 215
Ben J. Talbott, Jr., Timothy J. Salansky, Westfall, Talbott & Woods, Thomas H. Lyons, University Counsel, University of Louisville, Louisville, for appellant University of Louisville.
Theodore L. Mussler, Jr., Charles E. Theiler, II, Louisville, for appellees.
WINTERSHEIMER, Justice.
This appeal is from a decision of the Court of Appeals which denied a petition seeking to prohibit the trial of a medical
The issue is whether the circuit court can exercise jurisdiction over such an action after the enactment of
The litigation was commenced by Archie Hall and his wife Elina against Humana of Virginia, Inc.; Humana, Inc.; University of Louisville Hospital, Inc.; University of Louisville and John R. Johnson, M.D., seeking recovery for alleged negligent medical treatment in connection with a puncture wound on Archie Hall‘s left foot. Hall claims improper administration of an antibiotic drug resulted in permanent ringing in his ears. All defendants denied any liability.
Dr. Johnson and the University of Louisville pleaded sovereign immunity and moved to dismiss the action as to them. The Court of Appeals refused to prohibit the trial. An appeal has now been perfected in this Court.
Dunlap v. University of Kentucky Student Health Services Clinic, Ky., 716 S.W.2d 219 (1986), held that
Kestler v. Transit Authority of Northern Kentucky, Ky., 758 S.W.2d 38 (1988) reflects the fact that
Retroactive application of legislation absent a clear legislative intent in that respect is impermissible. Shaw v. Seward, Ky.App., 689 S.W.2d 37 (1985). If the legislature had intended to have the statute be retroactive, it would have expressly stated. A statute will not be given retroactive effect unless it is clearly expressed therein. Roberts v. Hickman County Fiscal Court, Ky., 481 S.W.2d 279 (1972). Unless the legislative intent is clear, the presumption is for prospective application. Everman v. Miller, Ky.App., 597 S.W.2d 153 (1979).
The reduction of the jurisdiction of the Court, when considered in regard to pending cases, should be applied only when it can be demonstrated that the legislative body intended to make it so apply. Cf. Matter of District of Columbia Workmen‘s Compensation Act, 554 F.2d 1075, 1078-81 (D.C.Cir.1976).
The interpretation of
We cannot quarrel with the right of the General Assembly to define or extend the provisions for suit against the state embodied in
Whether a particular circumstance constitutes a cause of action against a specific entity is a matter of substantive law as distinguished from procedural law. As such a statute on the subject has no retroactive application unless such is specified in the statute. The use of the word “maintain” in
If the General Assembly had intended procedural impact upon suits already in progress, subsection 8 could have stated “no action for negligence could be brought or maintained....” It is highly debatable whether the General Assembly could, if it wished, terminate substantive rights, such as an existing cause of action under prior statutes and case law interpreting those statutes. However, there is no reason to interpret the statutory language when considered in context as attempting to do so.
Reliance on Smallwood v. Gallardo, 275 U.S. 56, 48 S.Ct. 23, 72 L.Ed. 152 (1927) is misplaced because the Court in that case was careful to point out that the statute and its interpretation did not affect or impair the vested rights of the petitioners and that they still had other methods to achieve their legal goals. Here, the plaintiff‘s vested rights would be substantially impaired and definitely limited and changed by diversion to the Board of Claims.
The meaning of the word “maintain” has been widely litigated and differently defined by a number of courts and legal authorities. More important than semantics, is the fact that Kentucky Rules of Statutory Construction and a reasonable interpretation of the law does not allow
Dr. Johnson cannot avail himself of sovereign immunity. Happy v. Erwin, Ky., 330 S.W.2d 412 (1959) provides that a statute which purports to extend immunity enjoyed by the governmental agency to the personal liability of its employees violates Sections 14 and 54 of the Kentucky Constitution and would violate Section 241, if a death were involved. The constitution prohibits the abolition or diminution of legal remedies for personal injuries. Carney v. Moody, Ky., 646 S.W.2d 40 (1982). The legislature may not abolish an existing common law right or action for personal injuries. Cf. Saylor v. Hall, Ky., 497 S.W.2d 218 (1973).
The decision of the Court of Appeals is affirmed, and this matter is remanded to the circuit court to proceed with trial.
STEPHENS, C.J., and COMBS, LAMBERT and LEIBSON, JJ., concur.
VANCE, J., dissents by separate opinion in which GANT, J., joins.
VANCE, Justice, dissenting:
The question is whether
This litigation was commenced by Archie Hall and his wife, Elina Hall, against Humana of Virginia, Inc.; Humana, Inc.; University of Louisville Hospital, Inc.; University of Louisville, and John R. Johnson, M.D. seeking recovery for negligent medical treatment. The University of Louisville and Dr. Johnson pleaded sovereign immunity and moved to dismiss the action as to them. The motion was denied, and original proceedings were instituted in the Court of Appeals seeking to prohibit the trial of the action. The Court of Appeals denied the petition, and an appeal has been perfected in this court.
In Dunlap v. University of Kentucky Student Health Services Clinic, Ky., 716 S.W.2d 219 (1986), we held that
Subsequent to the decision of Dunlap, the General Assembly enacted
“It is the intention of the general assembly to provide the means to enable a person negligently injured by the Commonwealth, any of its cabinets, departments, bureaus or agencies, or any of its officers, agents or employes while acting within the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies to be able to assert their just claims as herein provided. The Commonwealth thereby waives the sovereign immunity defense only in the limited situations as herein set forth. It is further the intention of the general assembly to otherwise expressly preserve the sovereign immunity of the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employes while acting in the scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies in all other situations except where sovereign immunity is specifically and expressly waived as set forth by statute. The board of claims shall have exclusive jurisdiction to hear claims for damages, except as otherwise specifically set forth by statute, against the Commonwealth, its cabinets, departments, bureaus, agencies or any of its officers, agents or employes while acting within the scope of their employment by the Commonwealth, its cabinets, departments, bureaus or agencies.”
“(8) No action for negligence may be brought in any court or forum other than the board of claims against the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employes while acting within the scope of their employment by the Commonwealth, or any of its cabinets, departments, bureaus or agencies.”
. . .
“(11) Except as otherwise provided by this chapter, nothing contained herein shall be construed to be a waiver of sovereign immunity or any other immunity or privilege maintained by the Commonwealth, its cabinets, departments,
bureaus and agencies and its officers, agents and employes. “(12) Except as otherwise specifically set forth by statute and in reference to subsection (11) of this section, no action for damages may be maintained in any court or forum against the Commonwealth, any of its cabinets, departments, bureaus or agencies or any of its officers, agents or employes while acting within their official capacity and scope of their employment by the Commonwealth or any of its cabinets, departments, bureaus or agencies.”
In Kestler v. Transit Authority of Northern Kentucky, Ky., 758 S.W.2d 38 (1988), we held that
The opinion in Kestler did not consider the applicability of
In this case the appellants contend that
“To maintain a suit is to uphold, continue on foot and keep from collapse a suit already begun.” Smallwood v. Gallardo, 275 U.S. 56, 48 S.Ct. 23, 72 L.Ed. 152 (1927).
Whatever waiver of immunity was given by
The majority opinion holds that Dr. Johnson, an employee of the Commonwealth, is not entitled to immunity under the statute because governmental immunity of an agency of government cannot be extended constitutionally to employees of the agency. I agree that this attempted statutory extention of immunity to an employee under the circumstances of this case would not pass constitutional muster if the appellees had raised the issue of the constitutionality of the statute. This issue was not raised, however.
Ordinarily, courts do not declare statutes unconstitutional if there is another basis for disposition of the case. It is surprising to me that this court would declare the statute unconstitutional insofar as it extends immunity to state employees when that issue was not even raised, nor was it decided by the trial court.
The majority opinion states that if the legislature had intended to prevent the continued progress of lawsuits underway, Section 8 of the statute could have said: “No action for negligence could be brought or maintained.”
This is precisely what the statute says. Section 8 states that no action can be brought, and Section 12 states that no action can be maintained.
I would hold that
GANT, J., joins in this dissent.