University of Louisville v. Rothstein, Mark

RENDERED: NOVEMBER 2, 2017

TO BE PUBLISHED

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2016-SC-000220-DG ·

UNIVERSITY OF LOUISVILLE APPELLANT

ON REVIEW FROM COURT OF APPEALS

CASE NO. 2014-CA-000997-MR

v. FRANKLIN CIRCUIT COURT NO. 13-CI-00202

MARK ROTHSTEIN APPELLEE

OPINION OF THE COURT BY JUSTICE KELLER

AFFIRMING

Appellant, 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.

I. BACKGROUND.

U of L recruited Appellee, Mark Rothstein (Rothstein), as a professor of

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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

undei-lying case. As we do. not reac~ 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 tb this DUS. contract.

Ultimately, Rothstein's DUS contract

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was terminated

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and he filed suit against

U of L for breach of this· written contract.

Both parties moved the Franklin Circuit Court for summary judgment; .U

of L partially based its motion on its ~tatus 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 agai,nst the

Commonwealth, U of L argued that this immunity does not extend to

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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.

Fran~in 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

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contract and that KRS 45A.245 clearly constituted an unequivocal waiver of

immunity for such contract claims.

Once again, U of L appealed this decision and moved th1s Court for

discretionary review. We granted review and for the reasons stated_ herein,

affirin 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 agendes.

II. STANDARD OF REVIEW.

The issue of whether a defendant is entitled to the defense of sovereign or

governmental immunity is a question of law. See Rou;an 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

absolu~e 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).

III. ANALYSIS.

Today, 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

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employment contracts. We hold that this immunity is not limited to contracts·

entered into pursuant to the KMPC and thus, therefore, d~cline to dictate

whether the hiring of university professors must comply with the remaining

provisions of the KMPC.

A. KRS 45A.245.

KRS 45A.245( 1) states:

Any person, firm or corporation, having a lawfully authorized

written contract with the Commonwealth at the time of or after

. June 21, 1974, may bring an action against the Commonwealth on

the contract, including but not limited to actions either for breach

of contracts or for enforcement of contracts or for both. Any such

action shall be brought in the. Franklin

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Circuit Court and shall be

tried by the court sitting without a jury. All defenses in law or

equity, except the defense of governmental immunity,. shall be

preserved to the Commonwealth.

KRS 45A.245(2) goes on to limit the amount of damages recoverable under this

section.

· As a preliminary matter, the University of Louisville is a state agency·

entitled to governmental immunity, 1 an extension of the Commonwealth's

sovereign immunity. See Furtula v. University of ~entue:ky, 438 S.W.3d 303,

305 (Ky. 2014) ("The state universities of this Commonwealth, including the

University of Kentucky, are state agencies that.enjoy the benefits and

protection of governmental immunity except where it has been explicitly waived

)

1 "'[G]overnmental immunity' is the public policy, derived from the traditional

do_ctrine of sovereign immunity, that limits imposition of tort liability on a governmen.t

agency." Yanero v. Davis, 65 S.W.3d 510, 519 (Ky. 2001) (citing 57 Am.Jur.2d,

Municipal, County, School and State Tort Liability,§ 10 (2001)) . "[A] state agency is

entitled to immunity from tort liability to the extent that it is performing a

governmenta}, as opposeq to a proprietary, function." Yanero, 65 S.W.3d at 519

(citillg 72 Am.Jur.2d, States, Territories and Dependendes, §104 (1974)).

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by the legislature."). Thus; the next determination is whether the legislature

has explicitly evidenced an intent to waive this immunity. Withers v. University

of Kentucky, 939 S.W.2d 340, 344 (Ky. 1997). While thejudiciary_has the sole

ability to determine whether an entity is entitled to sovereign immunity, id. at

342, only the !egislature can limit or waive that immunity once it has been

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. . . .

determined. Id. at 344 (citing Kentucky Center for the Arts v. Berns, 801.

S.W.2d 327, 329 (Ky. 1991)). We have stated that "[w]e will find waiver only

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where stated 'by the most express language or by such overwhelming ·

implications from the text as [will] leave no room for any other reasonable

construction."'. Withers, 939 S.W.2d at 346 (quoting Murray v. Wil~on Distilling

Co., 213 U.S. 151, 171 (1909)).

ln interpreting a statute,· "[w]e have a duty to accord to words of a statute

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their literal meaning unless to do so would lead to an absurd or wholly

unreasonable conclusion." Cosby v. Commonwealth, 147 S.W.3d 56, 59 (Ky.

2004) (quoting Bailey v. Reeves, 662 S.W.2d 832, 834 (Ky. 1984)). As such, we

must look first to the plain ~anguage of a statute and, if the language is clear;

our inquiry ends. See Revenue Cabin.et v. O'Daniel, 153 S.W.3d 815; 819 (Ky ..

2005). We hold fast to the rule of constructio.n that "[t]he plain meaning of the

statutory language is presumed to be what the legislature intended, and if the

meaning is plain, then the court cannot'base its interpretation on any .other

_ method or sourc·e." Id. (quoting_Ronald Benton Bro~ & Sharon Jacobs

Brown, Statutory Interpretation: The Search for Legislative Intent§ 4.2, at 38 ·

(NITA 2002)). _In other words, "we assume that the '[Legislature] meant exactly

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what it said, and said exactly what it meant."' O'Daniel, 153 S.W.3d at 819

(quoting Stone v. Pryo~, 45 s:w. 1136, 1142 (Ky. 1898) (Waddle, S. J.,

dissenting)).

Thus, we begin our inquiry with the plain language of KRS 45A.245(1).

This statute clearly intends a waiver of the defense of governmental immunity.

There is no other "reasonable construction" of the statute. The legislature

clearly stated that "the defense of governmental immunity" was not preserved

for the Commonwealth on these contract claims. The parties here do not

question that a waiver was intended by the legislature. Instead, they argue as

to the extent of this waiver.

B. Furtula v. University of Kentucky.

Iri the Furtula case, this Court specificaliy de~lined. to answer the

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question of whether KRS 45A.245 applied to a written employment contract,

instead "leaving the examination of that issue for another day, and fot a case ...

in which the resolution of that controversy would be material to our decision."

Furtula;· 438 S.W.3d at 306. Tqe bill has come due and we now must answer .

this questfort. Fortuitously, however, our learned colleague, Justice Noble,

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wrote a dissent to our opinion in which she addressed this specific question.

See id. at 310-20 (Noble, J., dissenting). We now find her reasoning as to the

extent of this waiver persuasive.

Justice Noble stated that "[t]he waiver [in KRS 45A.245(1)] is not limited

to contracts entered into under the .[KMPC]; rather, th~ waiver applies to all

lawfully authorized written contracts. This necessarily indudes contracts

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whose authority lies outside the [KMP~]." Id. at 319. KRS 45A.245 was .

formerly codified as KRS 44·.270, pnor to the adoption of the KMPC. Id. The

language of KRS 44.270(1) was almost identical to the presently codified

language of KRS 45A.245(1):

Any person,· firm or corporatiori, having entered into a lawfully

authorized written contract with the Commonwealth after June 16,

1966, may bring an action against the Commonwealth on a claim

for enforcement of contract or on a claim for breach of contract in

the Franklin Circuit Court, provided, however, ·that all available

remedies under any regulation of the contracting agency or under

any clauses in the contract shall ·first be exhausted. Any such

action s}?.all be tried by the Court sitting without a jury. All

defenses· in law or equity, except the defense of governmental

immunity, shall be preserved to the Commonwealth.

(emphasis added). Aside from the date of the contract and the requirement of

exhausting administrative remedies, the · text is lar$ely the same. Most

importantly, the waiver language in KRS 45A.245(1) remains identical to the

original codified statute in KRS 44.270(1).

Justice Noble also noted that KRS 44.270 was included in the same

~hapter that created the Board of Claims and KRS 44.270 was origi9ally

referred to as .the "Contract Claims Act." Id. at 319-20. The Court ofAppeals

interpreted that provision: to apply to employment contracts, specifically in that

case t~ a contract with U of L. Id. at 320 (citing University of Louisville v.

Martin, 574 S.W.2d 676, 679 (Ky. App. 1978). "[S]ince the [KMPC] did not'

exist, [KRS 44.270] must have applied to non.:.[KMPC] contract~." Furtula, 438

S.W.3d at 320 (Noble, J., dissenting);

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Justice Noble continued in tracing the sta,tute's hist~ry to note that,

although the statute has been reenacted multiple times since 1978, the

General Assembly· has chosen not to make any change to the language of this

waiver, even despite judicial recognition of a waiver of immunity in Martin. Id.

This strongly implies that the legislature has agreed with the interpretation of

the statute. Id. (quoting Rye v. Wea5el, .934 S.W.2d 257, 262 (Ky. 1996)). As

such, Justice Noble stated that th~ waiver of governmental immunity described

in KRS 45A.245(1) should apply to all contracts, including the contract at issue

. in Furtula. Furtula, 438 S.W.3d at 320 (Noble, J., dissenting).

C. Interpretation of KRS 44.270.

In 1963, this Court's predecessor was presented with the issue of

whether "the Department of Highways, an agency of the state, [could] defeat an

action for damages for breach of a contract by the plea of sovereign

immunity[.]" . Foley Constr. Co. v. Ward, 375 S.W.2d 392, 392 (Ky. 1963). The

Court held that "[i]n view of the constitutional provision, the sound public

policy in support of it, and the long adherence by this Court to the principle of

sovereign immunity," the agency could assert sovereign immunity in defense of

an action for breach of contract. Id. at 396. "Only by authority of an

enactment of the Legislature may such suit be brought, and then the manner

of bringing a suit and the court in which it may be brought must be directed." .

Id.

The legislature did respond. In 1966, House Bill 442 was introduced as

"an act relating to actions against the Commonwealth of Kentucky arising out

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of its contracts." The proposed Act included the same language now present in

KRS 45A.245(1): "All defenses in law or equity, except the defense of.

governmental immunity, shall be preserved to the Commonwealth." The law

was approved on March 23, 1966 and codified as KRS 44.270'. Our courts

then began the business of interpreting the provision.

In Fi.delity & Casualty Co. v. Commonwealth ex rel. Christen, this Court

specifically held "that the doctrine of sovereign immunity has no application

here, but that the right of Fidelity to maintain the action is authorized by KRS

44.,270, 'Contract Claims Act, m and we reversed with directions to enter

judgment for Fidelity. 445 S.W.2d 113, 113 (Ky. 1969). The Court stated:

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The Contract Claims Act makes it possible that a 'person, firm or

corporation'. contracting with the Commonwealth 'may bnng an

action' to require the Commonweruth to live up. to its contracturu

obligations: When the Legislature excepted 'the defense of

governmental immunity' as a defense, it waived ·governmental

immunity as it had the authority to do under section 231 of the

Constitution.

Id. at 114 .

.The judiciary continued this trend in H.E. Cummins & Sons Constr. Co. v.

Turnpike Auth; 562 S.W.2d 651 (Ky. App, 1977). "We conclude that the

Turnpike Authority is an agency of the Commonwealth and that any contract

action against the Turnpike Authofity must be brought pursuant to the

provisions of the Contract Claims Act." Id. at 653. Similarly, the Court of

Appeals stated that "one cannot sue the Commonwealth on a claim unless

sovereign immunity has been waived, as it has been on lawfully authorized

· written contracts." All-American Movers, Inc. v. Kentucky ex rel. Hancock, 552

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S.W.2d 679, 681 (Ky. App.· 1977) (citing KRS 44.270(1)). In All-American

Movers, the Court of Appeals distinguished written contracts, for w:P,ich there

had been a clear waiver of immunity, and an oral contract at issue there. Id.

In University of Louisville v. Martin, ,a teacher sued for back wages and

retirement contributions. 574 S.W.2d at 677. The Court acknowledged the

. university's immunity status and that·the immunity "extends to.both actions in

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tort and contract." Id. at 677. The Court specifically stated that proper course

for the claim at issue was through KRS 44.260 et seq. Id. at 679. "In

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. prescribing thi~jprocedure, the legislature was acting up9.et [Kentucky

Constitution Section] 231, which authorizes the General Assembly to direct the

manner[,] and in what courts[,] suits may be brought against the

Commonwealth." Id. Such a waiver is "a matter of grace[;]· such a remedy may

be granted, withdrawn or restricted at the will ofthe legislature." Id. (citing

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Un~v'?rsity of Kentucky v. Guynn, 372 S.W.2d 414 {Ky. 1963)),

In 1978, what became known as the KMPC was introduced and codified

as KRS Chapter 45A .. It became effective in January of 1979. At that time, ,

KRS 44.270 was "[r]epealed and reenacted ~s KRS 45A.245, effective January

1, 1979." KRS 44.270.

D. KRS ·45A.245 waives immunity as to all claims arising from written

· contracts with the Commonwealth.

Based on the. plain language of the· statute and our prior interpretation of

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KRS 44.270, we now hold that KRS 45A.245(1) waives the defense of

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governmental immunity in all claims. based upon lawfully authorized Written_

contracts. 2

The Plain Language of KRS 45A.245 waives immunity for contract claims.

The language of this statute is clear. We deem no necessity to begin

parsing out the types of contracts the legislature envisioned when creating this

particular statute. Instead, we look to the plain language of the statute:·"Any

person, firm or corporation, having a lawfully authorized written contract with

the Commonwealth ..·. may bring· an action against the Commonwealth on the

contract ... All defenses in law or equity, except the defense of governmental

immunity, shall be preserved to the Commonwealth." KRS 45A.245(1). Once.

again, we reiterate that "we assume that the '[Legislature] meant exactly what it

· said, and said exactly what it meant."' O'Daniel, -153 S.W'.3d at 819 .(quoting

Pryor, 45 S.W. at 1142 (Waddle, S. J., dissenting)). The legislature chose to

utilize this language, without restriction or limitation. There is no reason for

2We also note that, although our Court has declined to specifically hold that

this waiver exists before today, our Court has contemplated and agteed with that

holding in dicta of pr:i,or decisions: ·

Suit cannot be instituted against the Commonwealth on a

claim· unless sovereign immunity has been specifically

waived~ as it has been on a lawfully authorized contract ...

KRS 45A.245(1) provides that any person having a lawfully

authorized written contract with the Commonwealth may

·bring an action agaillst the Commonwealth on the contract

Commonwealth v. Whitworth,' 74 S.W.3d 695, 700 (Ky. 2002) (internal citations

omitted) .. This case was also relied upon by the Western District of Kentucky: "Here,.

while the state has waived its immunity for claims pertaining to. written contracts, it

has done so only for actions brought in Franklin. County, Kentucky, Circuit Court ...

the state's waiver of sovereign immunity ... applies only to claims premis~d on written

contracts." Campbell v. University of Louisville,· 862 ·F.Supp.2d 578, 58S (W.D. Ky.

2012) (citing KRS 45A.245(1) and Whitworth, 74 S.W.3d at 699-700).

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us, therefore, to jmpose a constraint unintended or unexpressed by the

General Assembly. Clearly, the legislature has waived governmental immunity

on all claims brought by all persons on all ~awfully authorized written contracts

with the Commonwealth.

The Reenactment Doctrine requires our holding here today.

We discern no reason to treat KRS 45A.245 any differently than its

legislative predecessor, KRS 44.270. In fact, under the reenactment:doctrine,

we should interpret this provision in the same manner. "[W]hen a statute has

been construed by a court of.last resort and the statute is substantially

reenacted, the Legislature may be regarded· as adopting·such construction."

Benningfield ex rel. Benningfield v. Zinsmeister, 3~7 S.W.3d)561, 564 (Ky. 2012)

(quoting Hughes v. Commonwealth, 87 S.W.3d 850, 855 (Ky. 2902) (quoting

Commonwealth v. Trousdale, 181 S.W.2d 254, 256 (Ky. 1944))). "[T]he failure of·

the legislature to change a known judicial interpretation ofa statute [is]

extremely persuasive evidence of the true legislative intent. There is a strong

i~plication that the legislature agrees with a prior court interpretation when it

does not amend the statute interpreted." Benningfield, 367 S.W.3d at 564

(quoting Rye, 934 S.W.2d at 262).

As we have outlined, this Court has interpreted KRS 44.270 as a waiver

.. of the defense of governmental immunity to all claims based. upon lawfully

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authorized written contracts with the Commonwealth, specifically induding

written employment contracts within this waiver. The legislature has chosen

not to_ act in contravention of the Court's prior rulings regarding the

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predecessor statute and we deem this as indicative of the legislature's intent .

. T4is interpretation comports with the clear, unequivocal language of the

statute; the General Assembly has specifically chosen to waive the defense of

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. governmental immunio/ in all cases based upon written contracts with the

Comrrionwealth.

IV. CONCLUSION.

We decline at this time to decide whether public universities must abide

by the remaining provisions of the KMPC in hiring professors. Instead, we

simply hold that this waiver of immunity applies to all claims based· upon ·

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"lawfully authorized written contract[s]" with the Commonwealth. We believe

this is a simple, reasonable, and straightforward interpretation of the statute at

issue. To hold otherwise would be to contravene the clear intent of the ·General

Assembly. For the foregoing reasons, we affirm the Court of Appeals and

remand to the Franklin Circuit Court for further proceedings:

Minton, C.J.; Cunningham, Keller, VanMeter, Venters and Wright, JJ.,

concur. Hughes, J. not sitting.

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:

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