Jane Doe v. v. Louisville Metro Police Department ( 2021 )

RENDERED: NOVEMBER 12, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0210-MR
JANE DOE V APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
v. HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 18-CI-001087
LOUISVILLE METRO POLICE
DEPARTMENT AND LOUISVILLE
JEFFERSON COUNTY METRO
GOVERNMENT APPELLEES
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT, McNEILL, AND TAYLOR, JUDGES.
LAMBERT, JUDGE: Jane Doe V has appealed from the January 17, 2019, order
granting a motion to dismiss by Louisville Metro Police Department (“LMPD”)
and Louisville Jefferson County Metro Government (“Louisville Metro”)
(collectively, “Metro”) on immunity grounds.1 We affirm.
The underlying action is one of several filed by different women
seeking damages against Metro as well as former LMPD officer Pablo Cano,
individually and in his official capacity, as a result of allegations that Cano had
sexually abused or raped them while in a position of authority. In her complaint,
filed on February 21, 2018, Jane Doe V alleged that she had been sexually abused
and/or raped by Cano in November and/or December 2015, while he was
employed by Metro. By his engaging in rape and sexual misconduct, she alleged
that Cano had committed the intentional torts of assault and battery, as well as the
intentional infliction of emotional distress. Jane Doe V alleged that Cano was
liable under Kentucky Revised Statutes (KRS) 413.2485 and 510.040(1)(a) as was
Metro, as Cano was its employee. She alleged that Metro had a duty to properly
supervise its employees to prevent rape and sexual abuse by officers and to charge
them with crimes, and that the offenses resulted from Metro’s failure to employ
qualified people for positions of authority, to properly train and supervise their
conduct, and to promulgate appropriate operating policies and procedures to
protect citizens. Accordingly, Jane Doe V alleged liability on Metro’s part for its
1
This panel is also considering the appeals in Gaeta v. Louisville Metro Police Department and
Louisville Jefferson County Metro Government, Appeal No. 2019-CA-1810-MR, and Jane Doe
v. Louisville/Jefferson County Metro Government, Appeal No. 2020-CA-0060-MR.
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negligent hiring, training, and supervision of Cano. She sought compensatory and
punitive damages from Cano and Metro.
Shortly after the complaint was filed, Metro moved to be dismissed
from the action for failure to state a claim pursuant to Kentucky Rules of Civil
Procedure (CR) 12.02(f), on the basis of sovereign immunity for Louisville Metro
and because LMPD was not an entity capable of being sued as the proper party was
Louisville Metro. A consolidated response for the Jane Doe plaintiffs indicated
that they (the plaintiffs) had requested a declaration of rights by the court pursuant
to KRS 418.040 regarding whether Metro had a statutory obligation to indemnify
Cano for any settlement or judgment. They also raised an issue as to the
application of the Claims Against Local Governments Act (“CALGA”), KRS
65.200 et seq. In reply, Metro maintained that it had sovereign immunity and that
the Jane Doe plaintiffs did not have standing to raise the indemnification issue as
Cano was the recipient of protection from CALGA, not the plaintiffs.
Metro renewed its motion to dismiss in the present action in October
2018, and it included a supplemental memorandum with more information about
the posture of the pending cases. It again argued that LMPD was not a proper
party to the lawsuit and that the claims against Louisville Metro were barred by the
doctrine of sovereign immunity. Jane Doe V continued to argue that genuine
issues of material fact remained to be decided, that a declaration of a party’s rights
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was not barred by sovereign immunity, and that Metro’s obligation under CALGA
was an issue for the court to determine. In reply, Metro pointed out that Jane Doe
V had not sought a declaration of rights in her complaint.
The circuit court entered an opinion and order on January 17, 2019,
granting Metro’s motion to dismiss. The court summarized the parties’ respective
positions as follows:
Louisville Metro and LMPD filed the immediate
motion arguing this action must be dismissed because the
prior enjoys sovereign immunity and the latter is not an
entity subject to suit. Jane Doe V responded, arguing
immunity does not apply, and if it did, [CALGA], KRS
625.200 et seq. prevents dismissal because (1) she asks
for a declaration that Louisville Metro must indemnify
and pay damages for Mr. Cano if a jury awards damages
and (2) [CALGA] abrogates sovereign immunity in this
instance.
The court held that Louisville Metro was entitled to sovereign immunity in this
case, citing Schwindel v Meade County, 113 S.W.3d 159, 163 (Ky. 2003), and
Louisville/Jefferson County Metro Government v. Cowan, 508 S.W.3d 107, 109
(Ky. App. 2016), and that sovereign immunity extended to allegations of vicarious
liability for intentional torts. As to the application of CALGA, the court relied
upon the Schwindel Court’s analysis and conclusion that CALGA’s passage did not
change the immunity status of counties and expose them to tort liability. The court
then held that LMPD enjoyed governmental immunity because it was an agency of
Louisville Metro, which was immune from suit. Finally, the court held that Jane
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Doe V did not have standing to seek a declaration that Louisville Metro must
indemnify Cano for any judgment in her favor as CALGA’s provisions address the
relationship between the public employee and the governmental employer. Any
benefit to Jane Doe V, such as the payment of damages, was incidental to
CALGA’s benefit to a qualifying employee. This appeal now follows. 2
On appeal, Jane Doe V contends that the circuit court improperly
ruled on a standing issue that was not before it and that it incorrectly ruled that
CALGA did not apply. Metro, on the other hand, argues that the only issue before
this Court is whether the circuit court properly held that Louisville Metro and
LMPD were entitled to a dismissal of Jane Doe V’s direct liability claims on the
basis of sovereign immunity.
Before we reach the merits of the appeal, we must address Metro’s
motion to strike Jane Doe V’s brief and dismiss her appeal, which was passed to
the merits panel. In the motion, Metro argues 1) that the two issues Jane Doe V
raised in her brief were not preserved by listing them in her prehearing statement,
see CR 76.03(8), and that the issues she did raise were not related to sovereign
immunity, which was the basis of the circuit court’s ruling; 2) that she failed to
2
The same day, the court ruled on a motion by Cano for summary judgment, granting it in part
and denying it in part. Jane Doe V attempted to seek review of this order in the present appeal.
However, that order was interlocutory, and, based on her response to a show cause order, this
Court limited the present appeal to the order dismissing the claims against Metro.
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include a statement at the beginning of each argument showing where and how the
issue was preserved for review pursuant to CR 76.12(4)(c)(v); and 3) that she
included references in her brief to information that is not part of the appellate
record in this case, specifically references to the outcome of Cano’s criminal
charges and the filing of the declaratory action by Louisville Metro against Cano.
Jane Doe V did not file a response to the motion. She did, however, respond to the
issues the motion, as well as Metro’s appellee brief, raised in her reply brief.
Based upon her response, we decline to strike Jane Doe V’s brief and note that our
resolution of the appeal is not affected by her references to the extraneous
information. We shall rule on this motion by separate order entered this day.
Our standard of review of an order granting a motion to dismiss for
failure to state a claim upon which relief may be granted pursuant to CR 12.02(f) is
set forth in Benningfield v. Pettit Environmental, Inc., 183 S.W.3d 567, 570 (Ky.
App. 2005):
A motion to dismiss should only be granted if “it appears
the pleading party would not be entitled to relief under
any set of facts which could be proved in support of his
claim.” Pari-Mutuel Clerks’ Union v. Kentucky Jockey
Club, 551 S.W.2d 801, 803 (Ky. 1977). When ruling on
the motion, the allegations in “the pleadings should be
liberally construed in a light most favorable to the
plaintiff and all allegations taken in the complaint to be
true.” Gall v. Scroggy, 725 S.W.2d 867, 868 (Ky. App.
1987). In making this decision, the trial court is not
required to make any factual findings. James v. Wilson,
95 S.W.3d 875, 884 (Ky. App. 2002). Therefore, “the
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question is purely a matter of law.” Id. Accordingly, the
trial court’s decision will be reviewed de novo. Revenue
Cabinet v. Hubbard, 37 S.W.3d 717, 719 (Ky. 2000).
With this standard in mind, we shall review Jane Doe V’s arguments.
For her first argument, Jane Doe V argues that the circuit court
incorrectly ruled on a standing issue that was not before it. This portion of the
circuit court’s opinion and order addressed the conclusion that Jane Doe V did not
have standing to move for a declaration in this suit that Metro must indemnify
Cano pursuant to CALGA if the court entered a judgment in her favor. We
disagree that this issue was not before the circuit court as it was raised in pleadings
below based upon Jane Doe V’s argument that the application of CALGA defeats
an assertion of sovereign immunity.
As set forth in KRS 65.2005, CALGA provides:
(1) A local government shall provide for the defense of
any employee by an attorney chosen by the local
government in any action in tort arising out of an act
or omission occurring within the scope of his
employment of which it has been given notice
pursuant to subsection (2) of this section. The local
government shall pay any judgment based thereon or
any compromise or settlement of the action except as
provided in subsection (3) of this section and except
that a local government’s responsibility under this
section to indemnify an employee shall be subject to
the limitations contained in KRS 65.2002.
(2) Upon receiving service of a summons and complaint
in any action in tort brought against him, an employee
shall, within ten (10) days of receipt of service, give
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written notice of such action in tort to the executive
authority of the local government.
(3) A local government may refuse to pay a judgment or
settlement in any action against an employee, or if a
local government pays any claim or judgment against
any employee pursuant to subsection (1) of this
section, it may recover from such employee the
amount of such payment and the costs to defend if:
(a) The employee acted or failed to act
because of fraud, malice, or corruption;
(b) The action was outside the actual or
apparent scope of his employment;
(c) The employee willfully failed or refused
to assist the defense of the cause of
action, including the failure to give
notice to the executive authority of the
local government pursuant to subsection
(2) of this section;
(d) The employee compromised or settled
the claim without the approval of the
governing body of the local government;
or
(e) The employee obtained private counsel
without the consent of the local
government, in which case, the local
government may also refuse to pay any
legal fees incurred by the employee.
The Supreme Court addressed CALGA in Richardson v. Louisville/Jefferson
County Metro Government, 260 S.W.3d 777, 781 (Ky. 2008), explaining:
CALGA was enacted in part to shield public
employees from the personal expense incurred in the
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defense of tort claims. The protections afforded by
CALGA allow public employees to diligently and
faithfully serve the Commonwealth without worrying
about the financial burdens and other adverse
consequences of civil litigation, which may stem from
their civil service.
(Citations omitted.) We agree with the circuit court that CALGA addresses the
relationship between public employees and their governmental employer and that
any benefit to a plaintiff, such as the payment of damages to Jane Doe V, is merely
incidental. As such, there could be no controversy between Jane Doe V and Metro
because she did not have an actionable right. Therefore, we find no error in the
circuit court’s legal ruling that Jane Doe V did not have standing to seek a
declaration that Metro must indemnify Cano under CALGA.
Next, Jane Doe V argues that the circuit court should have ruled on
whether her case fell under the class of cases to which CALGA applies, including
whether Cano was acting under color of law that would give rise to an action under
42 United States Code (U.S.C.) § 1983 when he committed the assaults. This has
nothing to do with whether Metro was entitled to sovereign immunity in this case.
It is well-settled in Kentucky that “[a] county government is cloaked
with sovereign immunity. Nor can a county, absent a legislative waiver of
immunity, be held vicariously liable in a judicial court for the ministerial acts of its
agents, servants, and employees.” Schwindel, 113 S.W.3d at 163 (citations
omitted). Here, there is no question that Louisville Metro is a county government
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and that LMPD is one of its agencies. Therefore, both are entitled to immunity as
to Jane Doe V’s direct liability claims against these governmental entities. See
Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 99
(Ky. 2009). Whether Cano is entitled to indemnification for any damages Jane
Doe V might be awarded has nothing to do with whether these entities are entitled
to immunity in this instance. See Schwindel, 113 S.W.3d at 163 (“[T]he legislative
intent was not to waive any immunity enjoyed by any local government but to
specify what damages could be obtained against local governments that are subject
to common law judgments and what obligation a local government has to provide a
defense for and pay judgments rendered against its employees for the tortious
performance of their ministerial duties.”). The circuit court did not commit any
error in holding that the doctrine of sovereign immunity applies to Metro in this
case.
For the foregoing reasons, the opinion and order of the Jefferson
Circuit Court dismissing Jane Doe V’s claims against Louisville Metro and LMPD
is affirmed.
ALL CONCUR.
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BRIEFS FOR APPELLANT: BRIEF FOR APPELLEES:
Shannon Fauver Michael J. O’Connell
Louisville, Kentucky Louisville, Kentucky
John E. Spainhour Brendan R. Daugherty
Shepherdsville, Kentucky Louisville, Kentucky
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