Current through Register Vol. 51, No. 3, September 1, 2024
RELATES TO: KRS 12.027, 49.020, 49.040, 49.090, 49.120, EO
2020-708
NECESSITY, FUNCTION, AND CONFORMITY: Executive Order 2020-708
("Order") requires that the Kentucky Claims Commission be abolished and that
the Board of Claims, and the Office of Claims and Appeals be established. The
Order also sets forth the powers and duties of the Board of Claims and the
Office of Claims and Appeals and authorizes the board to promulgate emergency
regulations necessary to carry out the provisions and purposes of the Order and
the board's statutory authority. KRS 49.020(5) authorizes the board to
promulgate administrative regulations that are necessary to carry out the
provisions and purposes of the board's statutory authority. KRS 49.220(1)
authorizes the board, with exclusive jurisdiction, to investigate, hear proof,
and to compensate persons for damages sustained to either person or property as
a proximate result of negligence on the part of the Commonwealth, any of its
cabinets, departments, bureaus, or agencies, or any of its officers, agents, or
employees while acting within the scope of their employment by the Commonwealth
or any of its cabinets, departments, bureaus, or agencies. This administrative
regulation establishes the procedures governing these claims.
Section 1. Definition.
(1) "Board" means the Board of
Claims.
(2) "Office" means the
Office of Claims and Appeals.
Section
2. Filing Claims. Form and content. A claim shall be legibly
written, typed, or printed and contain:
(1)
The name, address, telephone number, and email address of the
claimant;
(2) The amount of the
claim; and
(3) A statement of the
facts that:
(a) Show the claimant may be
entitled to relief pursuant to KRS 49.010 through 49.180; and
(b) Enables the agency against which a claim
is made to investigate the claim and prepare its defense; and
(4) The signature of the claimant
and counsel for claimant, if any.
Section 3. Rules Applicable to All Filings.
(1) Filings. All documents may be filed:
(a) In person or by private delivery to the
Board of Claims, 500 Mero Street, 2 SC1, Frankfort, Kentucky 40601;
(b) By mail to the address listed above;
or
(c) By electronic mail to
mailto:negligenceclaims@ky.gov, if the document can be sent in one (1)
electronic message.
(2)
Service.
(a) Any party who files a pleading or
motion with the board or hearing officer shall notify all other parties to the
claim by serving upon each party a copy of the pleading or motion filed. A
filed pleading or motion shall be accompanied by a certification stating:
1. That a copy has been served on each party,
or if the party is represented by counsel, on the party's counsel;
and
2. The method of service
used.
(b) Service upon a
party shall be made by delivering a copy to the attorney or party, electronic
mail, or by mailing it to the attorney or party at the last known address.
Service is complete upon mailing, unless the serving party learns or has reason
to know that it did not reach the person to be served. Service by electronic
mail shall be considered complete when sent if properly addressed. Documents
filed by electronic mail shall be considered received when sent if properly
addressed.
(3) Extension
of time. An extension of time to file a response, motion, other pleading,
brief, proposed finding of fact, or conclusion of law shall be granted:
(a) On agreement of the parties; or
(b) Upon a showing of good cause.
Section 4.
Representation in Proceedings before the Board.
(1) If the claim is by an individual, the
individual may proceed without an attorney or engage counsel to provide
representation.
(2) An individual
who is not an attorney shall not be permitted to represent any other individual
or legal entity who is a party to the claim.
(3) In accordance with Supreme Court Rule
3.020, if the claimant is a corporation, joint venture, partnership, LLC,
estate, or any entity other than an individual as identified in subsection (1),
the entity shall be represented by an attorney on all matters before the board,
including filing the claim.
(4) An
attorney admitted to practice in another state, but not the Commonwealth of
Kentucky, shall be permitted to represent a party before the board if the
attorney complies with Supreme Court Rule 3.030(2).
(5) If an attorney is not identified in the
claim form or is later retained to represent a claimant after the filing of the
claim form, the attorney shall enter an appearance in the record within ten
(10) days of being retained.
Section
5. Response to Claims.
(1) Upon
receipt of a completed claim, the board shall submit a copy of each claim to
the head of the agency against which the claim is filed, or the attorney
representing the agency against which the claim is filed.
(2) The agency against which a claim has been
filed shall respond to the board and the claimant within thirty (30) days of
receiving the claim.
(3) If the
agency against which a claim is filed admits liability in its response, a final
order shall be entered.
Section
6. Claims Not Requiring a Hearing Under KRS 49.090(3).
(1) If the agency against which a claim is
filed fails to respond within thirty (30) days, the board or a board member
assigned by the chair shall:
(a) Enter a show
cause order;
(b) Recommend an order
of dismissal; or
(c) Deem the facts
contained in the claim admitted and render an award.
(2) If the response filed by the agency
denies negligence in a claim not requiring a hearing pursuant to KRS 49.090(3),
the board or board member shall decide the claim and render a
decision.
(3) Within fourteen (14)
days of the decision, any party may request a full board review by written
notice to the board.
Section
7. Claims Requiring a Hearing under KRS 49.090.(1) .
(1) If the agency fails to respond within
thirty (30) days, the board shall issue a show cause order or the matter shall
be assigned to a hearing officer.
(2) If the response filed by the agency
denies negligence in a claim requiring a hearing pursuant to KRS 49.090(3), a
hearing officer shall be assigned, and notice of the assignment shall be
provided to the parties.
Section
8. Prehearing or Status Conference and Hearing Schedule.
(1) The hearing officer shall schedule a
prehearing or status conference, which may be conducted by telephone or other
electronic means:
(a) Within thirty (30) days
of the assignment of the claim; and
(b) Upon reasonable notice to all parties,
which consists of prior notice of not less than five (5) days, unless agreed to
otherwise by the parties.
(2) The hearing officer may convene the
prehearing or status conference or order the affected state agency to convene
the conference.
(3) A prehearing or
status conference may be used to discuss jurisdictional matters, settlement
possibilities, discovery, preparation of stipulations, clarification of issues,
rulings on witnesses, taking of evidence, issuance of subpoenas, mediation, and
other matters that will promote the orderly and prompt conduct of the
hearing.
(4) The hearing officer
and the parties shall set an agreed date for the hearing at the prehearing or
status conference. If the hearing officer and parties cannot agree upon a
hearing date, the hearing officer shall set the matter for hearing no later
than six (6) months from the date of the conference, unless the parties have
otherwise agreed to hold the claim in abeyance.
(5) Upon conclusion of the prehearing or
status conference, the hearing officer shall issue an order including all
matters determined at the prehearing or status conference.
(6) The hearing officer shall notify the
board of the date and time for the hearing. The office shall:
(a) Reserve a place within the proper venue
to conduct the hearing;
(b) Select
a court reporter to be present at the hearing to record the proceedings;
and
(c) Notify the parties and the
court reporter of the date, time, and place of the hearing.
Section 9. Motion
Practice.
(1) Any party may file a
motion.
(2) Any party affected by a
motion or pleading may file a response to the motion or pleading within thirty
(30) days from the date on which the motion or pleading was served.
(3) A moving party may file a reply to
another party's response. The reply shall be filed within fifteen (15) days
from the date the response was served. Other replies or responses shall not be
filed, unless prior approval is granted by the board or hearing
officer.
(4) If a response is not
filed within thirty (30) days, the board or hearing officer shall issue an
order on the motion within sixty (60) days of the date the response was
due.
Section 10.
Discovery.
(1) Discovery may be obtained
without prior order of the board or hearing officer. Except to the extent the
provisions of this Section differ, the Kentucky Rules of Civil Procedure (CR)
governing depositions and discovery shall apply.
(2) In addition to the provisions of CR 26
addressing opinions and use of expert witnesses:
(a) Absent a stipulation between the parties
or an order issued by the board providing otherwise, and at least ninety (90)
days before the date set for the hearing, a party shall disclose to the other
party or parties the identity of any witness qualified as an expert by
knowledge, skill, experience, training, or education the party may use at the
hearing to provide expert testimony; or
(b) If the evidence is intended solely to
contradict or rebut evidence on the same subject matter of a witness identified
by another party, within thirty (30) days after the other party's
disclosure.
(3) The
board or hearing officer may deny, limit, or require discovery.
(4) If a party fails to comply with an order
regarding discovery, the board or hearing officer may order that the:
(a) Matters that the requesting party was
seeking to establish through discovery shall be taken as having been
established for the purposes of the hearing;
(b) Noncomplying party shall be prohibited
from introducing related documents or testimony at the hearing;
(c) Claim be dismissed or relief be granted
as requested by the opposing party;
(d) Claim be stayed until the order is
obeyed; or
(e) Noncomplying party,
the advising attorney, or both pay the reasonable costs, including attorney's
fees, caused by the failure to comply.
(5) A response to discovery under subsection
(1) of this section shall not be filed with the board unless required by order
of the board or hearing officer.
Section 11. Briefs. A party shall file with
the board or hearing officer any brief required by order of the board or
hearing officer. The board or hearing officer may require a party to file a
post-hearing brief or to supplement at any time a brief already filed to assist
in adjudicating the hearing. A brief shall include the signature of the party,
or the party's counsel.
Section 12.
Summary Disposition. At any time after the commencement of the claim, a party
may move for a summary disposition of the whole or a part of the claim by
filing a motion that:
(1) Asserts that there
are no disputed material facts as to one (1) or more of the issues before the
board or hearing officer;
(2)
Includes a statement specifying which material facts are undisputed. Assertions
of a material undisputed fact or facts may be submitted to the board or hearing
officer through affidavits or responses made by another party to any discovery
request, including answers to interrogatories, admissions, and depositions.
Facts stated in the claim, including exhibits, may be relied upon as undisputed
material facts by the appellee; and
(3) States that any issue before the board or
hearing officer for which summary disposition is sought is a matter of legal,
and not factual, interpretation.
(4) Within twenty (20) days after a party
moves for summary disposition, any other party may file a response presenting
the party's position on issues of law and fact, which shall include any
affidavit, written response to discovery requests, deposition testimony, or
statements in the claim, demonstrating the party's assertion that a material
fact or facts are disputed.
(5) If
the nonmoving party files a response to the motion for summary disposition, the
moving party shall have ten (10) days to file a reply to the
response.
(6) The board or hearing
officer may grant a motion for summary disposition in whole or in part. If the
board or hearing officer grants a summary disposition as to one (1) or more
issues, but not all issues, then the remaining issues shall be heard by the
board or hearing officer in accordance with this administrative regulation and
KRS Chapter 13B.
Section
13. Conduct of Hearing. Except as otherwise established in KRS
Chapter 49 or this administrative regulation, the conduct of hearings shall be
governed by the procedures established in KRS Chapter 13B.
Section 14. Board Decision.
(1)
(a)
Each contested claim shall be submitted to the board at its next meeting
following the submission of the recommended order, except for Agreed
Orders.
(b) The board shall issue
its final order in accordance with KRS 49.080.
(c) The stated deadlines within which the
board shall render a final order shall commence upon the last filing of any
exceptions to the recommendation.
(2) The board, or a majority of its members,
shall render a decision on each contested claim requiring a hearing pursuant to
KRS 49.090(3) and each request for a full board review of a claim decided by an
individual member.
(3) In rendering
the final order, the board shall consider the record including the recommended
order and any exceptions duly filed to the recommended order.
(4) The board may accept the recommended
order of the hearing officer and adopt it as the final order of the board, or
it may reject or modify, in whole or in part, the recommended order, or it may
remand the matter, in whole or in part, to the hearing officer for further
proceedings as appropriate.
(5) If
the final order differs from the recommended order, it shall include separate
statements of findings of fact and conclusions of law. The final order shall
also include the date the board rendered the order, the date it was served on
the parties, and to whom it was served, and a statement advising the parties
fully of available appeal rights.
(6) Unless waived by the party, a copy of the
final order shall be transmitted to each party or to his attorney of
record.
(7) The matter shall be
deemed finally adjudicated if:
(a) In a claim
under $2,500, no full board review has been requested; or
(b) The claim has been the subject of full
board review; or
(c) No judicial
appeal has been filed.
Section 15. Payment of Awards. Within thirty
(30) days after an order of the Board of Claims making an award has become
final, the agency making payment of the award shall furnish to the Board of
Claims a copy of any check reflecting the payments.
STATUTORY AUTHORITY: KRS 49.020(5)
