Furtula v. University of Kentucky

438 S.W.3d 303, 38 I.E.R. Cas. (BNA) 1008, 2014 WL 2773028, 2014 Ky. LEXIS 225

• Court: Kentucky Supreme Court
• Decided: June 19, 2014
• Docket: No. 2011-SC-000332-DG
• Status: Published

Opinions

Opinion of the Court by

Justice VENTERS.

In this opinion, we review an opinion of the Court of Appeals holding that the Uni-versify of Kentucky is shielded by the doctrine of governmental immunity from the claims of employees who assert that the University breached contractual obligations to provide them with benefits under a long-term disability compensation program adopted by the University.

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 by the legislature.¹ Included within the provisions of KRS Chapter 45A, the Kentucky Model Procurement Code, is KRS 45A.245, by which the General Assembly has explicitly waived the defense of “governmental immunity” for claims based upon “lawfully authorized written contracts with the Commonwealth.”² The employees cite this provision as the sole statutory authority supporting their position that the legislature has expressly waived sovereign immunity in situations involving written contracts between state universities and their employees. Consequently, we must determine whether the employee handbook, personnel policies, and related documents of the University of Kentucky establishing a long-term disability compensation program for its employees constitute a “written contract,” and, if so, whether they are “written contracts” that fall within the waiver of governmental immunity set forth in KRS 45A.245.

For the reasons explained below, we conclude that the Appellants did not have a “written contract” with their university employer concerning the long-term disability compensation program. Accordingly, we affirm the decision of the Court of Appeals in dismissing Appellants’ claims on the basis of governmental immunity.

Our conclusion that Appellants’ claims are not based upon a written contract -with their university employer makes it unnecessary for us to address the scope of KRS 45A.245 in detail.³ We therefore decline to do so, leaving the examination of that issue for another day, and for a case, unlike this one, in which the resolution of that controversy would be material to our decision.

I. FACTUAL AND PROCEDURAL BACKGROUND

We begin our discussion by briefly summarizing the employment claims asserted by the Appellants, and the relevant employment documents upon which they rely in support of their claims to disability benefits.

Appellants Vera Furtula and Anthony Miller were employed for several years by the University of Kentucky. During the time of their employment, the University provided, at no cost to the employee, a self-funded, long-term disability (LTD) benefits program for its regular full-time employees. The program consisted of two complementary plans: (1) the University of Kentucky Initial Salary Continuation Long-Term Disability Plan (“Salary Continuation Plan”); and (2) the University of Kentucky Long-Term Disability Plan (“LTD Plan”).

The LTD program is governed by three sets of documents: an employee handbook titled “Staff Handbook”; Human Resources Policies and Procedures (HRP & P) Sections 90.0 and 95.0; and documents adopted by the Board of Trustees that create and govern the programs. The handbook is provided to employees who sign an acknowledgement of having received it. As stated in the University’s HRP & P, the “LTD program is intended to make monetary benefits available to an employee in the event of long term total disability.”

The Salary Continuation Plan and the Long-Term Disability Plan each provide that “[a participating employee] who becomes totally disabled as a result of accidental bodily injury or sickness ... shall be entitled to [the payments specified by the respective plan.]” Independently of each other, both Furtula and Miller applied for disability benefits, each claiming to have become totally disabled while working at the University. In each case, the University denied the claim after concluding that Furtula and Miller were not “totally disabled.”

Following the rejection of their claims, Furtula and Miller each filed suit in the Fayette Circuit Court against the University alleging that, by rejecting their applications for disability benefits, the University breached a written contract consisting of the Staff Handbook and the associated personnel policy documents that define the disability compensation programs.

In Furtula’s case, the University moved for summary judgment, arguing that it was entitled to sovereign immunity because it had no contract with Furtula, and that even if the disability program could be construed as a contract, the action on it was barred because it was not in writing. The Fayette Circuit Court denied the University’s motion for summary judgment, concluding that there existed “a material issue of fact with regard to whether there has been a waiver of sovereign immunity for this breach of contract claim by the state legislature pursuant to KRS Chapter 45A [the Kentucky Model Procurement Code].” However, based upon the requirement of KRS 45A.245 that actions brought pursuant to the Model Procurement Code “shall be brought in the Franklin Circuit Court,” the Fayette Circuit Court also transferred the case to the Franklin Circuit Court.⁴ Before the transfer could be completed, the University filed an interlocutory appeal from the order denying immunity as allowed by Breathitt County Board of Education v. Prater, 292 S.W.3d 883, 887 (Ky.2009).

In Miller’s case, the University moved to dismiss on grounds of improper venue and sovereign immunity. The Fayette Circuit Court denied the motion and transferred the case to Franklin Circuit Court pursuant to KRS 45A.245. The Franklin Circuit Court denied the University’s motion to dismiss Miller’s claim on the grounds of sovereign immunity, though the basis for the decision is unclear. Again invoking Prater, the University appealed the rejection of its claim of sovereign immunity.

The Court of Appeals addressed the Furtula and Miller cases together and reversed both circuit court decisions. The court held that the documents establishing the University of Kentucky’s employee disability compensation did not create an implied contract under Parts Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky.2005). Specifically, the Court of Appeals held that “none of the plan documents provided to this Court evidence [the] intent to create a contract on the part of the University.”⁵ The Court also noted that, unlike the relevant documents in Parts Depot, which used specific and unequivocal contractual language, rather than precatory language, the University documents cited by Furtula and Miller as the basis of their contract claim were replete with precatory language and express contractual disclaimers to the effect that the relevant documents specifically were not intended to form a contract. After noting that the University was a state agency entitled to sovereign immunity from suit absent a legislative waiver, the Court of Appeals held that even if the documents gave rise to an implied contract, the claims would not be allowed because the state’s immunity was waived under KRS 45A.245 only for written contracts. And, while the Court of Appeals did not explicitly say so, implicit in its holding is the recognition that an implied contract is not a written contract.

We granted discretionary review to address whether the various documents in this case gave rise to a written contract that fits within the legislative waiver of sovereign immunity provided within the Model Procurement Code.

II. FURTULA AND MILLER DO NOT HAVE AN IMPLIED CONTRACT FOR THE UNIVERSITY OF KENTUCKY’S EMPLOYEE DISABILITY COMPENSATION PLANS

Fundamental to our review of a contractual claim premised upon an employee handbook is our holding in Parts Depot, 170 S.W.3d at 354. In that case, we considered whether a contractual obligation could be. implied, thus vesting the employee with an equitable contract claim for the employer’s failure to follow certain wage provisions contained in the employer’s personnel policies. We held that “[o]nce an employer establishes an express personnel policy and the employee continues to work while the policy remains in effect, the policy is deemed an implied contract for so long as it remains in effect. If the employer unilaterally changes the policy, the terms of the implied contract are also thereby changed.” Id. at 363.

Basic contract law provides that, as in the case of an express contract, an implied contract⁶ requires the agreement of the promisor to be bound.⁷

[A] contract may be inferred wholly or partly from such conduct as justifies the promisee in understanding that the promisor intended to make a promise. To constitute such a contract there must, of course, be a mutual assent by the parties — a meeting of minds — and also an intentional manifestation of such assent. Such manifestation may consist wholly or partly of acts, other than written or spoken words.

Kellum v. Browning’s Adm’r, 231 Ky. 308, 21 S.W.2d 459, 463 (1929) (emphasis added). Similarly, upon application of these principles in Johnson’s Adm’r v. Johnson, 244 S.W.2d 969, 972 (Ky.1951) we stated:

The conditions and circumstances were not such as ... show a mutual intention to contract. There is no disclosure of facts from which it may be inferred there was a meeting of minds or an expectation that one party would receive payment for the services rendered and the other would pay for services accepted. This is what we call a contract implied in fact.

With respect to conduct as a manifestation of contractual intent, the Restatement (Second) of Contracts § 19(2) (1981) provides: “The conduct of a party is not effective as a manifestation of his assent unless he intends to engage in the conduct and knows or has reason to know that the other party may infer from his conduct that he assents.” Likewise, the Restatement (Second) of Contracts § 26 reflects the conventional contract principle that “[a] manifestation of willingness to enter into a bargain is not an offer if the person to whom it is addressed knows or has reason to know that the person making it does not intend to conclude a bargain until he has made a further manifestation of assent.” (emphasis added).

In other words, when the recipient of a statement is informed that the maker of the statement does not intend to enter into a contract, as occurred in this case with the University’s clear statement that the handbook was not a contract, the formation of a contract will not be implied.

The University of Kentucky’s Staff Handbook, one of the documents relied upon by Appellants Furtula and Miller as essential to the contract they allege was formed in connection with their employment, includes this disclaimer, in all capital letters: “THIS HANDBOOK IS NOT A CONTRACT. THE EMPLOYEES OF THE UNIVERSITY ARE ‘AT WILL’ EMPLOYEES AND ARE SUBJECT TO LAY-OFF OR TERMINATION IN ACCORDANCE WITH UNIVERSITY POLICIES AND PROCEDURES.”

Specific human resource policies of the University of Kentucky pertaining to the long-term disability program⁸ state that “[t]he University reserves the absolute right ... to modify or change, and to abolish or consolidate any of these programs and plans, or any portion thereof, as deemed appropriate and in the best interests of the University and its employees.” Section 8.01 of the long-term disability plan includes a “General Disclaimer” that neither the establishment of the trust, its funding, “nor the payment of any benefits shall be construed as giving any Participant or other person any legal or equitable right against the Employer, or any officer or employee thereof, or the Trustee, except as herein provided.” It also provides that “[u]nder no circumstances shall the terms of employment of any Participant be modified or in any way affected hereby.” Plan documents specifically state that nothing in it “shall be construed as a contract of employment between the [University] and any Employee[.]”

Such clear and unequivocal disclaimers of contractual intent along -with express reservations of the authority to alter and amend the disability policies at any time⁹ make it obvious to employees and prospective employees that the University of Kentucky did not intend, through these documents, to form a contract binding itself to the long term disability and salary continuation programs. This clear and convincing evidence negating the existence of contractual assent, and clearly communicating that intent to prospective and current employees, precludes us from inferring the existence of an implied contract.

Significantly, in our conclusion in Parts Depot that an implied contract did indeed arise from the employer’s personnel handbooks and documents, we specifically rejected the employer’s reliance upon countervailing cases for the very reason that those cases involved employee handbooks or personnel policies, like the University of Kentucky’s, that contained either precato-ry language or explicit disclaimers of an intention to be contractually bound. Id. at 362-63.

That absence of a contract disclaimer in the personnel policies in Parts Depot was a key underpinning for our holding that an implied contract can arise out of an employee handbook; accordingly, because the employee handbook at issue in this case contained a contract disclaimer, Parts Depot is easily distinguishable. Consequently, in light of the unambiguous and explicit disclaimers contained in the relevant University of Kentucky disability benefit documents, we are compelled to conclude that Appellants Furtula and Miller did not have an enforceable contractual claim for benefits under the University of Kentucky’s employee long-term disability compensation plans.

III. CONCLUSION

Because Appellants have not established that the General Assembly expressly waived sovereign immunity in claims based upon implied contracts arising from a state university’s employee handbooks and personnel policies, and because the relevant University of Kentucky personnel documents specifically disclaimed the creation of a contract, we conclude that sovereign immunity remains to be a valid affirmative defense under the circumstances presented, and the trial court therefore correctly awarded summary judgment regarding Appellants’ contract claims against the University. Therefore, we affirm the decision of the Court of Appeals.

CUNNINGHAM and KELLER, JJ„ concur. MINTON, C.J., agrees with Justice NOBLE’s dissent to the extent that employee handbooks and other documents can be a written unilateral contract sufficient to meet the requirements of KRS 45A.245 but joins the Court’s result because the handbook disclaimers and language in other documents reserving the University’s right to discontinue the disability-benefits programs show a lack of intent to be bound, which bars the formation of a unilateral contract in this case. NOBLE, J., dissents by separate opinion in which SCOTT, J., joins. ABRAMSON, J., not sitting.

1 . Since the University of Kentucky is a state agency, and not the state itself, they can only have governmental immunity, which while related to and flowing from sovereign immunity, is nevertheless a slightly different concept. See Comair, Inc. v. Lexington-Fayette Urban County Airport Corp., 295 S.W.3d 91, 94 (Ky. 2009) (discussing the "law of sovereign immunity, and the related doctrine) ] of governmental immunity”); Yanero v. Davis, 65 S.W.3d 510, 519 (Ky.2001) (noting that "governmental immunity” is different from but is "derived from the traditional doctrine of sovereign immunity”). The difference between the two is that sovereign immunity is absolute and an inherent aspect of the state, whereas a state agency's immunity is qualified to the extent that its existence depends on whether the agency is performing a governmental or proprietary function. See Yanero, 65 S.W.3d at 519. However, to the extent that the agency is performing a governmental function, as a state university does, its governmental immunity is functionally the same as sovereign immunity. Id. ("[A] state agency is entitled to immunity from ... liability to the extent that it is performing a governmental, as opposed to a proprietary, function.”). Because the immunities are similar, closely related, and indeed functionally the same as long as the entity is acting in a governmental capacity, the case law frequently uses the term "sovereign immunity” when discussing the immunity of state agencies. See id. (noting the terms are frequently used "interchangeably”).

2 . KRS 45A.245 states: "(1) 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 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. (2) If damages awarded on any contract claim under this section exceed the original amount of the contract, such excess shall be limited to an amount which is equal to the amount of the original contract.”

3 . The Court of Appeals has previously expressed doubt about the applicability of KRS 45A.245 and the Kentucky Model Procurement Code in the context of employment contracts. See Ashley v. University of Louisville, 723 S.W.2d 866, 867 (Ky.App.1986) ("[W]e consider the language of KRS 45A.010 to limit the chapter’s application to the procurement of items of hardware and services subject to bidding procedures.”).

4 . Since we do not decide whether the immunity-waiver provision of KRS 45A.245 applies in the context of a contractual dispute between state universities and their employees, we also do not address the applicability of KRS 45A.245’s assignment of venue; indeed, none of the parties raised arguments on that point and the Court of Appeals made no mention of it.

5 . In support of its decision the Court of Appeals cited various sections of the applicable documents that disclaimed the creation of contractual rights.

6 . By definition, "[a]n implied contract is one neither oral nor written — but rather, implied in fact, based on the parties’ actions.” Hammond v. Heritage Communications, Inc., 756 S.W.2d 152, 154 (Ky.App.1988). In the case of an implied contract "some one or more of the terms and conditions are to be implied from the circumstances or conduct of the parties.” Dorton v. Ashland Oil & Ref. Co., 303 Ky. 279, 197 S.W.2d 274, 275-76 (1946); In re Penn. Cent. Transp. Co., 831 F.2d 1221, 1228 (3d Cir.1987) ("An implied-in-fact contract, therefore, is a true contract arising from mutual agreement and intent to promise, but in circumstances in which the agreement and promise have not been verbally expressed. The agreement is rather inferred from the conduct of the parties.”); Saint Barnabas Med. Ctr. v. Essex County, 111 N.J. 67, 543 A.2d 34, 39 (1988) ("[A] true contract implied in fact ‘is in legal effect an express contract,’ and varies from the latter only insofar as the parties’ agreement and assent thereto have been manifested by conduct instead of words.” (citation omitted)); Watts v. Columbia Artists Management Inc., 188 A.D.2d 799, 801, 591 N.Y.S.2d 234 (N.Y.A.D.1992) ("A contract implied in fact rests upon the conduct of the parties and not their verbal or written words. Thus, the theories of express contract and of contract implied in fact are mutually exclusive.” (citation omitted)); accord Restatement (Second) of Contracts § 4 comment a.

7 . See Cuppy v. Gen. Acc. Fire & Life Assur. Corp., 378 S.W.2d 629, 632 (Ky.1964) ("Every contract requires mutual assent and consideration[.]”).

8 . Human Resource Policies & Procedures 90.0.

9 . For example, § 7.01 and § 7.02 of the Salary Continuation Plan allow the university president "to amend in whole or in part any or all of the provisions of [the] Salary Continuation Plan” and confer the Board of Trustees with the right to terminate the plan at any time.