PER CURIAM.
The issue in these four appeals is whether the $100,000 statutory cap of § 11-47-190, Ala.Code 1975, applies when a peace officer, acting outside his employment, is sued in the officer's individual capacity.
On January 6, 2008, Amber Holmes and Willie Allen were injured in an automobile accident when the car they were in was struck by a police patrol car driven by Richard Alan Beard. At the time of the accident, Beard, who was employed by the City of Madison Police Department as a patrol officer, was on his way to work and was late for his shift. The City of Madison ("the City") allows its police officers to drive their patrol cars to their homes, to work, and to gym facilities (the City pays officers for the time they spend exercising). Beard was traveling 103 miles per hour in a 45-mile-per-hour zone at the time of the accident. A drug test performed on Beard after the accident indicated the presence of marijuana in his system.
The City had an automobile-insurance policy with Alabama Municipal Insurance Corporation ("AMIC"). The patrol car assigned to Beard was included in the policy. The policy provides:
On October 28, 2008, Allen sued Beard individually, alleging negligence and wantonness. Allen sued State Farm Mutual Insurance Company ("State Farm"), seeking uninsured/underinsured-motorist benefits because the car driven by Allen and owned by Holmes was insured by State
On December 30, 2009, State Farm filed a cross-claim against Beard and purported o file a cross-claim against the City seeking reimbursement and subrogation for medical benefits paid to Allen. On November 22, 2010, the City filed a motion to dismiss the cross-claim, asserting that it was not named in the complaint and that, therefore, no cross-claim could be filed against it. On January 14, 2011, the trial court granted the City's motion to dismiss the cross-claim. On September 20, 2011, Beard filed a motion for a partial summary judgment on the issue of damages in both actions, arguing that the $100,000 damages cap of § 11-47-190, Ala.Code 1975, and § 11-93-2, Ala.Code 1975, read in conjunction with the indemnification provisions of § 11-47-24, Ala.Code 1975, applied because he was on duty when the accident occurred. On November 7, 2011, the trial court consolidated the actions for trial. The trial court denied Beard's summary-judgment motion seeking to apply the damages cap. Beard filed a renewed motion for a partial summary judgment before trial, again arguing that the $100,000 damages cap applied in both Allen's and Holmes's actions against him. The trial court denied the renewed motion for a partial summary judgment.
Following ore tenus proceedings, the trial court, on September 25, 2012, entered a judgment in favor of Allen and against Beard in the amount of $700,000 and a separate judgment in favor of Holmes and against Beard in the amount of $1,100,000. In both orders, the trial court stated:
On November 6, 2012, the City and AMIC filed a joint motion to intervene in the consolidated action. In their motion, the City and AMIC argued that both the City and AMIC were the real parties in interest relating to the collection of the judgment because Beard was employed by the City and, at the time of the accident, was driving a car issued to him by the City and insured by AMIC. AMIC admitted that Beard was an insured under its policy with the City. That same day, the City filed a motion to deposit $100,000 with the court to satisfy the judgment entered in favor of Allen and $100,000 to satisfy the judgment entered in favor of Holmes. Specifically, the City stated:
"Furthermore, the cap on damages in § 11-47-190 applies to the judgment entered against Defendant Beard. As previously stated, § 11-47-190 provides, `no recovery may be had under any judgment or combination of judgments, whether direct or by way of indemnity under Section 11-47-24, or otherwise, arising out of a single occurrence against a municipality, and/or any officer or officers, or employee or employees, or agents thereof, in excess of a total of $100,000.' Ala.Code [1975,] § 11-47-190. As the Alabama Supreme Court explained in Benson v. City of Birmingham, `[t]he need to preserve the public coffers does not disappear simply because the plaintiff has proceeded against a negligent employee of the municipality rather than, or in addition to, proceeding directly against the municipality.' 659 So.2d at 86. The legislature affirmed this principle when it passed § 11-47-190, capping damages against municipalities as well as the officers, employees, and agents of municipalities. See id. at 87. Defendant Beard was acting as a City of Madison police officer at the time of the incident made the basis of this cause of action. Therefore, the $100,000 cap contained in § 11-47-190 applies to the Final Judgment entered against Defendant Beard.
Both Allen and Holmes objected to the joint motion to intervene. On November 8, 2012, AMIC filed motions for a declaratory judgment in both actions, arguing that the City was required to provide Beard with defense counsel under § 11-47-24 and to indemnify him for any judgment rendered against him. AMIC further argued that the judgment collected by Allen or Holmes against Beard is limited to $100,000 under § 11-47-190.
On December 26, 2012, the trial court granted the joint motion to intervene but denied the City's motion to deposit money to satisfy the judgments. On December 27, 2012, Allen filed a response to AMIC's declaratory-judgment motion and asserted
On January 28, 2013, the City filed a motion "to alter, amend, or vacate" the trial court's order denying its motion to deposit money to satisfy the judgments. On February 1, 2013, Beard filed a motion to substitute the City as the real party in interest.
On March 19, 2013, Allen filed a summary-judgment motion, arguing that Beard was sued in his individual capacity, that the City was never sued, that Beard failed to appeal the trial court's findings that he was not engaged in the performance of his duties or engaged in work for the City at the time of the accident, and that, therefore, the municipal-damages cap did not apply. Allen further argued that because the $100,000 municipal-damages cap did not apply, AMIC as the insurer for the vehicle operated by Beard was obligated to pay the entire judgment. On March 26, 2013, Holmes filed a summary-judgment motion, also arguing that the statutory cap of § 11-47-190 does not apply to an action against a government employee who is sued in his individual capacity.
On April 12, 2013, the trial court held a hearing on all pending motions. On April 24, 2013, the trial court entered an order denying the City's motion to alter, amend, or vacate its judgment of December 26, 2012, in which the trial court had denied the City's motion to deposit funds. The trial court also denied Beard's motion for substitution and entered a summary judgment in favor of Allen and Holmes and against AMIC. The City and AMIC appealed separately.
The dispositive issue in this case is whether the $100,000 statutory cap of § 11-47-190 applies when a municipal peace officer, acting outside his employment with the municipality, is sued in his individually capacity.
The City argues in case no. 1121038 and case no. 1121039 that the trial court erred in not allowing it to deposit $100,000 to satisfy the judgment in favor of Allen and $100,000 to satisfy the judgment in favor of Holmes because the second sentence of § 11-47-190 uses the phrase "no recovery of any judgment." The City argues that this phrase includes a judgment obtained against a municipal peace officer who has been sued in his individual capacity. The City further argues that § 11-47-24 requires the City to indemnify its employees for their negligent actions, regardless of whether the employee is sued in his or her official capacity or individual capacity. The City argues that, under § 11-47-24, it is the real party in interest, because it is obligated to defend and indemnify its employees. Lastly, the City argues that the trial court should have allowed it to deposit money to satisfy the judgments because the City's liability is limited under the statutory cap, and, even if the cap is not applicable, the City should have been allowed to deposit the money to stop the accrual of interest on the final judgment.
Section 11-93-2 provides a $100,000 cap for recovery against "a governmental entity," which, as defined in § 11-93-1(1), Ala. Code 1975, includes both municipalities and counties. Under § 11-47-24(a), municipal corporations are required to indemnify their employees under certain situations:
Section 11-47-190 provides:
Both the City and AMIC cite Suttles v. Roy, 75 So.3d 90 (Ala.2010). In Suttles, a
In Suttles, Homewood and the officer argued that if the pedestrian could sue the officer in his individual capacity, then the recoverable damages against the officer were capped at $100,000 under § 11-47-190. This Court stated that, although the statutory cap on recovery against "a governmental entity" set forth in § 11-93-2 applied to a suit against a municipal employee in his official capacity, it did not apply to a suit against a municipal employee who is sued in his individual capacity. With regard to § 11-47-190, this Court noted:
75 So.3d at 99 n. 5. Additionally, when this Court overruled the officer and Homewood's application for rehearing, Justice Shaw concurred specially, stating:
75 So.2d at 104 (emphasis added).
While the appeals in the present case were pending, the issue whether claims against a municipal employee sued in his individual capacity are subject to the statutory cap of § 11-47-190 when those claims fall within the "willful and wanton" exceptions to the doctrine of State-agent immunity under Ex parte Cranman, 792 So.2d 392 (Ala.2000), was before this Court in Morrow v. Caldwell, 153 So.3d 764 (Ala. 2014). This Court stated in Morrow:
"Further, this Court has interpreted the first sentence of § 11-47-190 as serving
"Section 11-47-24, Ala.Code 1975, provides:
Morrow, 153 So.3d at 771.
In the present case, the City's and AMIC's arguments that the second sentence of § 11-47-190, which provides that no recovery from a municipality may be had under "any judgment," whether direct or by way of indemnification under § 11-24-74, includes "judgments" against an employee, ignore the placement of the second sentence as a limitation on the "recovery" stemming from the "judgments" that result from the liability allowed by the first sentence in § 11-47-190. The first sentence provides that a municipality may be liable for the negligent acts of its agents or employees. The second sentence, by starting with the word "however," limits the "recovery" from any "judgment" resulting from that liability. In other words, the "recovery" that is capped to $100,000 by the second sentence is a recovery against a municipality in a negligence action, as contemplated by the first sentence (as well as a recovery against a municipality in an indemnity action, as also referenced in the second sentence). The City and AMIC would interpret the second sentence as limiting recovery from actions that are different from the actions allowed by the first sentence, including actions against a municipal employee in his or her individual capacity where that employee was acting outside the line of his or her duty. This reading disconnects the second sentence from the first. It also ignores the language in the second sentence referring to indemnification under § 11-47-24, which provides that an employee's actions must "aris[e] out of the performance of his official duties" in order for the municipality to have liability when an employee is sued individually, and it conflicts with Morrow.
The City argues that § 11-47-24 requires it to indemnify its employees for their negligent actions, regardless of whether the employee is sued in his or her individual or official capacity. The City ignores the language in § 11-47-24 that such conduct has to "aris[e] out of the performance of his official duties" and "while the employee is engaged in the course of his employment" with the municipality. Although obligated under § 11-47-24 to defend and indemnify its employees when they are sued in their individual capacity, that obligation arises only in reference to alleged misconduct occurring in the performance of official duties.
The City argues that it is the "real party in interest" under Rule 17, Ala. R. Civ. P., and § 11-47-24 because it is obligated to defend and indemnify its employees. Rule 17 requires that "[e]very action shall be prosecuted in the name of the real party in interest." (Emphasis added.) This Court has stated that "`the real party in interest principle is a means to identify the person who possesses the right sought to be enforced.'" State v. Property at 2018 Rainbow Drive, 740 So.2d 1025, 1027 (Ala.1999) (quoting Dennis v. Magic City Dodge, Inc., 524 So.2d 616, 618 (Ala.1988)). However, the City would not supplant Beard as the real party in interest. The fact remains that Allen and Holmes have sued Beard, individually, and he is personally liable to them under the judgments that have been entered. Even if the City had an obligation under § 11-47-24 to indemnify Beard (which it does not because his acts were found by the trial court in un-appealed judgments to be outside the scope of his employment), the City intervened, arguing that it was "the real party in interest relating to the collection of the judgment[s]" because it had a duty to indemnify
Lastly, the City argues that the trial court erred in not allowing it to deposit $200,000 to satisfy both Allen's and Holmes's judgments because § 11-47-24 requires it to indemnify its employees. As discussed above, § 11-47-24 does not require a municipality to indemnify those employees who are acting outside the performance of official duties. In conjunction with its argument regarding depositing the money with the court, the City argues that it should have been allowed to deposit the money in order to stop the accrual of interest on any amount owed under the judgments. However, the City did not raise this argument in the trial court. The City's arguments at the trial court level were limited to depositing $200,000 to satisfy both judgments. It is well settled that this Court will not reverse a trial court's judgment based on arguments not presented to the trial court. Lloyd Noland Hosp. v. Durham, 906 So.2d 157 (Ala.2005).
AMIC argues that § 11-47-190 has no field of operation if it applies only to cases brought against a municipal employee in his official capacity or for acts occurring within the line of his duty. AMIC argues that, because § 11-93-2 (capping damages at $100,000) is a cap on damages against a governmental entity (which must necessarily be paid out of public coffers), § 11-47-190 must also cover individual-capacity claims against municipal employees (which would otherwise be paid out of the employee's individual assets), or there would be no distinction between the damages cap in § 11-93-2 and the cap in § 11-47-190 because both would place a cap on damages against municipal employees only in their official capacity. In short, AMIC is arguing that § 11-93-2 and § 11-47-190 would cover the same claims unless § 11-47-190 did not also pertain to claims against municipal employees sued in their individual capacity. However, AMIC ignores the language in § 11-47-190 that the City's obligation to indemnify an employee is limited.
We agree that municipal liability is limited to $100,000 even where that liability is a function of an action against a municipal employee in his or her official capacity or of the special statutory indemnity imposed on the municipality by § 11-47-24. The second sentence of § 11-47-190 specifically addresses judgments by way of indemnity under § 11-47-24 that arise from judgments against any officer or officers, or employee or employees, or any agent or agents of the municipality. When § 11-47-190 is read as a whole, it is clear that the limitation on recovery in the second sentence is intended to protect the public coffers of the municipality, not to protect municipal employees from claims asserted against them in their individual capacity.
Next, AMIC argues that the historical context of the 1994 amendment to § 11-47-190 and Benson v. City of Birmingham, 659 So.2d 82, indicates that § 11-47-190 applies to reduce the collection of "any judgment." First, we note that Benson involved a judgment where the peace officer was acting within the line of his duty for the purposes of imposing liability on the municipality under the doctrine of respondeat superior. The present case involves actions arising outside the employee's line of duty. Second, as already discussed, in Morrow and Suttles we explained why the language used in § 11-47-190 is not applicable to "any" judgment.
AMIC argues that Allen and Holmes do not have standing to challenge the City's indemnification of Beard under § 11-47-24 because, it says, there is no authority expressly prohibiting the City from indemnifying Beard. The question before us is not whether there is any statute that prohibits a municipality from voluntarily indemnifying an employee in Beard's position, and we decline to address that issue. The question before us is whether there is a statute that obligates the City to do so. For the reasons discussed above, we conclude that there is not.
Lastly, AMIC argues that § 11-47-190 is a collection cap and limits the amount Allen and Holmes can collect against AMIC as the City's insurer. In support of this argument AMIC cites St. Paul Fire & Marine Insurance Co. v. Nowlin, 542 So.2d 1190 (Ala.1988). In Nowlin, the plaintiff recovered a $500,000 malpractice verdict against the Druid City Hospital Board. The trial court, relying on § 11-93-2, reduced the verdict to $100,000. This Court reinstated the verdict. After remand, the trial court reinstated the original verdict and entered a judgment thereon. The plaintiff, pursuant to § 27-23-2, obtained a writ of garnishment to collect $400,000 (the hospital board's insurer had paid the $100,000 reduced verdict). The insurer and the hospital board objected to the garnishment on the ground that, because § 11-93-2 limited the hospital board's liability to $100,000, the insurer's liability was also limited to $100,000. The trial court ordered the garnishment to issue. This Court reversed the trial court's judgment and held that § 11-93-2 was not unconstitutional, that § 11-93-2 limited the liability of the insurer to $100,000, the liability of the hospital board, and that § 11-93-2, therefore, limited the plaintiff's rights under § 27-23-2 against the insurer.
Nowlin is distinguishable because in Nowlin the municipality's liability was limited by the statutory damages cap and, in turn, the municipality's insurer's liability was also limited by the cap. In the present case, the statutory damages cap does not apply to Allen's and Holmes's judgments against Beard individually.
We note that it would be unlikely that a municipal employee would by covered by insurance paid for by the municipality for acts outside the employee's employment. Here, however, the City obtained an insurance policy for its police cars. The City opted to have its police officers' vehicles insured for activities outside the officers' employment, and AMIC accepted premiums for such coverage and has admitted that Beard was an insured under its policy with the City.
The $100,000 statutory cap of § 11-47-190 does not apply when a peace officer, acting outside his employment, is sued in his individual capacity. The limitation on recovery in the second sentence of § 11-47-190 is intended to protect the
1121006—AFFIRMED.
1121014—AFFIRMED.
1121038—AFFIRMED.
1121039—AFFIRMED.
MOORE, C.J., and STUART, BOLIN, PARKER, SHAW, MAIN, WISE, and BRYAN, JJ., concur.
MURDOCK, J., concurs in the rationale in part and concurs in the result.
MURDOCK, Justice (concurring in the rationale in part and concurring in the result).
I concur in the main opinion with the exception of its comment regarding the latter of the two issues addressed in this writing. First, I wish simply to reiterate my understanding that the $100,000 cap expressed in § 11-47-190, Ala.Code 1975, would be inapplicable to a claim against Richard Alan Beard in his individual capacity, even if the claim had arisen from acts or omissions by Beard while acting within the line and scope of his employment or, in the language of § 11-47-24, Ala.Code 1975, "out of the performance of his official duties." As explained in Morrow v. Caldwell, 153 So.3d 764 (Ala.2014), and reconfirmed here, § 11-47-190 is intended to protect municipal coffers; the cap on municipal liability expressed therein is only that—a cap on municipal governmental liability (whether for payment of damages to a third party or of indemnity to its own employee). The cap is simply inapposite to a judgment against any other entity, including a municipal employee sued in his or her individual capacity.
The main opinion comments that "the legislature is better suited to speak comprehensively on the individual liability
