REL: 9/26/2014




Notice: This opinion is subject to formal revision before publication in the advance
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Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229-
0649), of any typographical or other errors, in order that corrections may be made before
the opinion is printed in Southern Reporter.




           SUPREME COURT OF ALABAMA
                              SPECIAL TERM, 2014
                             ____________________

                                    1121006
                             ____________________

                 Alabama Municipal Insurance Corporation

                                           v.

                                   Willie Allen

                    Appeal from Madison Circuit Court
                              (CV-08-901036)

                             ____________________

                                    1121014
                             ____________________

                 Alabama Municipal Insurance Corporation

                                           v.

                                   Amber Holmes
              Appeal from Madison Circuit Court
                        (CV-09-901297)

                    ____________________

                           1121038
                    ____________________

                       City of Madison

                             v.

                        Amber Holmes

              Appeal from Madison Circuit Court
                        (CV-09-901297)

                     ___________________

                           1121039
                    ____________________

                       City of Madison

                             v.

                        Willie Allen

              Appeal from Madison Circuit Court
                        (CV-08-901036)



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.


                             2
1121006; 1121014; 1121038; 1121039

                  Facts and Procedural History

    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:

            "1. Who is an Insured

            "The following are 'insureds':

            "a. You for any covered 'auto'.


                                3
1121006; 1121014; 1121038; 1121039

            "b. Anyone else while using with your permission
       a covered 'auto' you own, hire or borrow ...."

       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 Farm.

Allen also sued his car insurer, Government Employee Insurance

Corporation, seeking uninsured/underinsured-motorist benefits.

On November 30, 2009, Holmes sued Beard individually, alleging

negligence and wantonness.1          Holmes also sued her insurer,

State Farm, seeking uninsured/underinsured-motorist benefits.2

       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


       1
     Neither Allen's nor Holmes's complaint alleged that Beard
was acting in the line of duty at the time of the accident.
       2
     These proceedings were stayed while criminal charges
against Beard were pursued.    Subsequently, the stay was
lifted.
                                     4
1121006; 1121014; 1121038; 1121039

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:


                                     5
1121006; 1121014; 1121038; 1121039

         "Ala. Code 1975, Section 11-93-2, limits the
    recovery of damages against a governmental entity to
    $100,000.00 for bodily injury for one person in any
    single occurrence. However, under the language of
    the statute and the facts of this case, the
    limitation on recovery does not apply to this
    judgment against the individual defendant, Richard
    Alan Beard."

    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:

         "The Final Judgment entered against Defendant
    Beard was based on his negligence while acting
    within the scope of his duties and operating a motor
    vehicle as a police officer for the City of Madison.
    Thus, pursuant to § 11-47-24, [Ala. Code 1975,] the
    City of Madison is required to indemnify Defendant
    Beard for the judgment entered against him based
    upon his negligence while operating a motor vehicle
    engaged in the course of his employment. However,

                                6
1121006; 1121014; 1121038; 1121039

    pursuant to § 11-47-190, [Ala. Code 1975,] when
    indemnifying an employee for a judgment entered
    against him pursuant to § 11-47-24, the City cannot
    be required to pay an amount in excess of $100,000
    per injured person. See Ala. Code [1975,] § 11-47-
    190; Benson v. City of Birmingham, 659 So. 2d 82
    (Ala. 1995). Therefore, the cap in § 11-47-190
    applies, and the City of Madison can only be
    required to pay up to $ 100,000 of the final
    judgment entered against Defendant Beard.

         "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.

         "On October 25, 2012 the City tendered the sum
    of $100,000.00 payable to Willie Allen to satisfy
    this judgment. Counsel for Allen rejected this
    payment and refused the tender. Attached hereto,

                             7
1121006; 1121014; 1121038; 1121039

       labeled as Exhibit A hereof and made a part hereof
       by reference, is a copy of the hand-delivered letter
       with attached check.

            "Therefore, the City of Madison wishes to
       deposit with this Court the sum of $100,000.00 in
       damages as full and final satisfaction of this
       judgment.

            "Pursuant to Rule 67 of the Alabama Rules of
       Civil Procedure, the City of Madison, Alabama,
       requests that this Court enter an order authorizing
       the deposit into the Registry of the Court, the sum
       of $100,000.00, and that such sum be deposited by
       the Clerk into an interest bearing account with the
       Court's authorized banking institution at the rate
       of interest prevailing on the date of the deposit.
       The City of Madison further requests that the money
       not be released to the Plaintiff, except upon full
       and final satisfaction of this judgment."

       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

                                8
1121006; 1121014; 1121038; 1121039

filed a response to AMIC's declaratory-judgment motion and

asserted   additional   defenses,    including   res     judicata,

collateral estoppel, statute of limitations, failing to issue

a "reservation of rights," and Beard's failure to appeal the

trial court's order on the application of the $100,000 cap.

Allen also filed a counterclaim pursuant to §§         27-23-1 and

27-23-2, Ala. Code 1975, seeking to apply AMIC's insurance

policy to satisfy the judgment.     On January 13, 2013, Holmes

filed a response to AMIC's motion for a declaratory judgment

and asserted the same additional defenses asserted by Allen,

along with an argument that § 11-93-2, § 11-47-24, and § 11-

47-190 do not apply to a suit against a governmental employee

in his individual capacity. Holmes also asserted a direct-

action counterclaim against AMIC pursuant to §§ 27-23-1 and

27-23-2.

    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.




                              9
1121006; 1121014; 1121038; 1121039

    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.


                               10
1121006; 1121014; 1121038; 1121039

                                 Discussion

      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


                                     11
1121006; 1121014; 1121038; 1121039

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.

    AMIC argues in case no. 1121006 and case no. 1121014 that

§ 11-47-190 applies to "any judgment" against a municipal

employee.   AMIC argues that § 11-47-190 has no field of

operation if it applies only to claims against municipal

employees sued in their official capacity or as a result of

acts occurring within the line of their duty.    AMIC further

argues that the historical context of the amendment to § 11-

47-190 and Benson v. City of Birmingham, 659 So. 2d 82, 87

(Ala. 1995), indicate that § 11-47-190 applies to reduce the

collection of "any judgment."      AMIC contends that neither

Allen nor Holmes specifically stated that Beard was being sued

in his individual capacity. AMIC argues that Holmes and Allen

do not have standing to challenge the City's indemnification

of Beard under § 11-47-24.   Lastly, AMIC argues that § 11-47-

190 is a collections cap and serves to limit the amount Holmes

and Allen can collect against AMIC as the City's insurer.

    Section 11-93-2 provides a $100,000 cap for recovery

against "a governmental entity," which, as defined in § 11-93-


                              12
1121006; 1121014; 1121038; 1121039

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:

    "Whenever any employee of a municipal corporation of
    the State of Alabama shall be sued for damages
    arising out of the performance of his official
    duties, and while operating a motor vehicle or
    equipment engaged in the course of his employment,
    such government agency shall be authorized and
    required to provide defense counsel for such
    employees in such suit and to indemnify him from any
    judgment rendered against him in such suit. In no
    event shall a municipal corporation of the state be
    required to provide defense and indemnity for
    employees who may be sued for damages arising out of
    actions which were either intentional or willful or
    wanton."

Section 11-47-190 provides:

         "No city or town shall be liable for damages for
    injury done to or wrong suffered by any person or
    corporation, unless such injury or wrong was done or
    suffered through the neglect, carelessness, or
    unskillfulness of some agent, officer, or employee
    of the municipality engaged in work therefor and
    while acting in the line of his or her duty, or
    unless the said injury or wrong was done or suffered
    through the neglect or carelessness or failure to
    remedy some defect in the streets, alleys, public
    ways, or buildings after the same had been called to
    the attention of the council or other governing body
    or after the same had existed for such an
    unreasonable length of time as to raise a
    presumption of knowledge of such defect on the part
    of the council or other governing body and whenever
    the city or town shall be made liable for damages by

                                   13
1121006; 1121014; 1121038; 1121039

    reason of the unauthorized or wrongful acts or
    negligence, carelessness, or unskillfulness of any
    person or corporation, then such person or
    corporation shall be liable to an action on the same
    account by the party so injured. However, 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 $100,000 per injured person up to a
    maximum of $300,000 per single occurrence, the
    limits set out in the provisions of Section 11-93-2
    notwithstanding."

    Both the City and AMIC cite Suttles v. Roy, 75 So. 3d 90

(Ala. 2010).   In Suttles,    a pedestrian sued the City of

Homewood and one of its police officers, who was driving a

motorcycle that struck her.   The police officer was sued in

both his official and individual capacities. Homewood and the

officer argued that the officer was immune from suit in his

individual capacity because, they argued, he was acting within

the line and scope of his employment.   This Court noted that

a sheriff and municipal peace officers are protected from

suits seeking damages from them in their individual capacity

by two different forms of immunity: Sheriffs are protected by

State immunity under Ala. Const. 1901, art. I, § 14, and

municipal peace officers are protected by State-agent immunity


                              14
1121006; 1121014; 1121038; 1121039

under the principles set out in Ex parte Cranman, 792 So. 2d

392 (Ala. 2000).   We noted that it appeared that the trial

court had not yet addressed whether the facts would support a

finding that the officer was entitled to State-agent immunity.

    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:

         "[The officer] and Homewood also state in the
    'summary of argument' and the 'conclusion' portions
    of their brief that the plain language of § 11-47-
    190 provides that no recovery may be had against an
    employee of a municipality in excess of $100,000,
    regardless of whether the employee is sued in his
    individual or official capacity. No explanation or
    elaboration on this argument is found in the initial
    brief, and no authority is cited supporting their
    interpretation of the Code section. Therefore, we
    decline to address this issue."




                             15
1121006; 1121014; 1121038; 1121039

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:

         "In the third issue in their brief on rehearing,
    Homewood and [the officer] contend that, if [the
    pedestrian] is able to assert individual-capacity
    claims against [the officer], then any damages award
    must be capped at $100,000 by Ala. Code 1975, §
    11–47–190. As noted in the opinion on original
    submission, we have refused to address this issue
    based on the lack of argument regarding it in
    Homewood and [the officer's] initial brief. Because
    we do not address this issue, it must wait to be
    resolved on another day."

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, [Ms. 1111359, March 14, 2014]

So. 3d     (Ala. 2014).   This Court stated in Morrow:

         "The first sentence of § 11-47-190 recognizes
    the principle that municipalities are generally
    immune from suit ('No city or town shall be liable
    for damages ....') and then provides an exception
    for actions seeking damages for the negligent acts
    of the agents or employees of municipalities

                              16
1121006; 1121014; 1121038; 1121039

    ('unless such injury or wrong was done or suffered
    through the neglect, carelessness, or unskillfulness
    of some agent, officer, or employee'). There is no
    exception in the statute allowing an action against
    a municipality for the wanton or willful conduct of
    its agents or employees.      Cremeens v. City of
    Montgomery, 779 So. 2d 1190, 1201 (Ala. 2000)('A
    municipality cannot be held liable for the
    intentional torts of its employees. See Ala. Code
    1975, § 11-47-190 ....'); Town of Loxley v. Coleman,
    720 So. 2d 907, 909 (Ala. 1998) ('This Court has
    construed § 11–47–190 to exclude liability for
    wanton misconduct.').

         "Further, this Court has interpreted the first
    sentence of § 11-47-190 as serving

         "'to limit municipality liability to two
         distinct   classes.       In    the   first
         classification, the municipality may be
         liable, under the doctrine of respondeat
         superior, for injuries resulting from the
         wrongful conduct of its agents or officers
         in the line of duty. In the second
         classification, the municipality may be
         liable for injuries resulting from its
         failure to remedy conditions created or
         allowed to exist on the streets, alleys,
         public ways, etc., by 'a person or
         corporation not related in service to the
         municipality.'      Isbell   v.   City   of
         Huntsville, 295 Ala. 380, 330 So. 2d 607,
         609 (1976); City of Birmingham v. Carle,
         191 Ala. 539, 542, 68 So. 22, 23 (1915).
         The municipality must have actual or
         constructive notice of the condition. If
         the claim is predicated under the second
         classification, then the third party shall
         also be liable. Isbell, supra, 330 So. 2d
         at 609, Carle, 191 Ala. at 541-42, 68 So.
         at 23.'


                             17
1121006; 1121014; 1121038; 1121039

    "Ellison v. Town of Brookside, 481 So. 2d 890, 891-
    92 (Ala. 1985).

         "The second sentence of § 11-47-190, which
    provides a cap on any recovery on a judgment
    resulting therefrom, begins with the word 'however.'
    The use of the sentence adverb (or conjunctive
    adverb)3 'however' indicates that the second sentence
    modifies the preceding sentence. Thus, it sets a
    limit on the 'recovery' stemming from a 'judgment'
    or 'judgments' that result from the liability
    allowed by the exception contained in the first
    sentence.   So, while 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 such resulting
    'judgment.' In other words, the 'recovery' that is
    capped to $100,000 by the second sentence is the
    recovery for any liability in a negligence action
    allowed by the first sentence.       Thus, when the
    second sentence of § 11-47-190 is read in light of
    the first sentence, it is clear that the second
    sentence is meant to be a limitation on the amount
    of damages a person or corporation may recover from
    a municipality in those limited situations in which
    the municipality may be held liable.

         "Morrow advances a different reading of the
    second sentence of § 11-47-190.     Specifically, he
    points to the language that 'no recovery may be had
    under any judgment ... against ... any ... employee
    ... in excess of' $100,000 and contends that this
    provides a blanket cap on any damages awarded
    against any municipal agent or employee in any
    action.   In other words, he would interpret the
    second sentence as limiting recovery from actions
    that are different from the actions allowed by the
    first sentence, including recovery in actions
    alleging wanton or willful conduct against municipal
    employees in their individual capacity.         This
    reading of § 11-47-190 improperly disconnects the

                             18
1121006; 1121014; 1121038; 1121039

    second sentence from the context of the entire
    section and fails to acknowledge the conjunctive
    adverb 'however' that links the second sentence to,
    and causes it to modify, the first sentence.

         "Further, it is clear that the reference to
    judgments against 'any officer or officers, or
    employee or employees, or agents' in the second
    sentence is made because of the need to be clear
    that municipal liability is limited to $100,000 even
    where that liability is a function of an action
    against one of those persons in their official
    capacity or of the special statutory indemnity
    imposed on a municipality by 11-47-24, Ala. Code
    1975. As to the former, in Smitherman v. Marshall
    County Commission, 746 So. 2d 1001, 1007 (Ala.
    1999), this Court held that 'claims against county
    commissioners and employees in their official
    capacity are, as a matter of law, claims against the
    county and subject to the $100,000 cap contained in
    § 11-93-2[, Ala. Code 1975, capping damages against
    governmental entities at $100,000].'      Similarly,
    claims that are brought against municipal employees
    in their official capacity are also, as a matter of
    law, claims against the municipality.

         "By the same token, because of the need to be
    clear 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 city by 11-47-24, the
    second sentence of § 11-47-190          specifically
    addresses 'judgments ... by way of indemnity under
    Section 11-47-24' that arise from judgments against
    'any officer or officers, or employee or employees,
    or agents' of a municipality.

         "Section 11-47-24, Ala. Code 1975, provides:

              "'(a) Whenever any employee of a
         municipal corporation of the State of

                             19
1121006; 1121014; 1121038; 1121039

         Alabama shall be sued for damages arising
         out of the performance of his official
         duties, and while operating a motor vehicle
         or equipment engaged in the course of his
         employment, such government agency shall be
         authorized and required to provide defense
         counsel for such employees in such suit and
         to indemnify him from any judgment rendered
         against him in such suit. In no event shall
         a municipal corporation of the state be
         required to provide defense and indemnity
         for employees who may be sued for damages
         arising out of actions which were either
         intentional or willful or wanton.

              "'(b) All municipal corporations of
         the State of Alabama are hereby authorized
         to contract at governmental expense for
         policies of liability insurance to protect
         employees   in   the   course   of   their
         employment.'

    "As this Court noted in Benson v. City of
    Birmingham, 649 So. 2d 82, 87 (Ala. 1995), by
    amending § 11-47-190 in 1994 to add the second
    sentence, the legislature clarified the fact that
    the limitation on recovery against a municipality
    also limits the amount for which a municipality may
    indemnify a negligent employee.

         "Finally, no language in § 11-47-190 suggests
    that it is intended to apply to claims against
    municipal employees who are sued in their individual
    capacities. Rather, when the statute is read as a
    whole, it is clear that the limitation on recovery
    in the second sentence of § 11-47-190 is intended to
    protect the public coffers of the municipality, not
    to protect municipal employees from claims asserted
    against them in their individual capacity.4




                             20
1121006; 1121014; 1121038; 1121039

         "3A sentence or conjunctive adverb 'is a word
    that modifies a whole previous statement. Frederick
    Crews, The Random House Handbook 403 (6th ed. 1992).

         "4Under § 11–47–24(a), the City would not be
    required to indemnify Morrow for any judgment
    against him that was based on damage resulting from
    his intentional, willful, or wanton conduct."

Morrow,      So. 3d at        .

    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

                                  21
1121006; 1121014; 1121038; 1121039

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


                                     22
1121006; 1121014; 1121038; 1121039

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


                             23
1121006; 1121014; 1121038; 1121039

interest   relating   to   the   collection   of    the   judgment[s]"

because it had a duty to indemnify Beard, and it argued that

the judgments were limited to $100,000.            Rule 17 applies to

ensure that an action is being "prosecuted" by the proper

plaintiff, and it serves to protect a defendant against a

subsequent action by the party actually entitled to relief.

The City has not cited any authority to support applying Rule

17 to an intervenor seeking to satisfy the judgments against

a defendant.

    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


                                  24
1121006; 1121014; 1121038; 1121039

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




                                    25
1121006; 1121014; 1121038; 1121039

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


                                    26
1121006; 1121014; 1121038; 1121039

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 Beard was not actually sued in his

"individual capacity" because neither Allen's nor Holmes's

complaints contain the phrase "individual capacity."              Both

complaints allege facts indicating that Beard was acting

outside his employment as a police officer when the accident

occurred.       The language of the complaint as a whole is

determinative of whether a municipal employee is being sued in

his or her individual or official capacity. Ex parte Alabama

Dep't of Mental Health, 837 So. 2d 808, 811-12 (Ala. 2002).

      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


                                   27
1121006; 1121014; 1121038; 1121039

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


                                   28
1121006; 1121014; 1121038; 1121039

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.3

                             Conclusion


    3
     AMIC does not raise any argument as to whether the City
had the authority under § 11-47-24(b) to purchase insurance
for activities outside employment.
                                  29
1121006; 1121014; 1121038; 1121039

     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

public coffers of the municipality, not to protect municipal

employees    from      claims   asserted   against   them   in   their

individual capacity.        The cap on damages for claims against

a municipality does not limit the recovery on a claim against

a municipal employee, acting outside his employment, when he

is   sued   in   his   individual   capacity.    We recognize     that

municipal employees were not the intended subject of the

legislature's enactment of § 11-17-190,4 and we also recognize


     4
     "[T]he fact and amount of liability by a municipal
employee in his or her individual capacity were not and are
not proper, or intended, subjects of the legislature's
enactment of §§ 11–47–190 and –191 and their predecessors.
Instead, employees, officers, and agents of a municipality
find themselves referenced in the last sentence of § 11–47–190
simply because of the need to be clear that governmental
liability is limited to $100,000 even where that liability is
a function of an action against one of those persons in his or
her official capacity or of the special statutory indemnity
obligation imposed on the municipality by § 11–47–24, Ala.Code
1975. The legislature's use of the word 'however' to introduce
the second sentence of § 11–47–190, and the relationship
between the first and second sentences of § 11–47–190 that, as
discussed in the main opinion, it reflects, simply reinforces
this understanding." Morrow,     So. 3d at     . (Murdock, J.,
concurring specially) (emphasis omitted).
                                    30
1121006; 1121014; 1121038; 1121039

that the legislature is better suited to speak comprehensively

on the individual liability of municipal employees. Based on

the foregoing, the judgment in favor of Allen and against AMIC

is affirmed; the judgment in favor of Holmes and against AMIC

is affirmed; the judgment in favor of Holmes and against the

City is affirmed; and the judgment in favor of Allen and

against the City is affirmed.

    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.*




     *Although Justice Murdock did not attend oral argument in
this case, he has viewed a video recording of that oral
argument.


                                31
1121006; 1121014; 1121038; 1121039

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, [Ms. 1111359, March 14, 2014] ___ So. 3d ___

(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,




                                        32
1121006; 1121014; 1121038; 1121039

including a municipal employee sued in his or her individual

capacity.5

    The main opinion comments that "the legislature is better

suited to speak comprehensively on the individual liability of

municipal employees." ___ So. 3d at ___. First, our existing

statutory and caselaw jurisprudence arguably already speaks

comprehensively to the question.     State-agent immunity, as

developed extensively in our caselaw, will apply in most cases

involving municipal law-enforcement officials, particularly

when they are acting within the line and scope of their

duties; it will apply in many cases to non-law-enforcement

municipal employees.   In addition, there may be instances in

which municipal employees are sued where, notwithstanding the

filing of a lawsuit by a third party, the nature of the

employee's obligations to his or her municipal employer do not

in fact also create a duty on the part of an employee to the


    5
     The nature of the employee's conduct may serve to relieve
a municipality from any indemnity obligation at all (if the
tortious conduct does not arise out of the performance of
official duties), or it may leave the municipality with up to
a $100,000 obligation (if the tortious conduct does arise out
of the performance of official duties). Either way, it does
not apply to limit the amount of any underlying damages
verdict rendered against the employee personally, rather than
in his or her official capacity.
                              33
1121006; 1121014; 1121038; 1121039

third party.    See generally, e.g., Morrow v. Caldwell, ___

So. 3d at ___ (Murdock, J., concurring specially) ("[T]he

question before us in this permissive appeal is limited to

whether, if an employee of a municipality is personally liable

for a tort he or she commits in the course of his or her

employment by a municipality, that liability can exceed the

$100,000 cap referenced in § 11–47–190.               Any such liability,

however, would of course depend as a threshold matter on the

existence of a duty that was personal to the employee (not

merely a duty of his or her employer) and that ran to the

plaintiff (and not merely from the employee to his or her

employer).      This    and      other      questions      concerning     the

prospective    liability    of    a     municipal     employee    in    Wayne

Morrow's position are not before us, and the main opinion

should not be understood as implying any answer to them.").

As to any circumstances outside the foregoing, i.e., where the

employee is not considered a State agent and has breached some

individual    duty   owed   by    him      or   her   to   a   third   party,

provisions of the Alabama constitution appear to present an

obstacle to a legislative prescription of limits on individual

liability.    Id. (citing Garner v. Covington Cnty., 624 So. 2d


                                      34
1121006; 1121014; 1121038; 1121039

1346 (Ala. 1993), and Home Indem. Co. v. Anders, 459 So. 2d

836 (Ala. 1984), for the proposition that, it is only because

"[t]he   common-law   doctrine   of   governmental   immunity   for

municipal and county governments predates ... the adoption of

the 1901 Constitution, that [that] doctrine survived the

adoption of that Constitution, including §§ 11 and 13 thereof

... and is subject to modification by the legislature"); see

also Smith v. Schulte, 671 So. 2d 1334 (Ala. 1995).




                                 35
