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04/14/95 FREDERICK B. BENSON v. CITY BIRMINGHAM

April 14, 1995

FREDERICK B. BENSON, INDIVIDUALLY AND AS FATHER OF BLAIR GILES BENSON, A DECEASED MINOR CHILD
v.
CITY OF BIRMINGHAM, ET AL.



Appeal from Jefferson Circuit Court. (CV-90-9896). Arthur J. Hanes, Jr., TRIAL JUDGE.

Released for Publication August 25, 1995.

Almon, Shores, Kennedy, Ingram, and Cook, JJ., concur. Maddox and Butts, JJ., concur in the result.

The opinion of the court was delivered by: Almon

ALMON, JUSTICE.

This is the second appeal in this wrongful death case. See City of Birmingham v. Benson, 631 So. 2d 902 (Ala. 1993).

The primary issue is whether the $100,000 damages cap on municipal liability found in Ala. Code 1975, § 11-93-2, is applicable to indemnity claims under Ala. Code 1975, § 11-47-24. We hold that the $100,000 cap is applicable to claims that seek to have municipalities indemnify their negligent employees.

The facts relative to this appeal are substantially as follows. On January 8, 1993, the Circuit Court of Jefferson County entered a judgment on a jury verdict against the City of Birmingham and one of its police officers for the wrongful death of the plaintiff's decedent. The City of Birmingham appealed; *fn1 this Court affirmed the $1,600,000 award. Benson, 631 So. 2d 902. A certificate of judgment was filed on January 11, 1994. On February 1, 1994, the City of Birmingham filed a "Notice Of Satisfaction Of Judgment," indicating a payment of $113,092.29. This amount included $100,000, the amount of the § 11-93-2 cap, plus interest from January 8, 1993. *fn2 The plaintiff then instituted garnishment proceedings against the City in an attempt to recover the balance of the original judgment. Writs of garnishment were issued to AmSouth Bank and Compass Bank. The City opposed this action by asserting that its obligation was satisfied by the payment of the $113,092.29. The circuit court held that the City was liable only up to $100,000 because, it held, the plaintiff's decedent's death did not involve the operation of an automobile or equipment, to which the court held § 11-47-24 is limited.

The plaintiff contends first that the City of Birmingham waived any right to raise the cap as a "defense" by failing to make a post-trial motion in the original circuit court action to reduce the judgment to $100,000. In support of this contention the plaintiff cites Northeast Alabama Reg. Med. Ctr. v. Owens, 584 So. 2d 1360 (Ala. 1991). In Owens the circuit court refused to grant a JNOV or a new trial for a hospital against which a jury had returned a $350,000 verdict. The circuit court refused to rule on a motion by the hospital to reduce the verdict to the $100,000 amount allowed by the cap. The circuit court held, citing Nowlin v. Druid City Hosp. Bd., 475 So. 2d 469 (Ala. 1985) (Nowlin I), that the issue of the cap was premature until the plaintiff attempted to execute on the judgment. In addition, the circuit court refused to take evidence on whether the Medical Center was a governmental entity within the meaning of the indemnity statute, a fact that was in dispute in Owens. In addressing these issues, this Court stated:

"Although Nowlin II [ St. Paul Fire & Marine Ins. Co. v. Nowlin, 542 So. 2d 1190 (Ala. 1988)] did not specifically overrule Nowlin I, Nowlin II specifically holds that a judgment against a governmental entity, by virtue of § 11-93-2, was effectively reduced from $500,000 to $100,000. In practicality, Nowlin II sets a cap on the amount of a judgment, because one cannot execute on a judgment in an amount greater than $100,000. In fact, the statute specifically provides that 'no governmental entity shall settle or compromise any claim for bodily injury, death or property damage in excess of the amounts hereinabove set forth.' Section 11-93-2.

"We hold that the trial court erred in its determination that the application of the statutory cap was not operative until there was an execution on the judgment. . . . If the trial court finds that the Medical Center is a governmental entity within the meaning of the statute, then the trial court must reduce the verdict to a sum not exceeding $100,000, plus interest, in conformity with § 11-93-2."

Owens, 584 So. 2d at 1363-64.

Nothing in Nowlin I, Nowlin II, or Owens can fairly be said to require a municipal defendant to move in the circuit court to have a verdict reduced to the statutory amount. On the contrary, this Court's decision in Owens makes it clear that a circuit court must reduce a verdict if the defendant is determined to be a governmental entity. The fact that the legislature mandated that no settlement exceed the statutory cap amount is further evidence that it did not intend for a municipality to pay more than the cap amount. For this Court to require a municipal defendant to make a motion to implement the mandatory damages cap would undermine the policy of limited liability that the legislature intended. Therefore, we hold that the City of Birmingham was not required to move to have the judgment reduced and did not waive the right to have the judgment reduced. As this Court stated in Owens, when a defendant is determined to be a governmental entity the trial court must reduce the judgment to $100,000.

The second issue is whether § 11-47-24, which requires a municipality to indemnify its employees in certain circumstances, is applicable to all tort actions against employees of municipalities or only to actions arising from injuries that the employee causes "while operating a motor vehicle or equipment engaged in the course of his employment." The plaintiff contends that there is no limitation on the amount of indemnity provided by § 11-47-24 and thus that the City is responsible for the entire amount of the judgment. In response to this argument, the City argues ...


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