Municipal Immunity Does Not Automatically Defeat Fraud Claims: Alabama Supreme Court Clarifies § 11-47-190 and Limits Mandamus Review to Preserved Immunity Grounds

Introduction

In Ex parte City of Montgomery (In re: Jessica De’Andrea v. City of Montgomery et al.), the Alabama Supreme Court denied the City’s petition for a writ of mandamus seeking dismissal of all claims brought by a former Montgomery police officer. The decision turns on two interlocking principles:

Municipal immunity under § 11-47-190, Ala. Code 1975, is an affirmative (non-jurisdictional) defense that must be specifically preserved as to each claim in the trial court.
Fraudulent misrepresentation is not categorically an intentional tort; because legal fraud can be “innocent” or “reckless,” a plaintiff’s well-pleaded allegations may fit § 11-47-190’s negligence-based exception, allowing a fraud claim against a municipality to proceed past the motion-to-dismiss stage.

This ruling provides important guidance on pleading municipal immunity, the scope of mandamus review, and the nuanced treatment of fraud claims against municipalities.

Case Background and Key Issues

Jessica De’Andrea, a Montgomery Police Department patrol officer, was involved in a 2015 on-duty collision with a motorcyclist, Clint Walters. Walters later sued, and in 2022 obtained a $550,000 jury verdict against De’Andrea. De’Andrea alleges the City and its agents (including outside counsel) controlled the defense, failed to communicate about settlement, post-trial options, or the municipal damages cap, and refused to satisfy the judgment—leading to her bankruptcy filing.

De’Andrea sued the City and others, asserting, among other claims, breach of contract, bad faith, fraudulent misrepresentation, failure to settle, Alabama Legal Services Liability Act (ALSLA) violations, negligence, wantonness, conspiracy, and failure to procure insurance. The trial court denied the City’s motions to dismiss. The City petitioned for mandamus, primarily invoking municipal immunity under § 11-47-190 and raising several ancillary defenses (e.g., damages cap, non-insurer status, ALSLA inapplicability, reliance, conspiracy).

The central issues before the Supreme Court were:

Whether § 11-47-190 immunity warranted mandamus relief as to De’Andrea’s claims, particularly fraudulent misrepresentation.
Whether the City preserved its immunity arguments below (and to which claims).
Whether non-immunity arguments could be considered on mandamus from a denial of a motion to dismiss.

Summary of the Judgment

The Alabama Supreme Court denied the City’s mandamus petition. It held:

Section 11-47-190 immunity is an affirmative, non-jurisdictional defense that must be specifically raised in the trial court. The City preserved immunity only as to the fraudulent-misrepresentation claim; immunity as to all other claims was waived for purposes of mandamus review.
Fraudulent misrepresentation is not invariably an intentional tort. Because § 6-5-101 recognizes “innocent” and “reckless” misrepresentations as actionable legal fraud, and because the complaint alleged alternative mental states (willful, reckless, or mistaken), there exists a set of facts under which the City’s alleged misrepresentation could fall within § 11-47-190’s negligence-based exception (“neglect, carelessness, or unskillfulness”). Therefore, immunity does not mandate dismissal of the fraud claim at the pleading stage.
Mandamus review from denial of a motion to dismiss is confined to recognized exceptions—here, immunity—and the Court will not consider non-immunity “secondary arguments” (damages cap, insurer status, duty to procure insurance, ALSLA applicability, reliance, conspiracy) that can be adequately remedied on appeal.

Analysis

Precedents and Authorities Cited

§ 11-47-190, Ala. Code 1975: Establishes municipal tort immunity with two exceptions: (1) injuries caused by “neglect, carelessness, or unskillfulness” of municipal agents acting within the line and scope, and (2) failure to remedy known defects in public ways or buildings. Also references the damages cap in § 11-93-2 ($100,000 per person, $300,000 per occurrence).
Ex parte City of Tuskegee, 932 So. 2d 895 (Ala. 2005), and Ex parte City of Bessemer, 142 So. 3d 543 (Ala. 2013): Recognize municipal immunity under § 11-47-190 and its exceptions.
City of Birmingham v. Business Realty Inv. Co., 722 So. 2d 747 (Ala. 1998): Holds § 11-47-190 immunity is an affirmative defense that must be specifically pleaded or is waived.
Altmayer v. City of Daphne, 613 So. 2d 366 (Ala. 1993): States § 11-47-190 “absolves a municipality from liability for the intentional torts of its agents” and disallowed misrepresentation/promissory fraud claims premised on intentional conduct.
§ 6-5-101, Ala. Code 1975 (Legal Fraud): Misrepresentation actionable if made willfully to deceive, recklessly without knowledge, or by mistake and innocently and acted upon.
Davis v. Sterne, Agee & Leach, Inc., 965 So. 2d 1076 (Ala. 2007): Confirms that innocent misrepresentation constitutes legal fraud; good faith is immaterial if the other party detrimentally relied.
Mandamus Standards: Ex parte United Service Stations, 628 So. 2d 501; Ex parte McWilliams, 812 So. 2d 318; Ex parte Liberty National, 825 So. 2d 758; Ex parte MERSCORP, 141 So. 3d 984; Ex parte Rock Wool, 202 So. 3d 669; Ex parte Hodge, 153 So. 3d 734; Ex parte Kelley, 296 So. 3d 822; Ex parte Hudson, 866 So. 2d 1115; State v. Martin, 69 So. 3d 94. These cases collectively reinforce the extraordinary nature of mandamus, the narrow exceptions (including immunity), and the rule that interlocutory review is confined to matters germane to the immunity issue.
Preservation and Appellate Restraint: Ex parte City of Gulf Shores, 351 So. 3d 518 (Ala. 2021) and Ex parte Staats-Sidwell, 16 So. 3d 789 (Ala. 2008): Arguments not raised below will not be considered on mandamus; mandamus review is limited to issues preserved in the trial court.
Pleading Standard: Magee v. Boyd, 175 So. 3d 79 (Ala. 2015): At the motion-to-dismiss stage, allegations are construed most strongly in the plaintiff’s favor; dismissal is proper only where it appears beyond doubt that the plaintiff can prove no set of facts entitling relief.

Legal Reasoning

Mandamus posture and preservation. The Court begins with the principle that mandamus is an extraordinary remedy, generally unavailable to review a denial of a motion to dismiss because an appeal is an adequate remedy. Immunity is a recognized exception, but only when properly preserved. Because § 11-47-190 immunity is an affirmative, non-jurisdictional defense, it must be specifically raised below; if not, it is waived for mandamus purposes. Here, the City expressly disclaimed “dealing with immunity” at an early hearing and later raised § 11-47-190 immunity only as to the fraud claim. Result: the Court limits its interlocutory review to that single claim.
Fraud is not per se intentional; the statute’s negligence exception may apply. The City relied on Altmayer for the proposition that municipalities are immune from intentional torts like fraud. The Court agrees that § 11-47-190 bars intentional tort claims but emphasizes that “fraudulent misrepresentation” encompasses more than intentional deceit under Alabama law. Section 6-5-101 and Davis recognize legal fraud based on reckless or innocent misstatements. Therefore, a fraud claim may be actionable under the statute’s negligence-based exception where it alleges municipal “neglect, carelessness, or unskillfulness.”
Pleading sufficed to survive dismissal on immunity grounds. De’Andrea alleged that the City’s misrepresentations were made “willfully,” “recklessly,” or “due to mistake.” At the motion-to-dismiss stage, courts must credit alternative allegations and draw inferences in the plaintiff’s favor. Because the complaint plausibly describes an “innocent” or “reckless” misrepresentation, it is possible that the claim falls within § 11-47-190’s negligence exception. Consequently, § 11-47-190 does not mandate dismissal of the fraud claim at this early stage.
Mandamus review is confined to immunity; secondary arguments are for appeal. The City’s ancillary defenses (e.g., damages-cap limits, non-insurer status, no duty to procure insurance, ALSLA inapplicability, lack of justifiable reliance, conspiracy failure) are not germane to the narrow immunity question and do not fit a recognized mandamus exception. The Court declines to consider them, reiterating that the existence of an adequate appellate remedy precludes mandamus relief for such matters.

Impact and Practical Implications

Pleading Municipal Immunity: Municipal defendants must specifically assert § 11-47-190 as to each challenged claim in the trial court. General references or selective invocation can result in waiver for interlocutory review. Counsel should avoid statements disavowing reliance on immunity where the defense may be needed later.
Pleading Fraud Against Municipalities: Plaintiffs who plead alternative scienter—willful, reckless, or mistaken—keep the door open to § 11-47-190’s negligence exception. A well-pleaded “innocent” or “reckless” misrepresentation theory can defeat an immunity-based motion to dismiss, even if an eventual record later shows intentional conduct (at which point immunity may reemerge as a dispositive defense).
Mandamus Discipline: The Court’s insistence on confining review to preserved immunity issues reinforces Alabama’s strong policy against piecemeal appellate review of denials of motions to dismiss. Non-immunity defenses (damages caps, insurer status, ALSLA scope, reliance) remain available on appeal after final judgment.
Strategic Litigation Effects:
- For municipalities: Early, claim-specific immunity pleadings and targeted Rule 12(b)(6) or Rule 56 motions remain crucial. Where plaintiffs plead non-intentional fraud, municipalities should be prepared to develop the record to show intentional conduct (to trigger immunity) or to contest essential elements such as materiality, reliance, causation, and damages.
- For plaintiffs: Alternative scienter pleading is especially consequential. Evidence that the misstatement was negligent or “innocent” may be dispositive of immunity at later stages. Plaintiffs should also anticipate the eventual impact of damages caps (§ 11-93-2) and indemnity statutes (§ 11-47-24), even though those issues were not reached here.
Substantive Law Clarification: The decision clarifies that “fraud” is not a monolithic, intentional tort in Alabama’s municipal-liability context. By aligning § 11-47-190’s negligence exception with § 6-5-101’s spectrum of fraud, the Court gives effect to both statutes while preserving immunity for truly intentional municipal misconduct.

Complex Concepts Simplified

Mandamus: An extraordinary order directing a lower court to perform a duty. It is available only when there is a clear legal right, a corresponding duty, no adequate remedy by appeal, and proper jurisdiction. Denials of motions to dismiss are rarely reviewed by mandamus; immunity is one of the narrow exceptions.
Municipal Immunity (§ 11-47-190): Cities are generally immune from tort damages unless the injury was caused by “neglect, carelessness, or unskillfulness” of municipal agents acting within the scope of duty, or by failure to fix known defects in public ways or buildings. Municipalities are not liable for intentional torts by their agents.
Affirmative vs. Jurisdictional Defenses: An affirmative defense (like § 11-47-190 immunity) must be raised in the trial court or it is waived. A jurisdictional defense (like sovereign immunity for the State) can be raised at any time because it deprives the court of power to hear the case.
Legal Fraud (§ 6-5-101): A misrepresentation is actionable if it is material and relied upon, even if the speaker made it by mistake or innocently. Thus, “fraud” in Alabama includes willful, reckless, and innocent misstatements.
Damages Cap (§ 11-93-2): Limits recoveries against governmental entities to $100,000 per person and $300,000 per occurrence. It was referenced in the case but not decided at this stage.
ALSLA: The Alabama Legal Services Liability Act governs claims against “legal service providers” (e.g., lawyers). Whether the City qualifies is disputed, but the Court did not reach that issue on mandamus.

Conclusion

Ex parte City of Montgomery underscores two pivotal points in Alabama municipal litigation. First, § 11-47-190 immunity is an affirmative defense that must be specifically preserved for each claim in the trial court; failure to do so limits or forecloses mandamus review. Second, fraudulent misrepresentation claims are not categorically barred by municipal immunity: because Alabama law recognizes innocent and reckless misrepresentations as “legal fraud,” a well-pleaded fraud claim can fall within § 11-47-190’s negligence exception and survive a motion to dismiss. The Court also reiterates the tight confines of mandamus review, declining to reach non-immunity defenses that can be adequately addressed on appeal after final judgment.

Going forward, the decision will shape both pleading and motion practice. Plaintiffs will more carefully allege alternative scienter to avoid early immunity dismissal, while municipalities must assert claim-specific immunity early and often. The ruling maintains the balance between protecting municipalities from intentional-tort liability and preserving accountability for negligent or careless misstatements made by municipal agents in the course of their duties.