Ex parte City of Montgomery, [Ms. SC-2024-0619, Aug. 29, 2025] __ So. 3d __ (Ala. 2025). The Court (McCool, J.; Stewart, C.J., and Shaw, Wise, Bryan, Sellers, Mendheim, Cook, and Lewis, JJ., concur) denies a mandamus petition filed by the City of Montgomery seeking dismissal of Jessica De’Andrea’s claims alleging fraudulent, negligent, wanton, or intentional bad-faith failure to settle a personal injury action against De’Andrea arising from her colliding with a motorcyclist in her patrol vehicle while employed as a Montgomery Police Officer. Ms. **2-3. A $550,000 judgment was entered against De’Andrea in the underlying case. Ms. *4.
The Court rejects the City’s argument that it is immune under § 11-47-190 because “the City did not raise that argument in the circuit court, except with respect to De’Andrea’s fraudulent misrepresentation claim.” Ms. *9. The Court explains § 11-47-190 immunity is not “a jurisdictional defense but, rather, an affirmative defense that must be specifically pleaded or is otherwise waived.” Ms. *10. The Court limited its mandamus review of the immunity defense to the fraudulent misrepresentation claim because it “‘will not grant relief to a petitioner or an appellant based on an argument presented for the first time to this Court.’ Ex parte City of Gulf Shores, 351 So. 3d 518, 521 (Ala. 2021).” Ms. *10.
The Court concludes that “[b]ecause fraudulent misrepresentation is not always an intentional tort, the City is not automatically entitled to immunity from that claim pursuant to § 11-47-190.” Ms. *12. The Court holds “there is potentially a set of facts that De’Andrea could prove with respect to her fraudulent-misrepresentation claim that would invoke an exception to the City’s statutory immunity.” Ms. *14.