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Improper Rebuttal Closing Argument - UIM - Reply-In-Kind

Allstate Ins. Co. v. Ogletree, [Ms. 1180896, Feb. 5, 2021], ___ So. 3d ___ (Ala. 2021). In a per curiam opinion, the Court (Parker, C.J., and Bolin, Shaw, Wise, Bryan, Mendheim, Stewart, and Mitchell, JJ., concur; Sellers, J., concurs in the result) reverses a judgment on a jury verdict against Allstate which awarded punitive damages based on the tortfeasor Bice driving while intoxicated. Ms. *2. In rebuttal closing argument, Ogletree argued that if the jury awarded punitive damages, Allstate could secure reimbursement of the punitive damages award from the deceased tortfeasor’s estate. Ms. *4. This was improper argument because 1) as the underinsured motorist carrier, Allstate had no right of subrogation because it had consented to its insured Ogletree’s settlement with the estate for the liability limits and 2) no evidence had been offered or admitted on the issue. Ms. *7.

Regarding alleged improper closing argument, the Court first observes

Although the trial court has wide latitude in ruling on such claims, its discretion is not boundless. See Hayden v. Elam, 739 So. 2d 1088, 1093 (Ala. 1999). We may ‘reverse the trial court’s denial of a [motion for a] mistrial based on improper statements [if] it appears from the record that the statements were probably prejudicial to the complaining party.’ Precise Eng’g, Inc. v. LaCombe, 624 So. 2d 1339, 1342 (Ala. 1993). In that vein, ‘where the improper argument is prejudicial and is based on facts not in evidence, the erroneous overruling of objection to the argument by the trial court would be cause for reversal.’ Southern Ry. Co. v. Jarvis, 266 Ala. 440, 446, 97 So. 2d 549, 554 (1957).

Ms. *6.

On the issue of prejudice, the Court holds

[W]hile we ordinarily defer to a trial court’s rulings on what is allowed in closing arguments, it is clear that substantial prejudice resulted from the erroneous statements of counsel. See Seaboard [Coast Line Ry. Co. v. Moore], 479 So. 2d [1131, 1136 (Ala. 1985)] at 1136. The jury awarded Ogletree $60,000 in punitive damages after hearing the misleading proposition that Allstate could recover from the estate of the actual wrongdoer, Bice. Moreover, the ‘fact’ of recovery from Bice’s estate was not in evidence.

Ms. **10-11. The Court emphasizes that “the prejudicial effects of the incorrect statements were exacerbated by the fact that they occurred during Ogletree’s rebuttal closing argument, denying Allstate the opportunity to correct them.” Ms. *11.

The Court rejects Ogletree’s reply-in-kind justification, and holds that “[t]he key, however, is that the right of counsel to fight fire with fire materializes only when the other side breaks the rules first.” Ms. *15. Allstate’s assertion that the purpose of punitive damages would not be served because Bice was deceased was proper argument. Ms. **15-16.

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