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Pollard v. Hunt11/10/2005
omething like this on the bad insurance company because it's an outrage." Upon review of the argument as a whole, it is apparent that these statements were displays of showmanship. However, they were not "so egregious and prejudicial that the trial court abused its discretion by failing to admonish counsel and take curative action." Pesek, 87 Ohio St.3d at 503.
{ } Next, the Pollards assert that OBLIC's counsel improperly argued to the jury that Hunt had lied when he testified that he contacted OBLIC during the policy period. During closing argument, OBLIC's counsel initially stated " m I standing here calling Dick Hunt a liar? No." However, its counsel subsequently stated that he could not "break down Mr. Hunt and have him withdraw" his statements and that he could not "bang him [Hunt] over the head and say, tell the truth." Such statements clearly suggest that Hunt had knowingly testified falsely regarding whether he had given oral notice to OBLIC during the policy period. Although counsel may not make unwarranted attacks on a witness's character, it is not improper to characterize a witness as a liar or a claim as a lie if the evidence reasonably supports the characterization. See State v. Baker, 159 Ohio App.3d 462, 467-68, 824 N.E.2d 162, 2005-Ohio-45, .
{ } In this case, there was substantial evidence from which OBLIC could argue that Hunt was not credible and, in fact, had lied about contacting OBLIC regarding the Pollards' claims. Upon review of the record, OBLIC presented a strong case that Hunt had failed to provide oral notice to OBLIC between June 7, 1994, and June 7, 1996. Hunker testified that OBLIC had never received any notice of the Pollard claim during the policy period. He indicated that he and Gretchen Koehler-Mote handled claims, and that neither was aware of a report of the Pollard claim prior to Mr. Smalley's written notice. Mr. Hunker's investigation, including research into telephone records, database, and other malpractice claim files, failed to reveal evidence that Hunt had orally reported the claim between June 7, 1994, and June 7, 1996.
{ } In addition, OBLIC elicited substantial evidence that Hunt's testimony was not credible. He testified that, although he had called OBLIC about the Pollards, he could not recall "the conversation as to who I spoke to or what was said or the time that I made the phone call. My recollection was June or July, but that was years afterwards." Hunt further testified on cross-examination that he "didn't feel that the fact that the judge was right about having gotten Domino's out of the case was the kind of thing that had to report to malpractice insurance carrier." Hunt testified that he did not feel that he had done anything wrong in connection with his representation of the Pollards.
{ } As for the telephone call, OBLIC's telephone log for its toll-free line showed a telephone call to OBLIC from Hunt's office on May 23, 1995; the call lasted 1.8 minutes. Hunt testified that he did not know who had placed the May 23, 1995, call, and that the call could have been made by a secretary or another lawyer within the firm. There was no record of a call in June or July of 1995. OBLIC never provided a written acknowledgment of the alleged 1995 call regarding the Pollards, and no one from OBLIC contacted Hunt about the case or his actions. Although OBLIC did not have a telephone log for calls into the "614" line, the Pollards did not provide any of Hunt's telephone records to support their assertion that a call had been made to that line in June or July of 1995.
{ } Two days after the May 23, 1995, telephone call, a renewal application was sent out to the firm to renew the malpractice insurance. The law
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