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Pollard v. Hunt11/10/2005
other words, for him to be out. He says sometime prior to October of 2000. Now, that's not what he told you in court, is it?
{ } "He says at that time, sometime prior to 2000, I informed Ohio Bar Liability Insurance Company of the Pollard claim. Well, as far as we're concerned, this information is new to us. This is new, but it's not good enough. It's not good enough for the Pollards. Just follow me. It's not good enough for the Pollards because it has to be more specific. The notice has to be, remember, within the policy periods of June '94 to June '96. So this doesn't do it.
{ } "We get this affidavit. Sure enough, we [OBLIC] get this affidavit. We don't have any problem with the affidavit. We, this is nonsense here but what happens? Then the Thomas firm has Hunt sign another affidavit. Look what happens. Look what happens. At some point in June or July of 1995, it's a miracle, folks. Now we're in the policy period. It's a miracle. Sometime, at some point in June or July, I became aware of a potential claim for a legal malpractice claim being made against me. What is he talking about?"
{ } In our judgment, OBLIC's counsel's comments were within the bounds of permissible closing argument. Although OBLIC's counsel created the impression that Hunt had agreed to state that he had contacted OBLIC within the policy period in order for the Pollards to be able to pursue their claim against the insurance company, this was a permissible inference in light of the evidence. For purposes of showing bias or attacking Hunt's credibility, the trial court permitted testimony that Hunt and the Pollards entered into a settlement agreement and that part of that settlement was that Hunt would assign any interest he had in the policy with OBLIC to the Pollards. Although the jury was not permitted to learn that Hunt had agreed to a judgment of $750,000 or that Hunt was required to satisfy only $4,000 of that amount, it was reasonable for OBLIC to argue that the settlement may have had an impact on Hunt's testimony. In particular, we believe that OBLIC reasonably could argue that, in order for the assignment to have value, the Pollards needed to have notice within the policy period. Morever, it was permissible for OBLIC to note that Hunt's evidence in support of that notice got more favorable when he signed the second affidavit, which was presented to him by the Pollards' attorney. In reaching our determination, we recognize that OBLIC's counsel skirted the line between acceptable closing argument and disparagement of opposing counsel. However, reading the closing argument as a whole, we do not conclude that OBLIC's argument went beyond acceptable closing argument and warrants reversal.
{ } The assignment of error is overruled.
{ } The judgment of the trial court will be affirmed.
FAIN, J. and YOUNG, J., concur.
(Hon. Frederick N. Young retired from the Second District Court of Appeals sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
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