author: YATES, Presiding Judge. MURDOCK, Judge,

text:
    UNITED SERVICES AUTOMOBILE ASSOCIATION v. John V. HOBBS.
    2010780.
    Court of Civil Appeals of Alabama.
    March 28, 2003.

      Mark J. Upton of Daniell, Upton, Perry & Morris, P.C., Daphne, for appellant.
    Gary Bradshaw, Enterprise; and Thadi-us W. Morgan, Jr., Enterprise, for appel-lee.
   YATES, Presiding Judge.

John V. Hobbs sued United Services Automobile Association (“USAA”)on November 3, 1999, alleging a breach of contract, fraud, bad-faith denial of an insurance claim, and the tort of outrage. Hobbs sought to recover both compensatory and punitive damages. USAA answered on December 6, 1999, denying the allegations contained in the complaint and affirmatively alleging that Hobbs had failed to cooperate and had misrepresented certain material facts during the course of its investigation of his claim.

The case proceeded to trial before a jury on October 31, 2001. At the close of Hobbs’s case, USAA moved the court for a preverdict judgment as a matter of law (“JML”)(formerly a motion for a directed verdict) as to the counts of the complaint alleging breach of contract, fraud, and bad-faith refusal to pay an insurance claim. The trial court denied the preverdict JML as to the breach-of-contract and bad-faith counts and granted it as to the fraud count.

At the close of all the evidence, USAA renewed its motion for a JML as to the count alleging bad-faith refusal to pay an insurance claim; USAA did not renew its motion for a JML as to the breach-of-contract count, conceding that a jury question existed as to that count. The trial court denied the motion and submitted the case to the jury. On November 7, 2001, the jury returned a verdict in favor of Hobbs on the counts alleging breach of contract and bad-faith refusal to pay and awarded him $65,000 in compensatory damages and $15,000 in punitive damages. The trial court entered a judgment on the verdict on that same day. USAA moved the court for a postverdict JML or, in the alternative, for a new trial; that motion was denied by operation of law. USAA appeals.

Hobbs was a first sergeant in the United States Army and was stationed in Germany with his wife, Myong and their two children. Hobbs’s mother became ill, and he requested that his foreign-service tour be terminated early. Hobbs’s request was granted and he was transferred to Fort Rucker in Enterprise. Hobbs testified that before he was transferred, he purchased a number of expensive antiques and collectibles as an investment for his children. Hobbs stated that those items were purchased in January and February 1998.

Hobbs testified that the Army coordinates and handles through its transportation office every aspect of a soldier’s move. He stated that the company chosen by the Army to move a soldier does a pre-move inspection and all of the packing and boxing of the soldier’s property. The property is packed in boxes that are sealed and numbered. The boxes are then packed into larger wooden crates, and larger items, such as furniture, are numbered and placed directly into the crates. The crates are then caulked and nailed shut. A numbered metal or plastic seal is placed on the crate and the crate is then banded with a large metal band. The metal bands must be cut with shears in order to remove them. Hobbs testified that the soldier is not allowed to participate in the packing process. Hobbs further stated that a representative of the moving company inventories on controlled documents all of the property.

The company chosen by the Army to pack and move Hobbs’s property from Germany to the United States was Vikto-ria Erbes G.m.b.H (“Erbes”). Inventory documents generated by Erbes indicate that it packed and inventoried Hobbs’s property on Friday, March 27, on Monday, March 30, and on Tuesday, March 31, 1998. Hobbs testified that he was present the entire time Erbes was packing his property. An inventory list generated by Erbes indicates that 493 boxes and/or large items were removed from Hobbs’s apartment. The inventory list indicates that box no. 286 contained “Austrian porcelain — crystal—150 CDS” and that box no. 372 contained “china — silverware— crystal.” The 493 boxes and/or large items were packed into 18 crates. Erbes generated an inventory document that contained the crate numbers with their corresponding seal numbers. Hobbs noted the following on this document: “Crates were nailed shut. Tops of crates appeared old and some were loose. I did not verify seals on each container as it is specified.”

Erbes also generated an inventory form entitled “High Risk Items Addendum to Inventory.” Listed on this document are a number of items owned by Hobbs the value of which is high, such as computer, stereo, and television equipment. Hobbs noted the following on the high risk addendum: “China, crystal, antique collections, and silverware not noted on all inventory items due to large quantity. I will note these on the back of the loss prevention work sheet.” Hobbs testified that he listed with specificity on the back of the loss-prevention worksheet certain pieces of expensive china, silver, and antique collectibles. The record contains a photocopy of the front of the loss prevention worksheet; however, it does not contain a copy of the reverse side of that document. Hobbs testified that he attempted to obtain a copy of the reverse side of the loss prevention worksheet from Erbes, but was unable to do so because the company had declared bankruptcy and was no longer in business. The high risk addendum and the loss-prevention worksheet were signed by both Hobbs and the Erbes representative.

Hobbs’s property and the inventory documents were shipped overseas and stored in a warehouse managed by Coleman America Moving Services (“Coleman”). Eddie Baxter, the warehouse supervisor for overseas shipments for Coleman, testified that he inspected Hobbs’s shipment and that all of the crates were present and properly sealed and banded and that none of the tops of the crates were loose. Hobbs’s property was delivered to his residence by Coleman on June 10,1998.

Hobbs testified that when his property was off-loaded he noticed that some of it was damaged and that when the doors of the moving truck opened “stuff fell out.” He stated that he did not inspect the seals on the crates before the crates were opened. Hobbs testified that he checked his property off the inventory list provided by Coleman as it was off-loaded and discovered that box no. 286 and box no. 372 were missing. Martha Foerch, a Coleman employee who delivered Hobbs’s property, testified that she posted the inventory sheets and that Hobbs checked his property as it was off-loaded. Foerch confirmed that some of Hobbs’s property was damaged and that some property was missing; however, she stated that Hobbs never indicated to her that the missing property was valuable antiques and collectibles. Hobbs testified that he and a representative from Coleman completed a form entitled “Joint Statement of Loss at Delivery” indicating, among other things, that boxes nos. 286 and 372 were missing.

Hobbs requested a reweigh certificate of his shipment, which indicated that it weighed 289 pounds less upon arriving in the United States as it did when it left Germany. Foerch stated that such a discrepancy in weight would indicate that some of the shipment was missing. She stated that generally when property is missing from shipments that originate in Germany, the property never gets “put on the inventory sheets and the Germans will keep it.” Foerch stated that the property is generally removed from the crates before they are sealed. Baxter testified that the weight discrepancy could be attributed to differing fuel levels in the tractor-trailers when they are weighed, or one tractor-trailer could be weighed with a person on it while the other tractor-trailer was not.

Hobbs submitted a claim of approximately $21,000 for his damaged property to the Army claims office at Fort Rucker. The Army paid Hobbs $13,312 to settle his claim. Larry Jackson, a claims examiner with the Army claims office, testified that he was notified of Hobbs’s shipment and went to inspect it. Jackson stated that Hobbs had suffered “a lot of damage” to his shipment. The office of the staff judge advocate notified Hobbs that it was awarding him less than the amount claimed because depreciation was subtracted from the replacement costs of certain destroyed items; because Hobbs was unable to substantiate the value of certain items; and because Hobbs was unable to substantiate that certain items represented as antiques were, in fact, antiques. Jackson testified that Hobbs represented certain items to be antiques that were later determined not to be antiques. Because Hobbs had an insurance policy with USAA, Jackson referred him to USAA regarding a claim for his lost or stolen property.

Hobbs had a USAA renter’s policy in effect at the time of the alleged loss; the items allegedly lost or stolen were covered by the policy. The policy provided personal-property coverage of $89,000 including replacement-cost coverage and increased coverage for silverware. The policy contains the following provisions:

“CONCEALMENT, MISREPRESENTATION OR FRAUD
“The entire policy is void if, whether before or after a loss, an insured:
“a. intentionally conceals or misrepresents any material fact or circumstance; or
“b. makes false statements or engages in fraudulent conduct relating to this insurance.
“DUTIES AFTER LOSS
“If there is an accident or incident that may be covered by this policy you must do the following:
“1. In the case of a loss by theft, vandalism, or malicious mischief, immediately notify the police or military authority, whichever has jurisdiction over the location where the loss occurred. Immediately notify the credit card or fund transfer card company in ease of loss under CREDIT CARD or FUND TRANSFER CARD coverage.
“2. Protect the property from further damage.
“3. Contact us as soon as possible and tell us as much as you can about the loss. Give us the price and date of purchase, actual cash value and a complete description of the artiele(s) involved.
“4. Submit a proof of loss when required by us.
“5. Send us receipts, appraisals or other proof of ownership or value. Tell us if there is a hen on the property, and who holds it. You must tell us if there is other insurance on the property.
“6. If required by us, you must show us the property and answer our questions under oath about the loss or damage.
“7. You must tell us about the loss within 91 days after the loss is discovered. Unless you are reasonably prevented from doing this, your claims will not be accepted.”

Hobbs reported the alleged loss to USAA, and USAA began an investigation of Hobbs’s claim. Hobbs submitted a sworn statement of loss to USAA claiming $68,094 in lost or stolen property. Hobbs provided documentation to USAA in an attempt to substantiate his loss and gave a number of recorded statements to representatives of USAA, including one examination under oath. USAA had failed to pay Hobbs’s claim by November 1999 so he filed the action underlying this appeal. On December 3, 1999, USAA notified Hobbs by letter that it was denying his claim for the lost or stolen items. The letter stated, in part, as follows:

“USAA Insurance Company was in the process of concluding its investigation in this case at the time you chose to file suit against USAA. While your failure to cooperate with USAA has prejudiced its investigation in that you have not produced documents necessary to support your claim, USAA has determined that your claim for benefits should be denied.
“First, you have failed to produce sufficient evidence that the items alleged by you to have been taken during transit were, in fact, purchased by you during January and February 1998. Further, you have failed to produce any actual receipts or photographs of the items to prove their existence prior to your move back to the United States from Germany.
“Second, USAA is of the opinion that during the course of our investigation into this theft loss, you made material misrepresentations to us and suppressed material facts which have violated the concealment and fraud provisions of the policy. ■ For that reason, the policy would be void based on those material misrepresentations.”

The letter was signed by Barbara Slawiak, senior claims examiner.

USAA argues on appeal that the jury’s verdict on Hobbs’s breach-of-contract claim is contrary to the great weight of the evidence and that there is no sufficient evidentiary basis from which the jury could find in favor of Hobbs, because, it says, it presented uncontradicted evidence of fraud by Hobbs that would void the insurance policy. It is well settled that “ ‘a [preverdict motion for a JML] must be made at the close of all the evidence and that a timely [postverdict motion for a JML] must be subsequently made before an appellate court may consider on appeal the insufficiency-of-evidence issue directed to the jury’s verdict.’ ” Sears, Roebuck & Co. v. Harris, 630 So.2d 1018, 1025 (Ala.1993) (emphasis added) (quoting Bains v. Jameson, 507 So.2d 504, 505 (Ala.1987)). Our supreme court has stated:

“We find the procedures contained in Rule 50 [Ala. R. Civ. P.] devise a precise plan for attacking the sufficiency of the evidence. This plan recognizes the important role played by the trial judge in determining that sufficiency. The final step in preserving appellate review of the sufficiency of the evidence in a jury trial is the making of a timely [postver-dict motion for a JML]. Failure to make that motion prohibits appellate review of the sufficiency of the evidence. This is one reason a [preverdict motion for a JML] must be made at the close of all the evidence. Failure to make the latter motion at the close of all the evidence precludes the party complaining of the insufficiency of the evidence from later making a [postverdict motion for a JML]. See Rule 50 [Ala. R. Civ. PJ This preclusion, thus, prevents the appellate court from reviewing the sufficiency of the evidence in a jury trial.”

Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877, 881 (Ala.1979) (emphasis added).

As previously mentioned, USAA failed to make a preverdict motion for a JML at the close of all the evidence. We note the following colloquy between the trial court and counsel for USAA:

“[The court]: Motions after the close of all the evidence?
“[USAA counsel]: Your Honor, at this point, we have a motion for a directed verdict as to the ... bad faith count in the complaint. The grounds, your Hon- or, are those grounds that we stated previously at the close of the plaintiffs evidence plus that additional evidence that the jury has now heard on the difficulty that USAA had with the descriptions given by Sgt. Hobbs of the items and therefore the difficulty determining what the value of those items might be based on the descriptions. I won’t argue the remaining facts, Judge. I think those all were presented at the close of the plaintiffs evidence. So with that, we’ll close the argument.
“[The court]: Do you wish to make any motion with regard to the contract?
“[USAA counsel]: No, sir. I think there’s a jury question on the contract.”

Accordingly, because USAA failed to renew its motion for a JML as to the breach-of-contract count at the close of all the evidence, we are now precluded from considering USAA’s argument as to the sufficiency of the evidence regarding that count.

USAA next argues that the jury’s award of $65,000 in compensatory damages is not supported by the evidence. This argument is without merit. We note the following:

“Jury verdicts are presumed to be correct. This presumption of correctness is further strengthened by the trial court’s denial of a motion for new trial. The appellate court must consider those tendencies of the evidence most favorable to the prevailing party and must indulge such inferences as the jury was free to draw. Therefore, a judgment based on a jury verdict will not be reversed unless it is plainly and palpably wrong.”

Alabama Agric. & Mech. Univ. v. King, 643 So.2d 1366, 1370 (Ala.Civ.App.1994) (citations omitted). A plaintiff is not required to prove his damages to a mathematical certainty; rather, he is required to present evidence tending to show the extent of damages as a matter of just and reasonable inference. Jamison, Money, Farmer, & Co. v. Standeffer, 678 So.2d 1061 (Ala.1996).

USAA specifically argues that the amount of compensatory damages that could have been awarded was $68,094 — the amount claimed in the sworn proof of loss — or for a lesser amount that would be supported by the evidence if the jury believed that the value of the items was less than the amount claimed by the plaintiff. This is exactly what the jury did in awarding Hobbs $65,000 in compensatory damages. The jury obviously concluded from the evidence presented that Hobbs owned the missing items, but that the value of the items was slightly less than the value claimed by Hobbs. The evidence before the jury was sufficient to support a compensatory-damage award of $65,000.

USAA next argues that the trial court erred in failing to grant its prever-dict JML on Hobbs’s bad-faith claim. The standard of review for a motion for a JML, under the current version of Rule 50, Ala. R. Civ. P., is the same as the standard for review of a motion for a directed verdict and a motion for a JNOV under Rule 50 as it read before the October 1, 1995, amendment. See Montgomery Coca-Cola Bottling Co., Ltd. v. Golson, 725 So.2d 996 (Ala.Civ.App.1998).

Our supreme court has stated:

“When reviewing a ruling on a motion for a JML, this Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11,1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala. Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmov-ant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999).

We note the following discussion by Justice Lyons of the tort of bad faith in Employees’ Benefit Ass’n v. Grissett, 732 So.2d 968 (Ala.1998):

“In Chavers v. National Security Fire & Casualty Co., 405 So.2d 1 (Ala.1981), this Court ... recognized a new tort action for the bad-faith failure to pay an insurance claim. Liability was grounded on either (1) the defendant’s failure to pay the claim, with no lawful basis for the refusal, coupled with the defendant’s knowledge of the fact that it had no lawful basis or (2) the defendant’s intentional failure to determine whether there was any lawful basis for such refusal. 405 So.2d at 7. In National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357 (Ala.1982), the Court modified those standards and recognized the ‘normal’ versus the ‘abnormal’ bad-faith case. In ‘normal’ cases, the plaintiffs contract claim had to be so strong that the plaintiff would be entitled to a preverdict JML; if a fact issue made a JML inappropriate, then the defendant was enti-tied to a JML on the plaintiffs bad-faith claim. 419 So.2d at 1362. Even so, a trial court’s failure to enter a JML on the plaintiffs breach-of-contract claim is not fatal as long as the trial court correctly determines that the plaintiff has met the standard of proof required for a JML. Loyal American Life Ins. Co. v. Mattiace, 679 So.2d 229, 235 n. 2 (Ala.), cert. denied, 519 U.S. 949, 117 S.Ct. 361, 136 L.Ed.2d 252 (1996).
“The rule in ‘abnormal’ cases dispensed with the predicate of a prever-dict JML for the plaintiff on the contract claim if the insurer had recklessly or intentionally failed to properly investigate a claim or to subject the results of its investigation to a cognitive evaluation. Blackburn v. Fidelity & Deposit Co. of Maryland, 667 So.2d 661 (Ala.1995); Thomas v. Principal Financial Group, 566 So.2d 735 (Ala.1990). A defendant’s knowledge or reckless disregard of the fact that it had no legitimate or reasonable basis for denying a claim may be inferred and imputed to an insurer when it has shown a reckless indifference to facts or proof submitted by the insured. Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916, 924 (Ala.1981).
“So, a plaintiff has two methods by which to establish a bad-faith refusal to pay an insurance claim: he or she can prove the requirements necessary to establish a ‘normal’ case, or, faffing that, can prove that the insurer’s failure to investigate at the time of the claim presentation procedure was intentionally or recklessly omissive.”

Grissett, 732 So.2d at 975-76 (footnote omitted). For a more thorough discussion of the development in the law of the tort of bad faith see the discussion in State Farm Fire & Casualty Co. v. Slade, 747 So.2d 293 (Ala.1999).

Our supreme court set forth the elements necessary for a plaintiff to establish a bad-faith claim in National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982); those elements are:

“(a) an insurance contract between the parties and a breach thereof by the defendant;
“(b) an intentional refusal to pay the insured’s claim;
“(c) the absence of any reasonably legitimate or arguable reason for that refusal (the absence of a debatable reason);
“(d) the insurer’s actual knowledge of the absence of any legitimate or arguable reason;
“(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer’s intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim.”

Id., at 183. “Requirements (a) through (d) represent the ‘normal’ case. Requirement (e) represents the ‘abnormal’ case.” Grissett, 732 So.2d at 976. In a “normal” case the insurer is precluded from using an ambiguity in the contract as a basis for claiming a debatable reason not to pay a claim. Id. To recover under a theory of an “abnormal” case,, the plaintiff must show “(1) that the insurer failed to properly investigate the claim or to subject the results of the investigation to a cognitive evaluation and review and (2) that the insurer breached the contract for insurance coverage with the insured when it refused to pay the insured’s claim.” Slade, 747 So.2d at 318.

Beth Hockman, a claims adjuster with USAA, took a recorded statement from Hobbs on December 23, 1998. Hockman testified that she asked Hobbs to provide a description of the property, where the property was purchased, photographs, receipts, warranty booklets, appraisals, and any other documents that would establish the value and proof of purchase of the alleged missing items. She stated that Hobbs informed her he would provide that information. Hockman .received from Hobbs a packet of materials and a memorandum dated December 28, 1998. The memo gave a brief description of the items and the city or country in which they were purchased. This memorandum did not provide an actual name of the seller or vendor. Hockman stated that she forwarded the information to Tonia Mazac, a buyer with USAA’s claims replacement service, to establish the value and authenticity of the item. Hockman also stated that she spoke with David Hozinec, a member of USAA’s special investigations unit, in order to get some ideas on how to establish the values and authenticity of the alleged missing items. Hockman received a second memorandum from Hobbs dated January 9, 1999. Hobbs stated in that memorandum that he had provided USAA with all of the receipts he had in his possession, that some of the receipts and authenticating documents had been packaged with the missing items, and that he had also provided verification of the weight discrepancy of the shipment in order to substantiate his loss. Hobbs also gave a further detailed description of the alleged missing items and stated that he referred to magazines, catalogues, and antique collectors’ guides in making his evaluations. Hockman stated that after she forwarded the memos and materials to Mazac she followed up with the shipping and storage companies that had handled Hobbs’s shipment.

Mazac testified that the claims replacement service consists of 15 buyers who have specialized knowledge in a variety of products. The primary responsibility of the claims replacement service is to provide values or replacement costs to claims adjusters on property as to which a USAA member has sustained a loss. Mazac testified that in valuing antiques, she would obtain a description of the antique and then refer to such resources as antique-value guides, dealers, and experts. Mazac testified that she reviewed the memos and materials provided by Hobbs in order to determine the value of the alleged missing items. Following her review of the memos and materials, Mazac notified Hockman by letter dated February 15, 1999, that the descriptions provided by Hobbs were vague and did not contain enough information to verify the values Hobbs claimed to have paid for the items. Mazac provided a summary of the additional information needed to properly evaluate Hobbs’s claim. Hockman testified that after she received the letter from Mazac, she concluded that there were some inconsistencies associated with the claim and that the claim was beyond the scope of her experience so she referred the claim to Hozinec.

Richard Swann, an investigator with USAA’s special investigations unit, began investigating Hobbs’s claim in February 1999. Swann assigned Allen Haskins, an investigator, to interview Hobbs in order to obtain additional information regarding the claim and the alleged missing items. Haskins took a recorded statement from Hobbs on March 4, 1999. Swann testified that after reviewing the information obtained by Haskins and discussing that information with the claims staff, he had a conversation with Hobbs in which he requested additional documentation from Hobbs. Swann stated that Hobbs told him he would provide financial records that would substantiate the large cash purchases of the items. Swann testified that at that point USAA had questions regarding the quantity of items alleged to have been purchased in a short period and whether Hobbs had the financial resources to make those purchases. Swann obtained an authorization from Hobbs to obtain financial and credit information.

Hobbs agreed to submit to an examination under oath, which was conducted by-Swann, Hozinec, and USAA’s counsel on September 23, 1999. Swann testified that, after the examination under oath, USAA had further questions and concerns relating to Hobbs’s claim. Swann stated that Hobbs failed to produce a receipt for any of the alleged missing items and failed to produce the name of the seller or vendor from which the items were purchased. He stated that Hobbs had not sufficiently established proof of purchase or ownership of the items at that time. Swann testified that following the examination under oath he directed additional investigators to interview Myong, Hobbs’s former wife, to obtain any additional information possible from the moving companies involved, and to obtain any documentation from Hobbs’s home state of Georgia regarding any possible inheritance.

Swann testified that he attended a conference with various other USAA representatives, including a regional assistant vice president of claims, legal advisors, and a management-level underwriter, to discuss the status of Hobbs’s claim. Swann stated that the decision was made at that conference to deny Hobbs’s claim. He testified that USAA was concerned because Hobbs had failed to list the alleged missing items on the high-risk inventory and that Hobbs had been unable to provide the name of a dealer or vendor from which he had purchased the items, or otherwise properly to substantiate his loss. Swann further testified that USAA was concerned with Hobbs’s financial condition because he alleged to have purchased many expensive items within a short period, yet 15 checks he had written in December 1997 were returned for insufficient funds, and he had negative balances in a bank account in December 1997 and January 1998. Swann also stated that Hobbs had provided inconsistent statements regarding his annual income. Swann testified that USAA conducted a thorough investigation of Hobbs’s claim and that many times it found contradictory or inconsistent statements by Hobbs, which led to an “air of uncertainty” regarding his claim.

Barbara Slawiak, a senior claims examiner and claim investigations advisor with USAA, testified that Hobbs’s claim was reviewed by the senior regional vice president for claims, the legal department, and her, at a regional claims conference, and that the decision to deny the claim was a collective decision made by those employees of USAA at the claims conference. Slawiak stated that USAA did not deny Hobbs’s claim based on one reason, but rather considered a number of reasons and looked at the “whole picture.”

Slawiak testified that Hobbs had failed to substantiate his alleged loss. She stated that Hobbs failed to produce a single receipt for any of the alleged missing items and that the documentation he did produce did not pertain to the missing items; that Hobbs was unable to produce the name of any dealers or vendors from which he purchased the items; that he was unable to produce appraisals for the rather expensive missing items; and that the items could not be verified by Mazac based on the descriptions and materials provided by Hobbs.

Slawiak testified that it was significant to USAA in denying the claim that none of the alleged missing items were listed on the high-risk inventory addendum. She stated that the claim presented by Hobbs indicated that 13 items were missing and that he had enough space available on the front of the high-risk inventory addendum to list all but two of the items. Slawiak stated that USAA had never been provided with a copy of the reverse side of the loss-prevention worksheet — the document upon which Hobbs claims to have listed the missing items. Slawiak further stated that it was significant to USAA that the high-risk inventory addendum indicated that all high-risk items were received and did not list any of the items as missing when it was signed by the Coleman employee at the time of delivery.

Slawiak testified that USAA took Hobbs’s financial condition into consideration before denying his claim. She stated that Hobbs gave inconsistent statements regarding his income and the amount of insurance proceeds he had received as a result of the deaths of his father and brothers. Slawiak testified that it was significant to USAA that Hobbs had “bounced” 15 checks in December 1997, the month preceding January and February 1998, which were the months he allegedly purchased the items. She also stated that it was significant to USAA that Hobbs had negative balances in a bank account in December 1997 and January 1998. Slaw-iak testified that it was significant to USAA that Hobbs’s banking records do not indicate large cash transactions in January 1998. For instance, she stated that Hobbs alleged to have purchased $18,000 worth of china in January 1998; however, his banking records do not indicate an $18,000 transaction in January 1998.

Hobbs testified that while he was stationed in Germany his annual salary with the Army was $66,000. He stated that he earned an additional $17,000 per year performing automobile body repair work and $1,500 per month delivering papers for “Stars & Stripes.” He stated that his wife earned approximately $4,000 per month as a civilian employee for the government. The record indicates that Hobbs received $19,583.99 in insurance proceeds as the result of his father’s death, plus an additional gift of $7,200 from his father for a total of $26,783.99. Hobbs received an additional $12,500 in life insurance proceeds from the death of his two brothers. Hobbs also testified that he received a $14,000 loan from his wife.

Hobbs testified that USAA requested documentation in order to support his claim. Hobbs stated that he had no original documents for the missing items. He stated that the original receipts of the missing items and the certificates of authenticity were packed with the items. Hobbs testified that he used books and magazines in an attempt to identify and describe for USAA the items that were missing. Hobbs stated that he attempted to obtain a copy of the reverse side of the loss-prevention worksheet — the side he claims to have listed the items on — but was unable to do so because the moving company had declared bankruptcy and was no longer in business. Hobbs testified that he spent approximately $2,400 in an attempt to acquire documentation to substantiate his claim.

The parties presented conflicting evidence from which a jury could reasonably determine that Hobbs had indeed purchased the items in question, the value of those items, and that he had sufficiently substantiated his loss of those items, and, therefore, that USAA had breached its contract of insurance with Hobbs by failing to pay his claim. However, because the parties presented conflicting evidence from which conflicting inferences could be drawn, Hobbs was not entitled to a pre-verdict JML on his breach-of-contract claim. The evidence also indicates that USAA had at least a debatable reason for denying Hobbs’s claim. Accordingly, because Hobbs was not entitled to a pre-verdict JML on his breach-of-contract claim and because a debatable reason existed for denying his claim, USAA was entitled to a pre-verdict JML on the bad-faith claim under the “normal” case scenario.

The record indicates that USAA conducted a thorough and extensive investigation of Hobbs’s claim. USAA took several in-depth statements from Hobbs, including an evaluation under oath. USAA interviewed other witnesses and followed up with the shipping company involved. Ma-zac researched the items based on the descriptions provided by Hobbs in an attempt to substantiate Hobbs’s claim. USAA made repeated requests to Hobbs to provide the name and identity of any dealer or vendor from whom he had purchased the items, as well as to provide any original receipts to substantiate the claim. Finally, the evidence indicates that the decision to deny Hobbs’s claim was a collective one made after the claim was evaluated by the legal department and several management-level employees of USAA. We conclude that Hobbs failed to establish that USAA failed to properly investigate his claim or submit it to a cognitive evaluation before denying it. Accordingly, USAA was entitled to a pre-verdict JML on the bad-faith claim under the “abnormal” case scenario.

Because we have concluded that the trial court erred in submitting Hobbs’s bad-faith claim to the jury, we necessarily conclude that the trial court erred in submitting Hobbs’s punitive-damages claim to the jury-

We affirm the judgment as to the breach-of-contract claim and the award of compensatory damages and reverse the judgment as to the bad-faith claim and the award of punitive damages. The case is remanded for the trial court to enter an order consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

PITTMAN, J., concurs.

CRAWLEY, THOMPSON, and MURDOCK, JJ., concur in the result.

MURDOCK, Judge,

concurring in the result.

I concur in the result reached in the main opinion. I write separately to comment on the conclusions reached in note 4 of the main opinion.

That portion of the USAA renter’s policy addressed in note 4 contains the following provisions, among others:

“The entire policy is void if, whether before or after a loss, an insured:
“a. intentionally conceals or misrepresents any material fact or circumstance; or
“b. makes false statements or engages in fraudulent conduct relating to this insurance.”

Given the wording of this portion of the policy and the substance of the arguments and the record presented to us in this appeal, I am not prepared to interpret the policy, or to apply the policy language to the facts of this case, in the manner contemplated by note 4 of the main opinion. I see no need to address those issues in light of the failure of USAA to make a prever-dict motion for a JML at the close of all of the evidence.

CRAWLEY, J., concurs.

      . Hobbs withdrew the count alleging the tort of outrage.

      . Hobbs and Myong were subsequently divorced.

      . Coleman America Moving Services is also referred to in the record as "Covan America.”

      . Assuming the issue had been properly preserved, the record would support affirming the jury's verdict on the breach-of-contract claim. The misrepresentations alleged by USAA to have been made by Hobbs were not related to any items for which a claim was made under the USAA policy. Therefore, there was no misrepresentation of a "material fact or circumstance [nor] ... false statements or ... fraudulent conduct relating to this insurance.”

      . It should be noted that Hobbs has not cross-appealed to challenge the adequacy of the damages award of $65,000 rather than the claimed loss of $68,094.

      . Hobbs received money as the beneficiary on life insurance policies of his father and brothers.


source: Caselaw Access Project

author: CRAWLEY, Judge.

license: Public Domain

text:
    Peggy TATUM v. Dr. Alma FREEMAN and Trenholm State Technical College.
    2011071.
    Court of Civil Appeals of Alabama.
    March 28, 2003.
    Gary E. Atchison, Montgomery, for appellant.
    Constance S. Barker of Capell & Howard, P.C., Montgomery, for appellees.
   CRAWLEY, Judge.

Peggy Tatum appeals from the trial court’s dismissal of her complaint for declaratory and injunctive relief and her petition for a writ of mandamus filed against Dr. Alma Freeman, interim president of Trenholm State Technical College (“Tren-holm State”), and Trenholm State (hereinafter collectively referred to as “the defendants”). We dismiss Tatum’s appeal.

On September 14, 2001, Tatum filed a complaint against the defendants for declaratory and injunctive relief and also filed a petition for a writ of mandamus. On September 24, 2001, the defendants filed a motion to dismiss the complaint and the petition. On November 21, 2001, Tatum filed an amended complaint, including a petition for a writ of certiorari. On December 3, 2001, the defendants filed a motion to dismiss Tatum’s amended complaint. On May 6, 2002, the trial court entered an order dismissing Tatum’s complaint for declaratory and injunctive relief and her petition for a writ of mandamus. The trial court’s order further stated that it would review the case if Tatum filed an amended petition for a writ of certiorari within 10 days that complied with the requirements of § 41-22-20, Ala.Code 1975. On May 15, 2002, Tatum filed a motion to alter, amend, or vacate the trial court’s judgment; the trial court denied that motion on June 12, 2002. On July 23, 2002, Tatum filed a notice of appeal to this court.

The trial court’s May 6, 2002, order dismissed Tatum’s complaint for declaratory and injunctive relief and her petition for the writ of mandamus. The trial court did not dismiss Tatum’s petition for writ of certiorari, but rather provided Tatum an opportunity to amend her pleading. Furthermore, it did not enter a Rule 54(b), Ala. R. Civ. P., certification of finality as to the claims it had dismissed. Therefore, the trial court’s order did not dispose of all claims between Tatum and the defendants; it is a nonfinal judgment. “When it is determined that an order appealed from is not a final judgment, it is the duty of the Court to dismiss the appeal ex mero motu.” Powell v. Republic Nat’l Life Ins. Co., 293 Ala. 101, 102, 300 So.2d 359, 360 (1974)(eiting Taylor v. Major Fin. Co., 289 Ala. 458, 268 So.2d 738 (1972); Tarvin v. Tarvin, 266 Ala. 214, 95 So.2d 397 (1957)). Accordingly, we dismiss Tatum’s appeal.

APPEAL DISMISSED.

YATES, P.J, and THOMPSON and PITTMAN, JJ., concur.

MURDOCK, J., concurs in the result.

      . While the trial court's order also provided that "[a]ny pleadings filed [after 10 days of the date of its order] will be deemed untimely filed and will be denied,” the record discloses no subsequent entry of judgment, dismissal or otherwise, on Tatum's petition for a writ of certiorari.


author: YATES, Presiding Judge.

text:
    Jimmy Ray MARLOW v. Kenny WATERS and Carol Waters.
    2011267.
    Court of Civil Appeals of Alabama.
    March 28, 2003.

      Beverly Paschal Poston of Poston & Sulzby, L.L.C., Cullman, for appellant.
    S. Wayne Fuller of Fuller & Willingham, Cullman, for appellees.
   YATES, Presiding Judge.

On September 13, 1999, Jimmy Ray Marlow entered into a real estate sales contract with Kenny Waters and Carol Waters, pursuant to which the Waterses purchased from Marlow 52 acres of land upon which a house and two buildings were situated. The purchase price was $145,000. The contract further provided:

“1. Contract Contingent upon purchaser obtaining bank loan.
“2. Seller has 9 months to remove all tools, equipment, household goods from property. Closing atty to hold $10,000 of selling price until the above is completed.
“3. Purchaser has right to clean up property.”

The closing was on September 27, 1999; after the closing People’s Bank held a cashier’s check in the amount of $10,000 payable to Marlow and Kenny Waters.

On June 27, 2000, Marlow had removed all of his household goods and most of his personal property. On June 28, 2000, nine months after the closing, the Waterses refused to allow Marlow back on the property to remove the rest of his property. On August 8, 2000, Marlow sued the Wa-terses and Peoples Bank. In count one, Marlow alleged a breach of contract against the Waterses, because they would not allow him to remove his tools, equipment, and household goods, and sought $100,000 in damages. In count two, Mar-low alleged a breach of contract against the Waterses and sought specific performance to allow him to remove his personal property. In count three, he alleged conversion of personal property by the Wa-terses and sought the return of certain items listed in the complaint. In count four, Marlow alleged that the Waterses had breached the contract, because he had not been able to collect the $10,000 from Peoples Bank. Peoples Bank interpleaded the funds into court and was subsequently dismissed as a party. On October 13, 2000, the Waterses answered and counterclaimed, seeking damages under the Alabama Litigation Accountability Act, § 12-19-270 et seq., Ala.Code 1975.

On March 1, 2002, the Waterses moved for a summary judgment. On May 2, 2002, the trial court entered a summary judgment in favor of the Waterses as to count one and count two of Marlow’s complaint. Subsequently, the Waterses filed a second motion for a summary judgment, raising new grounds. On August 8, 2002, the trial court entered a summary judgment for the Waterses on count three. In its order, the trial court stated:

“Plaintiff has 42 days to appeal from the date of this order. In the event of an appeal, the Plaintiff must post a super-sedeas bond in the sum of $20,000. Failing to appeal or failing to post a supersedeas bond, the clerk shall pay to the Defendants the $10,000 which was paid by the Intervenor to the Court.”

On September 17, 2002, Marlow appealed.

Ordinarily, an appeal lies only from a final judgment. § 12-22-2, Ala.Code 1975. However, when multiple claims for relief or multiple parties are involved, the court may direct the entry of judgment as to one or more, but not all, of the claims or parties if it makes the express determination that there is no just reason for delay.

Rule 54(b), Ala. R. Civ. P., provides, in pertinent part:

“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, ... the court may direct the entry of a final judgment as to one or more but fewer than all the claims ... only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

The trial court’s August 8, 2002, order cannot be read to comply with Rule 54(b). We note that there have been cases where the trial court failed to include the language “there is no just reason for delay” or where the trial court did not state an “express direction” for the entry of final judgment, but the appellate court held that the Rule 54(b) certification was proper. See Schneider Nat’l Carriers, Inc. v. Tinney, 776 So.2d 753 (Ala.2000)(trial court was not required to add the omitted language “that there is no just reason for delay” in entering a summary judgment for the defendant in suit against multiple parties where the court made the judgment final in favor of the defendant and cited Rule 54(b), thereby implicitly incorporating the missing language into its order); Sho-Me Motor Lodges, Inc. v. Jehle-Slauson Constr. Co., 466 So.2d 83, 87 (Ala.l985)(trial court’s order was final judgment pursuant to Rule 54(b) where the court found there was “ ‘no just reason for delay in the entry of said final judgment’ ” even though the court did not expressly “direct” the entry of final judgment). However, we cannot say that the trial court’s order in the present case met the mandates of Rule 54(b). Therefore, we lack appellate jurisdiction to review the partial summary judgment absent a proper Rule 54(b) certification.

Even if the court’s order could be construed as complying with Rule 54(b), Marlow’s breach-of-contract and conversion claims (counts one, two, and three), would not be appropriate for certification under Rule 54(b). Marlow’s breach-of contract claim wherein he sought the $10,000 (count four) remains pending. “An order is not final if it permits a party to return to court and prove more damages or if it leaves open the question of additional recovery.” Grantham v. Vanderzyl, 802 So.2d 1077, 1080 (Ala.2001). In Dickerson v. Alabama State Univ., 852 So.2d 704 (Ala.2002), the trial court’s order dismissed all of the plaintiffs claims, except his claim seeking equitable relief for an alleged due-process violation. The trial court did not certify its order as a final judgment pursuant to Rule 54(b). The plaintiff appealed. The supreme court, citing Grantham, held that the order was not final for purposes of appeal where the question of additional recovery remained.

APPEAL DISMISSED.

CRAWLEY, THOMPSON, PITTMAN, and MURDOCK, JJ., concur.


author: SHAW, Judge.

text:
    Jason Phillip FORE v. STATE of Alabama.
    CR-01-1506.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.

      Meredith Shay Peters, Andalusia, for appellant.

      William H. Pryor, Jr., atty. gen., and Cecil G. Brendle, Jr., and Andy Scott Poole, asst, attys. gen., for appellee.
   SHAW, Judge.

Jason Phillip Fore appeals an order of the Covington Circuit Court directing him to pay $10,337.91 in restitution to, or on behalf of, Martha Jill Holland. We affirm.

Fore pleaded guilty to leaving the scene of an accident resulting in injury, a violation of § 32-10-1, Ala.Code 1975 (count I); reckless driving, a violation of § 32-5A-190 (count III); and attempting to elude a police officer, a violation of § 32-5A-193 (count V). He received a reverse-split sentence for his conviction under count I (two-and-a-half years’ probation followed by two years in prison); 90 days in the county jail for his conviction under count III; and six months in the county jail for his conviction under count V. All of the sentences were to run concurrently. In addition, Fore’s driver’s license was suspended, he was ordered to pay various fines, to participate in various rehabilitation programs, to pay certain costs and fees, and to pay $10,337.91 in restitution— $51.57 to Holland; $172.06 to Holland’s doctor; and $10,114.28 to the Alabama Crime Victims Compensation Commission (“ACVCC”), as reimbursement for its payment of funds to Holland.

Fore’s convictions arose out of charges stemming from a March 13, 2000, hit-and-run automobile accident involving Holland and her five-year-old daughter. Holland, who had had back surgery before the accident, suffered personal injuries and had to receive medical care as a result of the accident. Between July 19, 2000, and January 22, 2001, Holland received $10,114.28 from the ACVCC to assist her with expenses relating to her injuries. On March 9, 2001, Holland settled a civil action against Fore that she had filed on July 20, 2000; as part of that settlement she received $25,000, representing the limits of Fore’s automobile insurance coverage, and she executed a release of liability. Fore entered his guilty pleas on April 19, 2001. A restitution hearing was held on July 16, 2001, where defense counsel argued against the “imposition of restitution at all.” (R. 71.)

The trial court entered the following order:

“This cause came on for a restitution hearing following [Fore’s] previously-entered guilty plea. The Court heard the evidence presented and the arguments of the attorneys and based upon the same, the Court finds and Orders as follows:
“(1) That [Fore] caused the victim in the case, Martha Jill Holland, to suffer monetary loss as a result of his criminal conduct.
“(2) That as a part of a civil suit arising from the same facts, parties and circumstances, the victim’s net recovery from [Fore’s] insurance carrier was $14,700.00 after attorney fees and costs were deducted from a settlement in that case for the total of $25,000.00.
“(3) That a portion of the settlement amount in the civil matter was paid for the pain and suffering of the victim in this cause.
“(4) That the victim received, or had paid on her behalf, in addition to the civil suit recovery, $10,114.28 from the [ACVCC], which [Fore] should be required to repay as restitution to that entity.
“(5) That no part of the amount paid by the [ACVCC] was paid for the victim’s pain and suffering and that all of that amount was paid for actual expenses of the victim caused by [Fore].
“(6) That the issue concerning the civil release and its alleged bar against this Court ordering further restitution by [Fore] is resolved in favor of the victim insomuch as this Court finds that this victim was sufficiently damaged to warrant a finding that she is entitled [to] more compensation than was paid in the civil settlement after allowance for a portion of that amount as payment of pain and suffering which cannot be compensated through restitution.
“Therefore, it is, hereby,
“Ordered that [Fore], in addition to any other fines, costs or assessments previously ordered in this cause, shall pay as restitution in this cause the sums of $51.57 to Martha Jill Holland and $172.06 to Dr. D.E. Salisbury and $10,114.28 to the [ACVCC]. Said amounts shall be paid by [Fore] to the Clerk of this Court for transmittal to said recipient.
“It is further Ordered that this Court’s previous order of June 15, 2001, wherein probation was granted through a reverse-split sentence is not affected by the present order and [Fore] shall make all restitution payments by the date set forth therein.”

(C. 180-82.)

Fore does not appeal his convictions. We find the following two issues relating to the restitution order to be dispositive of this appeal: (1) Whether the release executed by Holland as part of the settlement of her civil action barred the trial court from ordering any restitution; and (2) whether Fore was legally obligated to reimburse the ACVCC for its payment to Holland.

Recently, this Court, in Roberts v. State, [Ms. CR-00-2134, November 22, 2002] — So.2d-(Ala.Crim.App.2002), held:

“Based on our examination of the [Restitution to Victims of Crimes Act, § 15-18-65 et seq., Ala.Code 1975], we conclude that restitution is not a claim that belongs to the victim; it is an important measure that the circuit court is statutorily obligated to employ as part of criminal sentencing — a measure that has both salutary remedial and rehabilitative characteristics. Restitution is a part of the criminal sentence rather than merely a debt between the defendant and the victim. Although one of the purposes of restitution is to make the victim whole, payment of restitution also advances the rehabilitative purposes of sentencing. For these reasons, and because the State was not a party to the release between Roberts and the parents, the release did not prevent the circuit court from ordering restitution to the parents. Private parties cannot settle a civil claim and thereby agree to waive the subsequent application of a criminal statute. Our conclusion in this respect is consistent with decisions from other jurisdictions that have considered this issue. See, e.g., State v. Iniguez, 169 Ariz. 583, 821 P.2d 194 (Ariz.Ct.App.1991); State v. Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Wis.Ct.App.1999); State v. Applegate, 266 Kan. 1072, 976 P.2d 936 (1999); Abeyta v. State, 42 P.3d 1009 (Wyo.2002); People v. Maxich, 971 P.2d 268 (Colo.Ct.App.1998); and State v. Kirby, 818 So.2d 689 (Fla.Dist.Ct.App.2002). We find the following discussion in People v. Bernal, 101 Cal.App.4th 155, 160-63, 123 Cal.Rptr.2d 622, 625-28 (Cal.Ct.App.2002), to be particularly persuasive:
“ ‘Although the record is ambiguous, it appears that the trial court based its ruling that respondent had satisfied his restitution obligation on the probation report, which stated: “[T]he defendant may be relieved of any restitution owed through probation if the victim signed any waiver forms from defendant’s insurance.” The trial court received a release signed by Russell “with respondent’s name on it.”
“ ‘We agree with appellant’s contention that the written release did not abrogate respondent’s restitution obligation because (1) a release by a victim cannot waive the People’s right to have a defendant pay restitution ordered as part of his sentence, [and] (2) the victim would be in an untenable position if he or she had to reject a settlement offer from a defendant’s insurance company that covers only a portion of the victim’s losses in order to preserve the uncertain possibility that the full amount might be recovered from the defendant ....
“ ‘A restitution order has objectives beyond simply indemnifying the victim. It also seeks to rehabilitate the defendant and deter [the] defendant and others. (People v. Crow (1993) 6 Cal.4th 952, 957, 26 Cal.Rptr.2d 1, 864 P.2d 80.) “Among other things, California’s restitution law ensures that amends are made to society for a breach of the law, serves a rehabilitative purpose, and acts as a deterrent to future criminality. [Citations.] Restitution ‘is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused. Such a penalty will affect the defendant differently than a traditional fine, paid to the State as an abstract and impersonal entity, and often calculated without regard to the harm the defen-
dant has caused. Similarly, the direct relation between the harm and the punishment gives restitution a more precise deterrent effect than a traditional fine.’ [Citations.]” (People v. Moser (1996) 50 Cal.App.4th 130, 135-136, 57 Cal.Rptr.2d 647.)
“ ‘While a settlement agreement with, and release of, a defendant’s insurance company may reflect a victim’s willingness to accept the amount paid in full satisfaction for all civil liability, it does not reflect the willingness of the People to accept that sum in satisfaction of the defendant’s rehabilitative and deterrent debt to society. A restitution order pursuant to a defendant’s plea is an agreement between the defendant and the state. (People v. Pitts (1990) 223 Cal.App.3d 606, 872, 273 Cal.Rptr. 757.) The victim is not party to the agreement, and a release by the victim cannot act to release a defendant from his financial debt to the state any more than it could terminate his prison sentence.
“ ‘Furthermore, the amount ordered as restitution need not mirror what a victim might obtain in a civil action. “There is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action.... ” (People v. Carbajal (1995) 10 Cal.4th 1114, 1121, 43 Cal.Rptr.2d 681, 899 P.2d 67.) Since the categories of loss recoverable by restitution and the dollar amounts ordered are not identical to the defendant’s civil liability, there is no reason that a release of civil liability should release a restitution obligation, just as a satisfied restitution obligation does not bar a civil action for further damages. ...
“ ‘As appellant points out, even the statutory goal of fully reimbursing the victim’s losses might be undermined if a civil settlement with a defendant’s insurance carrier barred further restitution. A victim might rationally choose to accept an insurance settlement for substantially less than his or her losses rather than risk the uncertain, or even unlikely, possibility that the defendant will pay the entire restitution amount. If a settlement release automatically terminated a defendant’s restitution obligation, the victim would lose all possibility of ever being made whole.’
“(Footnotes omitted [in Roberts ].)”

— So.2d at-.

Therefore, based on Roberts, we hold that the release in the present case did not bar the trial court from ordering restitution to Holland.

The second issue, although couched in terms of whether Fore was legally obligated to reimburse the ACVCC for its payment to Holland, actually relates more directly to a different issue — an issue this Court discussed but did not reach in Roberts — concerning the amount of restitution that is statutorily authorized when the victim has already received some compensation in a civil proceeding and the approach to be used in determining the appropriate amount of restitution. In the present case, the ACVCC, by virtue of its payment to Holland, was subrogated to her right, pursuant to the trial court’s order, to receive restitution from Fore. See § 15-23-14(d), Ala.Code 1975. The record indicates that the ACVCC properly sought to enforce its statutory subrogation right in the criminal-restitution proceedings. Therefore, restated, the dispositive issue is whether the trial court abused its discretion in awarding $10,114.28 in restitution to the ACVCC, on Holland’s behalf, pursuant to the Restitution to Victims of Crimes Act, § 15-18-65 et seq., Ala.Code 1975. See Morgan v. State, 589 So.2d 1315, 1321 (Ala.Crim.App.1991), in which this Court, citing Clare v. State, 456 So.2d 355 (Ala. Crim.App.1983), aff'd, 456 So.2d 357 (Ala.1984), stated that “[t]he particular amount of restitution in a case is a matter which must of necessity be left almost totally to the discretion of the trial judge — that discretion should not be overturned except in cases of clear and flagrant abuse.” After reviewing the record, we conclude that the trial court did not abuse its discretion.

Because the issue we did not reach in Roberts is presented in this case, we take this opportunity to specifically adopt the rationale used by the Wisconsin Court of Appeals in State v. Walters, 224 Wis.2d 897, 591 N.W.2d 874 (Wis.Ct.App.1999). We discussed the Wisconsin case in Roberts:

“As noted initially, the primary purpose of the [Restitution to Victims of Crimes Act, § 15-18-65 et seq., Ala. Code 1975 (‘the Act’),] is to effectuate the full compensation of the victim for certain pecuniary damages, as defined in § 15-18-66(2). Obviously the Legislature’s objective was to ensure that the victim could receive full compensation for certain losses as part of the criminal sentencing proceeding. However, in creating a procedure by which to ‘fully compensate’ a victim, the Legislature arguably did not intend for the victim to receive more compensation from the defendant than would actually satisfy the stated goal of full compensation, at least within the limits defined in the Act. Another, and perhaps more difficult question courts in other jurisdictions that have similar restitution acts have recognized concerns the amount of restitution that is statutorily authorized when the victim has already received some compensation in a civil proceeding. By way of example only, we quote from State v. Walters, [224 Wis.2d 897, 591 N.W.2d 874 (Wis.Ct.App.1999)], in which the Wisconsin Court of Appeals addressed the issue thusly:
“ ‘In determining the amount of restitution, a court may require a defendant to pay only special damages sustained by the victim, which are substantiated by evidence in the record. A court is prohibited from ordering restitution for any general damages of the victim. Section 973.20(5)(a), Stats.; State v. Stowers, 177 Wis.2d 798, 804-05, 503 N.W.2d 8, 10 (Ct.App.1993). This limitation restrains the circuit court from assessing restitution for damages intended to generally compensate the victim for such things as pain and suffering, anguish or humiliation. Id. However, any readily ascertainable pecuniary expenditure paid out because of the crime is appropriate as special damages. Id. Medical expenses and lost earnings are types of special damages. Id. at 805, 503 N.W.2d at 10.
“ ‘A restitution order does not limit or impair the right of a victim to sue for civil damages; however, the amount of restitution paid to a victim in a criminal proceeding may be a setoff against a like amount in the judgment in a companion civil case. See § 973.20(8), Stats.; Olson v. Kaprelian, 202 Wis.2d 377, 383, 550 N.W.2d 712, 715 (Ct.App.1996). No Wisconsin appellate case has directly addressed whether a payment in a civil case can be a setoff against either the total amount of special damages found by the court or against the amount of restitution ordered at the conclusion of a restitution hearing. The supreme court indicated in [State v.] Sweat[, 208 Wis.2d 409, 561 N.W.2d 695 (1997),] that a setoff is appropriate for the circuit court to consider, but it did not discuss how to apply it. In addressing this choice, we consider where a setoff will best promote the State’s dual purposes of achieving its penal objectives and making the victim whole for the special damages sustained. We conclude that those legislative objectives will be best served by applying any setoff which a circuit court determines is appropriate to the total amount of special damages which the victim has sustained.
“ ‘But how does the circuit court determine whether a setoff of any amount is appropriate? In [State v.] Behnke[, 203 Wis.2d 43, 553 N.W.2d 265 (Ct.App.1996) ], we examined a defense raised to limit the amount of the victim’s medical expenses which the defendant could be ordered to pay. We declined to make the reduction Behnke requested because we determined he had the burden of establishing facts sufficient to justify the circuit court’s lowering the amount of medical expenses he should be required to pay, and he had failed to meet that burden. We explained that:
“ ‘ “[BJefore the trial court can accurately assess a defense recognized by our law of civil litigation, the defendant must present a tangible record with which the trial court can exercise its discretion. Here, while Behnke articulated his dual legal theories, he did not point to any specific facts from which the trial court could have grounded the downward adjustment he desired.”
‘Behnke, 203 Wis.2d at 58-59, 553 N.W.2d at 272-73. The allocation of the burden of proof in a restitution proceeding because of payments made in a companion civil proceeding has not been addressed by a Wisconsin appellate court, but it has been addressed by federal courts under the Victim and Witness Protection Act (VWPA), on which Wisconsin’s restitution statute is based, in part. For example, in United States v. Sheinbaum, 136 F.3d 443 (5th Cir.1998), the court concluded that because the defendant had the strongest incentive to litigate whether a setoff should be afforded during a restitution proceeding, the burden of proof on that issue should he with the defendant. Id. at 448. We find the reasoning of Sheinbaum persuasive. Therefore, based on Behnke and the reasoning from Sheinbaum, we conclude that Walters had the burden of proving facts sufficient to prevail on the defense she raised, that of setoff. Because Olivas suffered general, as well as special damages, that burden required Walters to prove what part, if any, of the $25,000 payment made to Olivas was paid for special damages.
“ ‘At the restitution hearing on February 6, 1998, the circuit court found that Olivas had proven $40,835.17 in special damages. In reasoning whether some part, or all of the $25,000 should be deducted from that amount, the circuit court stated:
“ ‘ “There is a second issue raised and that is whether the amount of settlement paid previously to the Olivases by Ms. Walters should be deducted in some manner from that total [special damages] ....
“ ‘ “You could say that [settlement] money was all applied to the expenses, but it is really, it’s kind of mixing apples and oranges.”
“ ‘The circuit court considered whether some of the $25,000 was paid for general damages, which the court found had been incurred, but for which damages the record was insufficient to determine their amount. It also considered whether a setoff of the $25,000 was due against the total amount of Olivas’s special damages; or whether a setoff of that payment against some combination of the two types of damages was warranted. It reasoned that because the testimony had established general damages of an indeterminate amount, it would be unfair to make a setoff of the $25,000 settlement entirely against Olivas’s special damages.
“ We conclude the circuit court was correct in refusing to make a setoff. Walters had the burden of proving what portion of the $25,000 payment was made for special damages, because in this case the record before the court showed that Olivas had suffered both general and special damages. However, Walters provided no such proof; therefore, the circuit court had no choice but to conclude that none of the payment should be applied against special damages. Accordingly, we affirm the $24,000 of restitution ordered.’
224 Wis.2d at 905-09, 591 N.W.2d at 877-790 (footnote omitted). For other examples of how appellate courts have approached this issue, see State v. Iniguez, [169 Ariz. 583, 821 P.2d 194 (Ariz. Ct.App.1991)]; State v. Applegate, [266 Kan. 1072, 976 P.2d 936 (1999)]; State v. Belfry, 416 N.W.2d 811 (Minn.App.1987); People v. Salas, 42 P.3d 68 (Colo.App.2001); but see People v. Clifton, 172 Cal.App.3d 1165, 219 Cal.Rptr. 904 (1985).”

— So.2d at -.

In adopting the Wisconsin rationale, we note that the allocation of the burden of proof is consistent with the burden of proof that presently exists in cases that do not involve a request to credit a civil settlement or a civil judgment against an amount of pecuniary damages that may be subsequently ascertained in a restitution hearing. See, e.g., Morgan v. State, 589 So.2d at 1321, in which this Court noted that the defendant had failed to rebut sufficiently the State’s evidence with respect to the amount of restitution that was due the City of Jasper. We also note that in Roberts the State relied on Patterson v. State, 518 So.2d 809 (Ala.Crim.App.1987), in support of its argument that under § 15-18-75, Ala.Code 1975, the appellant was not entitled to offset the amount of restitution by the amount of the settlement paid. To the extent that Patterson is inconsistent with our holding today, it is hereby overruled.

In the present ease, the transcript of the restitution hearing reflects that two primary issues were addressed at the restitution hearing — whether Holland had suffered in excess of $25,000 in damage for pain and suffering arising from her injuries and whether Fore was legally obligated to reimburse the ACVCC. The transcript indicates that the attorney who had represented Holland in the settlement of her civil action testified, without objection, that although no part of the $25,000 settlement amount was specifically allocated to satisfy’ any particular damages claim, e.g., pain and suffering, medical bills, etc., it was nonetheless his opinion that Holland’s case would have warranted a settlement of at least $150,000 and that “the most exposure that [Fore] and the insurance company had was on the pain and suffering that [Holland] had on the table and that she could prove.” (R. 56.) Holland’s attorney testified in pertinent part as follows:

“[PROSECUTOR]: All right, sir. And you represented the victim here, Martha Jill Holland?
“[HOLLAND’S ATTORNEY]: I did.
“[PROSECUTOR]: And the defense has — We’re here on a restitution issue, and the defense has introduced a general release of claims. Was there any discussion with the defendant or with his attorney regarding whether or not that this compensation was for pain and suffering or that this compensation was to pay for her medical expenses or how it would be affected by her rights as a victim to restitution in the criminal case?
“[HOLLAND’S ATTORNEY]: Well, we talked about that. And actually, the salient feature of her claim was the pain and suffering. She had ligament injury and soft tissue injury, and that is where she was being treated primarily. And of course, we talked about the value of this case. They only had $25,000 policy limit. And beyond that, to maintain a suit against the individual that had injured her we didn’t see any — much point in that, so she got the policy limits. And the salient feature of her claim was the pain and suffering. The case was worth a great deal more than she actually got really.
“[PROSECUTOR]: Was there any discussion then that she would be releasing him from the requirements of restitution under the criminal procedure?
“[HOLLAND’S ATTORNEY]: No.
“[PROSECUTOR]: The two cases were not linked — the criminal aspects were not linked to her civil claims?
“[HOLLAND’S ATTORNEY]: No.
“[PROSECUTOR]: Was there any agreement with the defendant in this case, Mr. Fore, that as a result of the civil claim, she was giving up anything or attempting to give up anything regarding the criminal case?
“[HOLLAND’S ATTORNEY]: No. Absolutely not.
“[PROSECUTOR]: Was this general release to indicate that she was — that she was to pay Victims Compensation out of her award or that she was responsible in any way as a result of — would in any way relieve him of any duties under the criminal law as a result of this settlement?
“[HOLLAND’S ATTORNEY]: No.
“[PROSECUTOR]: Was it any way specifically designed to be — to pay her medical expenses or just it was a general sum for her pain and suffering?
“[HOLLAND’S ATTORNEY]: Well, I thought that the majority of the benefit to her was the pain and suffering. She was still undergoing treatment for that aspect of her injury at the time of the settlement.
“[FORE’S ATTORNEY]: Did you make a letter of demand to the attorneys who were representing Mr. Fore in that civil suit?
“[HOLLAND’S ATTORNEY]: No. I think they subpoenaed the medical records and when they got those they— They had been offering a considerable amount less than the policy limits. When they got those then they decided it would be most prudent if they paid the policy limits.
“[FORE’S ATTORNEY]: So you never issued any kind of a letter setting out the damages your client had sustained?
“[HOLLAND’S ATTORNEY]: No.
“[FORE’S ATTORNEY]: They just evaluated the case on their own and offered you the policy limits?
“[HOLLAND’S ATTORNEY]: Well, we probably discussed the matter, but I don’t think that there’s a demand letter. I don’t believe so.
“[FORE’S ATTORNEY]: During your discussions, did you at any time discuss the fact that there were $10,000 in compensatory damages?
“[HOLLAND’S ATTORNEY]: Well, I’m sure we did.
“[FORE’S ATTORNEY]: Do you — In your mind when you were conversing with your client — and I’m not asking you about those conversations. I’m asking you about your own, in your mind. Excuse me. Did you see this $25,000 settlement as being in part to reimburse her for the compensatory damages?
“[HOLLAND’S ATTORNEY]: Well, you could attribute it to anything you wanted to. I just said to you that the— that the most exposure that this gentlemen and the insurance company had was on the pain and suffering that this lady had on the table and that she could prove.
“[FORE’S ATTORNEY]: Was there anything in this general release or in any of the other communications between you and the other attorneys that stipulated that all $25,000 of this was going to be for pain and suffering?
“[HOLLAND’S ATTORNEY]: No.
“[FORE’S ATTORNEY]: Was it your client’s understanding that all $25,000 was going to be for pain and suffering?
“[HOLLAND’S ATTORNEY]: I don’t know what she understood. But it was — it was — the conversation between us in looking to the trial of this case would have been and was that the pain and suffering and the treatment thereof was the most salient feature of her lawsuit, except for the punitive. This case was one that would carry a pretty heavy load of punitive damages, too.
“[FORE’S ATTORNEY]: During your evaluation of this case, did you review Mrs. Holland’s medical records and bills?
“[HOLLAND’S ATTORNEY]: I’m sure I had them.
“[FORE’S ATTORNEY]: And as you were negotiating with the other side, did you have a figure in your mind that was based on those medical bills?
“[HOLLAND’S ATTORNEY]: Yes.
“[FORE’S ATTORNEY]: So you—
“[HOLLAND’S ATTORNEY]: I had a figure in my mind.
“[FORE’S ATTORNEY]: And were they — Was that figure based at least in some part on the amount of the medical bills?
“[HOLLAND’S ATTORNEY]: Primarily based on the pain and suffering and the treatment she was undergoing. But I evaluated this case at not less than $150,000, but the money wasn’t there. The pockets weren’t there. It was in her best interest to go ahead and get it out of the way.
“[FORE’S ATTORNEY]: But do you agree that in part you recognize that there were medical bills and that you used the value of those medical bills—
“[HOLLAND’S ATTORNEY]: There were medical bills that if I tried the case I would put in evidence.”

(R. 52-54, 55-58.)

Although Fore thoroughly cross-examined both Holland and her attorney at the restitution hearing, the trial court could have inferred from the testimony of Holland’s attorney that Holland had suffered in excess of $25,000 in damage for pain and suffering arising from her injuries and, therefore, that the settlement was not sufficient to compensate Holland for her pecuniary losses that had been paid by the ACVCC. In this respect, the trial court specifically stated in its restitution order that it found Holland to have been “sufficiently damaged to warrant a finding that she is entitled [to] more compensation than was paid in the civil settlement.” (R. 181.) Based on the record before us, we cannot hold that the trial court abused its considerable discretion in concluding that none of the $25,000 settlement amount should be applied against the pecuniary loss suffered by Holland and paid by the ACVCC. Accordingly, we affirm the trial court’s restitution order.

AFFIRMED.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ., concur.

      . One of the conditions of his probation was that Fore was ordered to serve eight consecutive weekends in the county jail.

      . Essentially, Fore argues that, even if the release was not a bar to the State’s request for restitution, the $25,000 settlement amount fully compensated Holland. Citing § 15-23-14(a), (b), and (c), Ala.Code 1975, Fore maintains that Holland was legally obligated to reimburse the ACVCC and that the trial court’s restitution order resulted in double compensation to Holland. However, as discussed infra, this argument is based on the erroneous premise that the $25,000 settlement amount fully compensated Holland for her pecuniary losses.

      . The following colloquy is reflected in the record:
      "THE COURT: State of Alabama v. Jason Phillip Fore. Are y’all ready?
      "[PROSECUTOR]: Yes, sir.
      "THE COURT: Okay.
      "[PROSECUTOR]: This is where we are: We've got a restitution amount, and the fact that these are related to the — to her injuries in this particular case is really not an issue. And I’m going to put her on to testify that these charges are not included in this. And she still has some doctor — supposed to go back to Dr. Boyington, so if it’s not in here — but we can kind of limit—
      "THE COURT: The issue—
      "[PROSECUTOR]: The issue is whether or not there’s been—
      "THE COURT: — is whether or not—
      “[PROSECUTOR]: — what’s been paid in the civil case should — whether that was pain and suffering or whether it’s for this or whether it’s for the Court to decide.
      "[FORE’S ATTORNEY]: And also, who’s to pay back the Victims Compensation Fund.
      "THE COURT: Okay.
      “[PROSECUTOR]: State calls Mrs. Holland.”
      (R. 36-37.)

      . Fore does not dispute the trial court’s finding that Holland actually incurred $10,337.91 in expenses relating to her injuries. Fore argues only that he is not obligated to pay any restitution as a matter of law.

      . We note that the trial court stated in its order that "a portion of the settlement amount in the civil matter was paid for the pain and suffering of the victim in this cause” (R. 180); however, given the court's reference to the $10,300 in attorney fees and costs that were deducted from the settlement amount, as well as its ultimate finding that Holland had not been compensated for the $10,114.28 that had been paid by the ACVCC, we do not read the court's order as necessarily being internally inconsistent, i.e., by suggesting that a portion of the $25,000 settlement could have been allocated for pecuniary loss while at the same time directing Fore to reimburse the ACVCC for the full amount of its payment to Holland. Instead, considering the testimony presented at the restitution hearing and the trial court’s reference to Holland's "net recovery” from the settlement amount (R. 180), we think the trial court was merely recognizing that only a portion of the $25,000 settlement amount would actually go to reimburse Holland for her pain and suffering.


author: COBB, Judge.

text:
    Huey Richard MORDECAI v. STATE of Alabama.
    CR-01-1034.
    Court of Criminal Appeals of Alabama.
    March 21, 2003.

      Stephen A. Strickland, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and Robin Blevins, asst. atty. gen., for appel-lee.
   COBB, Judge.

Huey Richard Mordecai was convicted by a jury of assault in the first degree, a violation of § 13A-6-20, Ala.Code 1975. He was sentenced as a habitual felony offender to 20 years' imprisonment. We reverse.

The evidence at trial tended to establish the following. Mordecai and the victim, Larry Garrigan, were regular customers at a small bar located in Birmingham. Two or three weeks before this incident took place, Mordecai made a flippant sexual remark to a female patron, Lisa. Lisa told Garrigan about the remark and allegedly asked Garrigan if he would speak to Mor-decai about the comment. Garrigan testified that he asked Keith Cowherd, a friend of Mordecai’s, to speak to Mordecai about the remark he made to Lisa. He acknowledged that he might have told Cowherd that he wanted to talk to Mordecai about what he had said to Lisa.

Garrigan testified that he went to the bar on the afternoon of October 20, 2000, and that Mordecai was already inside the bar. He said that Mordecai yelled across the room, “I understand you want to talk to me.” (R. 87.) Garrigan told Mordecai that he wanted to talk, and he suggested they go outside. Garrigan said that Mor-decai denied making any sexual advances toward Lisa, and he told Mordecai that when Lisa came to the bar later that day, he would talk to her about it. Garrigan then left the premises, and returned approximately 15 minutes later.

Garrigan testified that, when he returned to the bar, Mordecai was playing pool with another man. Garrigan said that he sat at the bar, and his back was to the pool table. He testified that he heard Mordecai say something like, “You been wanting some of me?” (R. 91.) Garrigan said that he turned his head, and Mordecai hit him across the eye and nose with a pool cue. Mordecai then began hitting him with his fists, Garrigan said. Garrigan said that he grabbed Mordecai and “kind of picked him up and throwed [sic] him on the ground.” (R. 92.) He admitted that he lifted Mordecai up in the air and that Mordecai’s feet were off the ground before he threw him to the floor. Garrigan held Mordecai down on the floor until Keith Cowherd broke up the altercation. Mor-decai then left the bar. As a result of the fight, Garrigan suffered injuries to his eyes and broken bones in his face. His right eye was surgically removed. He did not initially give police the information that would identify Mordecai, but he did so within one month after the assault occurred.

The bartender, Larry Latham, testified that the bar is small, and he agreed with the description of it as “a hole-in-the-wall bar.” (R. 158.) Latham said that, when Mordecai entered the bar on the day of the assault, he told Mordecai, “Keith Cowherd told me to watch out for Larry Garrigan; that he was going to jump on [Mordecai].” (R. 164.) Latham said that he later heard what sounded like a fistfight and “hollering,” and when he turned to look, he saw Garrigan and Mordecai on the ground.

Keith Cowherd testified that, when he entered the bar on the afternoon of the incident, Garrigan and Mordecai were already at the bar. When he saw Mordecai, who was playing pool, Cowherd said to him, “There is Garrigan. You know, you better watch out,” because the bartender had been telling him that Garrigan was going to “get” Mordecai for making the provocative statement to Lisa. Cowherd had been telling Mordecai for approximately two weeks that Garrigan was going to “get” him. Cowherd said that he walked away from Mordecai and was playing the slot machine when he heard a commotion. When he turned around, he said, he saw Garrigan on top of Mordecai, and both men were bleeding. The people in the bar asked him to break it up, and he grabbed Garrigan, but could not separate them, so he “laid them back down.” (R. 182.) Cowherd said “finally they quit,” and he used Mordecai’s torn shirt to help the men wipe their faces. Mordecai left the bar, and told Cowherd to keep Garri-gan from chasing after him.

Robert Brazeal testified that he had heard rumors in the bar that Mordecai had “better watch himself’ because Garrigan was looking for him. (R. 215.) Garrigan is a much bigger man than Mordecai, he said. Brazeal was playing pool with Mor-decai before the fight occurred. He said that his back was turned to Mordecai and Garrigan as he made a play at the pool table, and he heard a “ruckus.” When he turned around, he saw Garrigan on top of Mordecai on the floor. Cowherd intervened, and the two men got up.

Reeves Cowherd testified that, on the day of the incident, Garrigan spoke to him in the parking lot. Garrigan asked Reeves if he knew Mordecai, and told him what Mordecai had said to Lisa. Reeves told Garrigan that Mordecai had probably been kidding, but he said that Garrigan responded, “ T don’t care whether he was kidding or not. I am going to beat his ass for saying it.’ ” (R. 237.) Reeves said that when he entered the bar, he told Mordecai to watch out for Garrigan because he had told Reeves that he was going to “whoop his ass.” (R. 238.) Reeves said that he later saw Mordecai and Garrigan outside the bar. They talked, shook hands, and returned to the bar. The witness’s perception was that the two men had resolved the issue regarding Lisa. Reeves left the bar before Mordecai and Garrigan fought.

Richard Mordecai testified in his defense. He acknowledged making a sexual remark to Lisa two or three weeks before this incident occurred. He said he meant it as a joke, and he believed that Lisa did not think anything about the remark, either. Mordecai said that, when he entered the bar on October 20, Larry Latham took him aside and warned him to watch Garri-gan. Latham told Mordecai that Garrigan “ ‘says that he is going to kick your ass, has been looking for you because of what you said to Lisa.’ ” (R. 249.) Mordecai told Latham that he would talk to Garri-gan about what he had said to Lisa, and they would get the matter settled. La-tham told Mordecai to watch Garrigan because he was dangerous. Mordecai said that Reeves Cowherd then came into the bar and told him that Garrigan was outside the bar and had just said that he was going to “whoop” Mordecai. Mordecai told Reeves that he would talk to Garrigan about what he had said to Lisa; Reeves, like Latham, warned Mordecai to watch Garrigan because he was dangerous.

Mordecai said that, soon after Garrigan came into the bar, he told Garrigan that he had heard that Garrigan was concerned about what he had said to Lisa, and that there had been nothing to the remark. Garrigan suggested they go outside to talk, and Mordecai agreed. Robert Bra-zeal told Mordecai to watch Garrigan. Mordecai said that he explained the incident involving Lisa, and told Garrigan that Garrigan was not married to Lisa and that Lisa’s boyfriend was not angry about the remark. Garrigan told him that he was a friend of Lisa’s, and that Mordecai should not have made the remark. Mordecai said he had meant nothing by it, and told Garri-gan that he did not want any problems. Garrigan told Mordecai that he was not seeing Lisa anymore, and that he did not care. Mordecai believed that the discussion had resolved the issue between them, and he returned to the bar and began playing pool.

Garrigan entered the bar'later, and he sat near the pool table. Mordecai said that Keith Cowherd came up to him and warned him that Garrigan was about to “get” him. Mordecai told Cowherd that he had already spoken to Garrigan and that they had resolved the issue. Cowherd told Mordecai, “ ‘No, watch him.’ ” (R. 260.) Mordecai testified that he turned to look at Garrigan and when he did, Garrigan lunged at him with his fist “rared back,” ready to strike Mordecai. (R. 261.) Mor-decai said that he swung at Garrigan, and Garrigan swung at him. When defense counsel asked Mordecai if he swung at Garrigan to protect himself, Mordecai testified, “Well, yes, sir. Natural instinct. And, you know, I had been scared — I had been threatened. I was in imminent danger.” (R. 262.) Mordecai was holding the pool cue when Garrigan attacked him, he said, and when he swung at Garrigan, he hit him in the face with the cue.

Mordecai said- that Garrigan hit him in the face with -his fist at approximately the same time he hit Garrigan. Immediately after the initial blows were struck, Morde-cai said, due to Garrigan’s size, height, and weight, they ended up on the floor, and Garrigan was on top of him. After they got up from the floor, he wiped his face and walked out the back door. He told Keith Cowherd to be sure that Garrigan did not follow him.

Mordecai testified that he struck Garri-gan only in self-defense, and that if someone was coming at him and struck him, he would strike back. He further stated that, given the configuration of the bar, he could not have avoided Garrigan after Garrigan lunged at him. Mordecai repeated on cross-examination that he swung at Garri-gan to protect himself when Garrigan came at him.

During the jury charge conference, the trial court stated that it would not give the self-defense instruction requested by the defense. Defense counsel argued that, under the circumstances, the self-defense instruction was mandated, because Morde-cai had asserted that he was defending himself against the attack of a larger man who was swinging a fist at him. Defense counsel further noted that Mordecai’s testimony established that he was afraid of Garrigan. The prosecutor stated that she opposed the self-defense instruction because the undisputed testimony in the ease was that Garrigan was unarmed. Defense counsel later asked the trial court to reconsider his request for a self-defense instruction, and stated that caselaw held that if an unarmed person strikes a person who is armed, the aggressor takes the victim as he finds him, and the victim has a right to defend himself. The trial court again declined to give the jury charge on self-defense. The jury returned a guilty verdict. This appeal follows.

Mordecai contends that the trial court erred to reversal when it denied his requested jury instruction on self-defense. We agree.

Section 13A-3-23, Ala.Code 1975, provides, in pertinent part:

“(a) A person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for the purpose.”

Judge Bowen, writing for this Court in King v. State, 478 So.2d 318 (Ala.Crim.App.1985), set forth the oft-repeated rules regarding a trial court’s obligation to charge a jury on self-defense when the evidence presents the claim:

“The general rule is that ‘every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.’ Chavers v. State, 361 So.2d 1106, 1107 (Ala.1978). If there is ‘any evidence, however slight, tending to support’ that the defendant acted in self-defense, the issue should be submitted to the jury. King v. State, 71 Ala. 1, 4 (1881). In most cases, the issue of self-defense is one of ultimate fact solely for determination by the jury, Domingus v. State, 94 Ala. 9, 11 So. 190 (1892), however ‘unsatisfactory and inconclusive to the judicial mind’ the evidence of self-defense may appear. Burns v. State, 229 Ala. 68, 70, 155 So. 561, 562 (1934).
“However, the court should not instruct on the law of self-defense where there is no evidence to sustain the plea. Raines v. State, 455 So.2d 967, 974 (Ala.Cr.App.1984); Tarver v. State, 137 Ala. 29, 34 So. 627 (1903); C. Gamble, McElroy’s Alabama Evidence, § 457.02(5) (3d ed.1977). ‘[I]n the absence of all evidence having a tendency to show that at the time of the killing the accused was in imminent peril of life, or grievous bodily harm, or of the existence of circumstances creating in his mind a reasonable belief of such peril, ... these instructions were abstract.’ King, 71 Ala. at 4-5. A trial judge may properly refuse to charge the jury on self-defense where he determines that ‘the defendant could not set up self-defense under the facts.’ Consford v. State, 15 Ala.App. 627, 634, 74 So. 740, 743, cert. denied, 200 Ala. 23, 75 So. 335 (1917).
“In determining whether to charge the jury on self-defense, ‘evidence most favorable to the defendant should be considered and if there is the slightest evidence tending to prove a hostile demonstration which can be reasonably interpreted as placing the accused, at the time of the killing, in apparent imminent danger to life or other grievous bodily harm then the matter of self-defense becomes a question for the jury.’ Byrd v. State, 257 Ala. 100, 104, 57 So.2d 388, 391 (1952).”

King v. State, 478 So.2d at 319 (emphasis added). See also Carter v. State, 843 So.2d 812, 813 (Ala.2002).

The record demonstrates far more than “slight evidence” warranting an instruction on self-defense. Several witnesses testified at trial that Garrigan expressed his intention to “whoop” or “get” Mordecai for a remark he had made to a female bar patron. Several witnesses testified that they warned Mordecai to watch out for Garrigan, because they believed he intended to attack Mordecai. Evidence established that Mordecai had been warned that Garrigan, who was a larger man than Mor-decai, was dangerous. The bar’s limited space prevented Mordecai from safely retreating from what he testified to be Garri-gan’s sudden lunge for him. Mordecai testified that it appeared that Garrigan was prepared to strike him with his fist, and Mordecai testified that he was frightened and perceived that he was in “imminent danger” from the attack.

The record presented ample testimony-tending to support Mordecai’s claim that he acted in self-defense. Because the evidence was presented, the issue of self-defense should have been submitted to the jury for determination. The trial court eviscerated Mordecai’s entire defense when it refused to instruct the jury on self-defense. Because Mordecai presented evidence in support of his self-defense claim, the trial court erred when it refused to give the requested instruction to the jury. This error denied Mordecai a fair trial, and his conviction must, therefore, be reversed and the cause remanded. As our Supreme Court aptly stated decades ago, “However unsatisfactory and inconclusive to the judicial mind, yet there was some proof affording tendencies in support of this plea. The inferences to be drawn therefrom were for the jury, and not the court. We feel impelled therefore to pronounce this action of the court as error to reverse.” Burns v. State, 229 Ala. 68, 70, 155 So. 561, 562 (1934).

REVERSED AND REMANDED.

McMILLAN, P.J., and SHAW, J., concur; BASCHAB and WISE, JJ„ dissent, without opinion.

      . This case was originally assigned to another judge. It was reassigned to Judge Cobb on January 21, 2003.

      . The State, in its brief to this Court, notes that Mordecai felt threatened by Garrigan because of his size and because he was worried that Garrigan might aggravate a serious head injury Mordecai had previously suffered. (State’s brief at p. 20.) The record indicates that defense counsel attempted to elicit testimony from Mordecai regarding a head injury he had sustained previously and to the effect that death could result if he sustained a blow to the head. (R. 267-68, 297.) The trial court precluded this evidence, although it is not clear to this Court why the testimony was not allowed.