United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3239

___________ Franklin D. Gregg, * * Appellee, * Appeal from the United States * District Court for the Eastern v. * District of Arkansas. * Allstate Insurance Company, * * Appellant. *

___________ Submitted: June 13, 1997 Filed: October 6, 1997

___________ Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circui t Judges.

___________ MORRIS SHEPPARD ARNOLD, Circuit Judge.
In this diversity action, Allstate Insurance Company appeals from a judgmen t entered in favor of Franklin D. Gr egg after a second trial and seeks review, as well, of the di strict court's order granting the motion for a new trial after the first trial of th e case ended in a judgment in Allstate's favor. We reverse the order granting a second trial and remand with directions to enter judgment on the first verdict.-2- I. Mr. Gregg s ued Allstate to recover under his insurance policy for the total loss of his house and its contents as a result of a fire. In addition, Mr. Gregg sough t damages ag ainst Allstate for its alleged bad-faith refusal to pay his claim under th e poli cy. Allstate offered the affirmative defenses that Mr. Gregg misrepresented hi s prior loss history on the insurance application, that he misrepresented this same los s hist ory in a deposition taken after the fire, and that he overstated the number o f personal belongings that perished in the fire.
In the first trial, the district court initially denied Allstate's motion to dismiss the claims a t the end of Mr. Gregg's case; after Allstate began to present its case to th e jury, however, the court dismissed the bad-faith claim. The court also indicated that it would direct a verdict against Allstate on its misrepresentation defenses that wer e based on the prior loss history. The o nly question that went to the jury, therefore, was whether Mr. Gregg misrepresented in a material way the p ersonal belongings that were in the house at the time of the fire. The court instructed the jury, moreover, that it "was not proper to mention, or raise, the specter of arson in this case" and that the jur y should therefore "not le t any suggestion, innuendo, suspicion, or conjecture that arson may have been involved in this case to enter your minds or affect your deliberations in any way." The jury found for Allstate and the district court entered judgment on the verdict. The court subsequently granted Mr. Gregg's motion for a new trial on the ground that Allstate had introduced the subject of arson into the trial in a prejudicial way. The subject of arson, or at least the implication that arson was the cause of the relevan t fire, arose at various times during the first trial. In response to a motion i n limine filed by Allstate, the d istrict court ruled that Mr. Gregg could not testify that he had not been charged with or convicted of arson. The court noted at that time,-3-

however, tha t whether "a reference is permitted with respect to whether or not th e defendant is asserting that civil defense of arson, that's a different question and it will depend esse ntially upon -- you know, I don't know how it would develop here." At a pretrial con ference, Allstate explained that it might rely on circumstantial evidence of arson in the course of its defense: "We are alleging fraud as a defense as called for in the polic y. It's not exactly an arson defense, but I think certainly there will b e circu mstantial evidence that that may have occurred." This remark passed withou t comment from the court or objection from Mr. Gregg.

A llstate's opening statement rehearsed an array of circumstantial evidence that it intende d to introduce tending to show that someone deliberately set the fire a t Mr. Gregg's house . This included the fact that Mr. Gregg invested only $5,000 of his
own money in the house, that he insured it for "lots more than it was worth," that his plan to build a house for resale was frustrated by his inability to come to an agreement with the local plan ning board, and that the fire started soon after the last person in the house left it. Allstate also mentioned arson in its opening statement i n speaking of what its fi re investigator had found: "Now what he could not do, ladies and gentlemen, " counsel said, "was to say this was an arson fire. He couldn't do it. He could no t determine that this was an elec trical fire. He could not determine exactly what started this."
After Allstate's opening statement, to which Mr. Gregg made no objection, the district court expressed to the parties its concern about the imp lications of arson, noting that "[a]t some point if it continues this way, I'm going to have to make it clear what the defendant is depending on, what the basis of the defense is, and [that] it has to do with alleged misrepresentations in connection with the application and after the fire with respectto the deposition and also with respect to what the proof of loss showed was in the house."-4-

The subject of arson arose next during the cross-examination of Richard Stark (the boyfriend of Mr. Gregg's daughter), who was the last person in the house before the fire. Allstate asked, "Do you remember anything about having a conversation with Mr. Gregg and him asking you to burn that place?" When Mr. Stark denied having any
suc h recollection, Allstate asked whether Mr. Stark had "told anyone since then ... in yourf amily that he paid you to burn that place?" Mr. Stark then denied making an y such statement.
After this line of questioning, which also was not objected to, the district court entirely of its own volition acted to establish that there was some basis for the questions about arson. The c ourt took testimony by telephone, outside the presence of the jury, from a police officer who was said to be the source of the info rmation that provided the basis for the questi ons. After that conversation, the court was satisfied that there was some basis for the questions.
After the dismissal of the bad-faith claim and two of Allstate's affirmativ e defe nses, the subject of arson arose again only in the closing arguments. Allstat e revisited the circumstantial evidence adverted t o in the opening statement, and referred to other evidence, such as the fact that Mr. Gregg mov ed valuable items away from the house before the fire. There was again no objection: Mr. Gregg instead chose to argue that Al lstate improperly raised the matter of arson and that it was "beating the arso n drum."

II.

We frequ ently afford great deference to the grant of a new trial by a distric t co urt. For instance, the question of whether a closing argument was of such a pre judicial nature as to warrant a new trial is left to the discretion of the court, which is in a be tter position to determine the extent of the prejudice. Vanskike v. Unio n Pacific Railroad Co. , 72 5 F.2d 1146, 1149 (8th Cir. 1984). A district court abuses its-5-

discretion, however, if it bases its grant of a new trial on an error of law. Mears v

. Nationwide Mutual Insurance Co. , 91 F.3d 1118, 1123 (8th Cir. 1996).

In this case, the district court's grant of a new trial was evidently based on it s ruling on t he question of arson that followed the motion in limine. In any event, th e court said in its order granting Mr. Gregg's motion for a n ew trial that Allstate's "failure throughout the trial to honor the letter and the spirit of the Court's ruling on this matter resulted in ex treme prejudice to the Plaintiff." We therefore first review the nature of the ruling to which the court adverted in its order.

We note that the record is not entirely free from ambiguity as to when, or even if, a ruling with regard to arson was made. As we indicated , Allstate announced before the trial its intention to int

roduce evidence of arson, and there was no objection to this plan nedcourse of action from Mr. Gregg or the district court. Allstate's openin g statement manifested a similar intention, also without objection. The questioning o f Mr. Stark likewise passed unobjected to, and the court's concern at that point wa s apparently confined to whether the questions had some foundation.

In its closing argument, Allstate revisited the suggestions made in its openin g statement
. It argued, among other things, that "[u]nless there was design, thinkin g ahead, scheming, why else would someone put a small television i n a place where a big one was supposed to be, claim a big one and not cl aim the small one?" This argument, which clearly implied that the destruction of Mr. Greg g's house was the result of arson, passed without objection by Mr. Gregg, but soon thereafter the district court cautioned that it was "hearing echoes of arson" and that it "wanted to mention it to [Allstate] so you'll be careful not to cross into that, okay?" After this caution, Allstate nevertheless adverted to the fact that Mr. Gregg took away a valuable boat immediately preceding the fire.-6-

We need not determine the exact limits of the district court 's ruling, or its precise timing, because we think that on this record the evidence tending to show arson was properly before the jury as a matter of law. With regard to Allstate's defense t o Mr. Gregg' s bad-faith claim, suspicion of arson would certainly be a reasonabl e explanation for why, in light of the need for investigation, Mr. Gregg's c laim might have taken longer than usual to process. Indeed, the court conceded as much. We think too that the evidence was relevant to Allstate's def ense with respect to Mr. Gregg's alleged misrepresentations on the l oss form. Evidence suggesting that Mr. Gregg deliberately caused the fire supported Allstate's contention that while Mr. Gregg claimed that hi s hous e contained goods of high quality, it was actually sparsely furnished; that i s beca use if Mr. Gregg committed arson, that would tend to prove that he remove d valuable items from the house prior to the fire. Finding the evidentiary ruling wrong
as a matt er of law, we therefore hold that the grant of a new trial was an abuse o f discretion. III.

For the reas ons stated above, we remand the case to the district court for th e reinstatement of the first verdict. A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.