Mazda Motor Corporation v. Hurst—Good Count/Bad Count Issues in Alabama—What’s Good for One is Good for All?

Written By: Ranse Hare

Associate Editor, American Journal of Trial Advocacy

Under Alabama law, a “good-count/bad-count” issue arises when a jury is charged with a count that is supported by evidence (a good count) and one that is not supported by evidence (a bad count), and then the jury issues a general verdict failing to distinguish between the two counts.[1] When this type of issue arises, the appellate court is not allowed to presume that the verdict was returned on the good count, and must reverse the judgment that was entered upon the verdict.[2] Earlier this year, however, the Alabama Supreme Court issued an opinion in Mazda Motor Corp. v. Hurst[3] that seems to establish new precedent on good-count/bad-count issues in this state. Despite the lack of authority supporting its reasoning, the Court’s application in the particular case appears logically sound. Although the Court’s interpretation and application of the general good-count/bad-count rule is not technically at odds with prior law, it is a novel one that could possibly create some ambiguity in what appears to be a black/white area of the law.

Factual Background

Mazda Motor Corp. v. Hurst arose out of an automobile accident that took place in the early hours of November 22, 2010.[4] The night prior to the accident, Natalie Hurst, the passenger of the vehicle, was supposed to be spending the night with Sydney McLemore, the driver of the vehicle, at the McLemore residence.[5] At the time of the accident, the two girls were travelling in McLemore’s 2008 Mazda3, allegedly on the way to Hurst’s house, when McLemore lost control of the vehicle.[6] The vehicle first hit the curb of the road, and after McLemore “overcorrected,” the car entered into a spin, subsequently striking a light pole and bursting into flames.[7] Despite suffering third-degree burns to much of her body, McLemore was able to escape the vehicle alive.[8] Unfortunately, however, Hurst was unable to escape the enflamed vehicle and died as a result of her burn injuries.[9]

The Lawsuits

After the accident, Hurst’s parents, John and Barbara Hurst, filed suit against both Mazda and McLemore.[10] The Hursts asserted a wrongful-death claim against Mazda based on the Alabama Extended Manufacturer’s Liability Doctrine (“AEMLD”), as well as Mazda’s alleged wantonness.[11] Specifically, the Hursts claim that the fuel system of the Mazda3 vehicle was defectively designed, and therefore was not crashworthy.[12] As the basis of their contention, the Hursts alleged that Mazda designed the car in such a way that the steel muffler, with its sharp protruding edges, was only one-half inch from the vehicle’s plastic fuel tank.[13] The Hursts alleged that as a result of the defective design the muffler cut into the plastic fuel tank upon the collision, which caused the gasoline vapors to escape the tank and become ignited.[14] Prior to trial, the Hursts settled their claims against both Mazda and McLemore, except for the AEMLD claim against Mazda, leaving it to be heard at trial.[15]

Several months after the Hursts filed their claims, McLemore’s father, Richard McLemore, on his daughter’s behalf and individually, filed a cross-claim against Mazda.[16] Similar to the Hursts’ action against Mazda, the McLemore complaint asserted claims of negligence and wantonness, as well as an AEMLD claim based upon the same design defect the Hursts alleged.[17] The McElmores ultimately dismissed their negligence claim against Mazda, but maintained both the AEMLD and wantonness claims against Mazda.[18]

The Trial

Over the course of the 11-day trial, both the Hursts and McElmores presented testimony from 15 different witnesses on a variety of controversial issues.[19] The testimony that was most pertinent to the issue at hand was that of Jerry Wallingford, a “design-defect-and-causation” expert who was presented by the plaintiffs.[20] At the time the vehicle at issue was manufactured and sold, Ford Motor Company owned one-third of Mazda, and the two companies jointly designed the Mazda3.[21] Wallingford, who had more than 40 years of experience in the auto industry, and once worked for Ford, testified that the Mazda3 fuel system was defectively designed.[22] Wallingford based his opinion on documents that Ford had distributed to their fuel-system engineers regarding the design of fuel systems.[23] Wallingford testified that those documents and the guidelines for designing the fuel systems set out therein “generally embod[ied] what would be considered the standard for designing fuel systems and their components within the industry.”[24] Due to the placement of the steel muffler in such close proximity to the fuel tank, Wallingford testified that the design of the fuel system violated the guidelines of the Ford documents, therefore violating the industry standard.[25]

After the plaintiffs closed their case, Mazda moved for judgment as a matter of law on all the claims, which was denied.[26] After three days of deliberation, the jury rendered a verdict in favor of the Hursts and Sydney McElmore.[27] The jury awarded wrongful-death damages to Hursts for the amount of $3.9 million, and awarded $3 million in compensatory damages and $3 million in punitive damages to Sydney McElmore.[28] After all postjudgment motions were denied, Mazda appealed.[29]

The Appeal

Mazda raised a plethora of issues on appeal, but of particular significance for this article was Mazda’s argument that it was entitled to a new trial on McElmore’s AEMLD claim.[30] Mazda argued that the trial court had improperly submitted McElmore’s wantonness count to the jury since McElmore failed to present substantial evidence in support of the claim.[31] Explaining that the plaintiff’s expert testimony failed to establish the requisite level of culpability to find Mazda guilty of wantonness, the Court agreed that the wantonness claimed had been improperly submitted to the jury.[32]  Therefore, Mazda contended that the wantonness claim was a bad count, and because the jury issued a general verdict in favor of McElmore, failing to differentiate between the AEMLD and wantonness claims, Mazda was entitled to a new trial on the AEMLD claim.[33]

Mazda asserted that the issue at hand was “a textbook ‘good count-bad count’ case,” however, the Court did not agree.[34] Noting that there was another set of plaintiffs, the Hursts, the Court found that this case was not a textbook good-count/bad-count case.[35] The Court found it significant that the only claim that the jury heard at trial was the AEMLD claim.[36]  The Court explained that the jury verdict in favor of the Hursts on their AEMLD claim arose from the same incident and was based on the same evidence as McElmore’s claim.[37] In light of that, the Court stated “[i]n such a circumstance, it is not plausible that the jury found Mazda liable under the AEMLD for purposes of the Hursts’ claims, but not as to Sydney’s claims.”[38]

The Court noted the general prohibition against making presumptions in good count-bad count cases,[39] but stated, “this is a rare case in which we need not ‘assume’ or ‘presume’ anything.”[40] The Court held that in a case like this, where it was possible to determine how the jury decided the good count, “there [was] no basis in logic or in the law to ignore this fact or to discard the jury’s verdict. Instead, we can and should base our holding on what we can know the jury has already decided.”[41] Reasoning that the logical response given the circumstances, and the necessary response to avoid an inconsistent verdict,[42] the Court found, “The elements necessary for recovery under the AEMLD could not be true as to one plaintiff and not as to the other.”[43] Therefore, the Court ruled in favor of McElmore, and chose to uphold the compensatory damages awarded under her AEMLD claim.[44]

Possible Implications Moving Forward

As stated above, the Court’s ruling in Mazda was not at odds with prior precedent, as this appears to have been a “rare” case and a novel issue in this state. The Court’s finding that the circumstances of this case did not require a presumption makes sense; however, the Court was unable to cite any authority in support of its assertion.[45] In fact, the Court merely took bits and pieces of the well-established and oft-repeated language to create an updated interpretation—“where ‘it is . . . possible for this Court to determine’ how the jury decided the ‘good count,’ there is no basis in logic or in the law to ignore this fact or to discard the jury’s verdict.”[46]

In the Court’s defense, the interpretation and application was likely logical in this case. It would be hard to imagine that the jury found for one plaintiff on an AEMLD claim and not the other when the action arose from the same incident, and the plaintiffs relied on the same evidence and testimony. However, even if the Court claims that no presumption was required, it had to make an assumption in its ruling, even if it was a small one. The Court had to presume that the jury understood the AEMLD claims of both plaintiffs and merely made some type of error in failing to differentiate the claims in the verdict issued for McElmore. Therefore, however miniscule the presumption may have been, the Court did have to bridge some inferential gap to reach the conclusion it ultimately came to.

How much leeway does this ruling give courts moving forward when faced with these issues? The language the Court used specifically gives courts the authority to uphold verdicts in good-count/bad-count cases if “it is possible for . . . to determine how the jury decided the good count.” That one line gives courts room to uphold general verdicts for good counts if the plaintiff can present a logical argument explaining how the jury decided on the good count. In turn, the language gives plaintiffs’ attorneys substantial room for argument when facing these issues on appeal. Granted, Mazda presents a narrow fact pattern with two identical claims arising from the exact same occurrence. Therefore, courts should be able to stay within those narrow parameters when ruling on these type issues in the future. At this time Mazda is still subject to appeal,[47] but if the holding stands, it will be interesting to see how courts and attorneys alike apply and construe this ruling moving forward.


[1] Long v. Wade, 980 So. 2d 378, 385 (Ala. 2007) (quoting Larrimore v. Dubose, 827 So. 2d 60, 63 (Ala. 2001).

[2] Long, 980 So. 2d at 385 (quoting Larrimore, 827 So. 2d at 63); See also Alfa Mut. Ins. v. Roush 723 So. 2d 1250, 1257 (Ala. 1998) (“Therefore, when the trial court submits to the jury a “good count”—one that is supported by the evidence—and a “bad count”—one that is not supported by the evidence—and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count. In such a case, a judgment entered upon the verdict must be reversed.” (citing Aspinwall v. Gowens, 405 So. 2d 134 (Ala. 1981))).

[3] No. 1140545, 2017 WL 2888857 (Ala. July. 7, 2017).

[4]Mazda Motor Corp. v. Hurst, No. 1140545, 2017 WL 2888857, *1 (Ala. Jul. 7, 2017).

[5] Id.; Val Walton, Fatal Late-Night Crash in Hoover Leaves Grief and Questions, Alabama local news, Nov. 23, 2010, http://blog.al.com/spotnews/2010/11/fatal_late-night_crash_in_hoov.html.

[6] Mazda Motor Corp., 2017 WL 2888857 at *1.; Walton, supra note 5.

[7] Mazda Motor Corp.., 2017 WL 2888857 at *1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.; Ala. Code § 6-5-521(a).

[12] Mazda Motor Corp., 2017 WL 2888857 at *1.

[13] Id.

[14] Id.

[15] Id. at *2.

[16] Id. at *1.

[17] Mazda Motor Corp., 2017 WL 2888857 at *1.

[18] Id. at *2.

[19] Id.

[20] Id.

[21] Id. at *3, *5.

[22] Id. at *5.

[23] Mazda Motor Corp., 2017 WL 2888857 at *5.

[24] Id.

[25] Id. at *6.

[26] Id.

[27] Id.

[28] Id.; Kent Faulk, Bessemer jury returns $9.9 million verdict against Mazda for 2010 fiery fatal crash, (Oct. 20, 2014, 5:58 PM), http://www.al.com/news/birmingham/index.ssf/2014/10/bessemer_jury_returns_99_milli.html.

[29] Mazda Motor Corp., 2017 WL 2888857 at *7.

[30] Id. at *20.

[31] Id.

[32] See id. at *19 (explaining that plaintiffs’ expert, Wallington, had failed to show how the Mazda fuel-system engineers’ alleged violation of the Ford manuals or industry standards constituted a “conscious knowledge that injury would ‘likely or probably’ result from its fuel-and emissions-system design for the subject model Mazda3.”).

[33] Id. at *20.

[34] Id.

[35] Mazda Motor Corp., 2017 WL 2888857 at *20.

[36] Id.

[37] Id.

[38] Id.

[39] Id. at *20 (“When a jury returns a general verdict upon two or more claims, as it did here, it is not possible for this Court to determine which of the claims the jury found to be meritoriousTherefore, when the trial court submits to the jury a ‘good count’—one that is supported by the evidence—and a ‘bad count’—one that is not supported by the evidence—and the jury returns a general verdict, this Court cannot presume that the verdict was returned on the good count.” (quoting Alfa, 723 So. 2d at 1257 (Ala. 1998) (emphasis added))).

[40] Mazda Motor Corp., 2017 WL 2888857 at *20.

[41] Id.

[42] Id.

[43] Id. at *21.

[44] Id.

[45] Mazda Motor Corp., 2017 WL 2888857 at *20.

[46] Id.

[47] Id. at *23.

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