Page:Parker v. Southern Farm Bureau Casualty Insurance Co.pdf/13

Rh  Parker points to numerous instances of Farm Bureau's allegedly oppressive conduct throughout the course of the litigation by reference to positions taken in its pleadings, briefs, affidavits, and the depositions of its employees. The problem with Parker's argument is that all of the evidence he points to occurred after his complaint was filed and during the course of the litigation. He points to no specific affirmative misconduct, other than the denial of his claim, and the refusal to retroactively reinstate his policy prior to the filing of his lawsuit on July 13, 1994. Nor does he explain how Farm Bureau's conduct was "dishonest, malicious, or oppressive" prior to the filing of his lawsuit. Moreover, there is nothing in Parker's abstract to indicate that he even asserted a claim for violation of the notice provisions prior to the filing of his complaint. In fact, the memoranda which the trial court excluded from discovery reflect that Parker's position in settlement discussions with Farm Bureau as late as May, 1994, was that he had paid the premium before the cancellation of the policy.

[7, 8] The tort of bad faith cannot arise merely from the denial of a claim, without some affirmative misconduct. ''See Arkansas Mun. League Mun. Health Ben. Fund'', 285 Ark. 419, 688 S.W.2d 720 (1985). It is also well-established that a cause of action must exist and be complete at the time the action is commenced. Elston v. Wilborn, 208 Ark. 377, 186 S.W.2d 662 (1945). The subsequent occurrence of a material fact cannot aid in maintaining it. Id. Therefore, none of the conduct by Farm Bureau after the filing of the complaint, including legal positions asserted, can provide a basis for Parker's bad-faith claim. Farm Bureau's dogged insistence on misapplying Hall could provide tangible evidence of bad faith had it occurred before Parker's action was filed. However, it is not apparent from the abstract that the lack of notice was even raised by Parker prior to the filing of the lawsuit. Consequently, we cannot say that Farm Bureau's action, albeit mistaken, in denying the claim for non-payment of premium constitutes dishonest, malicious, or oppressive conduct rising to the level of bad faith.

3. Attorney's fee award.
Parker's final point on appeal is that the trial court erred in arbitrarily reducing his requested attorney fees by one-third, from $16,096 to $10,676, and in failing to award reimbursement for reasonable trial expense.