Page:Parker v. Southern Farm Bureau Casualty Insurance Co.pdf/21

Rh   first time in its opinion. It was not raised at trial or by the parties in this appeal. The time frame for the notices to be discovered could have been fleshed out at the trial court level had not the door to discovery been shut and bolted.

I respectfully dissent. 

 M E. S, Special Justice, dissenting. I would affirm the trial court's ruling on the issues of insurance coverage, the statutory twelve percent penalty, and attorney's fees. But because I think the discovery in this case was unduly restricted by the trial court's protective order, I would reverse and remand on the bad faith and discovery issues. Summary judgment is an extreme remedy which should only be granted when there is no factual dispute. When considering a motion for summary judgment, the court views the facts in the light most favorable to the party against whom judgment is sought, and when reasonable minds might differ as to conclusions to be drawn from the facts disclosed, a summary judgment is not proper. Culpepper v. Smith, 302 Ark. 558, 792 S.W.2d 293 (1990). I think the facts in this case show that reasonable minds might differ as to conclusions to be drawn from the insurance company's handling and denial of the plaintiff's claim. Unlike the majority, I am convinced that denial of a claim may be evidence of bad faith where, as here, the insurance company acknowledges that statutory law and its own policy require a ten-day notice of cancellation. As noted in Justice Glaze's concurring opinion, the defendant insurance company in the instant case relied on the ruling in ''Farmers Ins. Co. v. Hall'', 263 Ark. 734, 567 S.W.2d 296 (1978) for the proposition that it was not required to give the ten-day notice. But that stance was based on a plain misapplication of Hall to the facts of the instant case, and was inconsistent with the company's admission in discovery that their policy language and the applicable statute, Ark. Code Ann. § 23-89-304(a)(2), required a ten-day notice of cancellation to the insured. Farm Bureau's agents also admitted that no such notice was sent to the insured in this case. So the company's alleged good-faith denial of coverage was based on a disingenuous argument which, I contend, is tangible evidence of bad faith.

And I believe that the trial court abused its discretion in denying the plaintiff the requested discovery of Farm Bureau's cancellation notices sent to twenty other policyholders. The insured