Page:Parker v. Southern Farm Bureau Casualty Insurance Co.pdf/22

1094   argued in the trial court that he should be allowed to make discovery of twenty cancellation notices sent to other insureds of the company who were similarly situated, but he was denied access by the trial court's ruling that the requested discovery was irrelevant and, in any case, would violate the privacy of other policyholders. The insured's effort to produce evidence of bad faith was thereby effectively foreclosed. The majority opinion condones that ruling as fair application of discovery rules and caselaw, but I agree with Justice Brown's cogent analysis of the discovery issue in his dissent. Especially telling is his point that "[t]he essence of litigation is proof – not representations by an adversary of what should have been done." If we accept the proposition that an insurance company's disparate treatment of a policyholder in denying coverage may be shown to be oppressive or dishonest conduct rising to the level of bad faith, then a policyholder who has reason to suspect that he may have been treated disparately from other policyholders should be allowed reasonable access to defense documents which may show that his suspicions are accurate (or inaccurate). Even if characterized as a "fishing expedition" (with which characterization I disagree), discovery of twenty notices would not have been burdensome or oppressive for the insurance company. And if the insurance company's defense was genuine and there was, in fact, no disparate or unfair treatment of the plaintiff, then the company's good faith would have been established without doubt. As the trial court left it, the plaintiff was summarily overruled and outpowered.

Farm Bureau issued a six-month policy to the insured which was, according to the declaration page of the policy, to be effective through December 9, 1993. But the company took the position (and staunchly maintained it throughout this action and through oral argument on appeal), that the policy had lapsed for nonpayment of premium after three months. Insurance contracts are adhesion contracts in the truest sense of the word. 2 C I 3 § 22:11 (1995). The insurance company drafts the language and is in the best position to understand its meaning. Therefore, this court has long followed the majority rule that the intent to exclude coverage in insurance contracts should be expressed in clear and unambiguous language, and that such provisions are strictly construed against the insurance company and liberally construed in favor of the insured. ''Nationwide Mut. Ins. Co. v. Worthey'', 314 Ark. 185, 861 S.W.2d 307 (1993). Insurers and their legal counsel know this well. The trial court in this case found in