Page:Parker v. Southern Farm Bureau Casualty Insurance Co.pdf/23

Rh   the insured's favor on the coverage question on grounds that Farm Bureau failed to comply with the ten-day notice requirement. The company has not appealed that ruling. Yet the company insisted throughout this litigation that it was genuinely defending its denial of coverage on the belief that it had fully complied with the ten-day notice required by policy language and Ark. Code Ann. § 23-89-304(a)(2). That argument is clearly untenable. Did it amount to bad faith? Was it dishonest, malicious, or oppressive under the analysis of ''Aetna Cas. & Surety Co. v. Broadway Arms Corp.'', 281 Ark. 128, 664 S.W.2d 463 (1984) and its progeny?

This court has stated that the tort of first-party bad faith requires a showing of dishonest, malicious, or oppressive conduct by the insurer in an effort to avoid contractual liability. ''Aetna Cas. & Surety Co. v. Broadway Arms Corp., supra; see also RJ "Bob" Jones Excavating Contractor, Inc. v. Firemen's Ins. Co.'', 324 Ark. 282, 920 S.W.2d 483 (1996); ''Employers Equitable Life Ins. Co. v. Williams'', 282 Ark. 29, 665 S.W.2d 873 (1984). While the evidence in this case may have been insufficiently developed to prove absolutely the presence of bad faith, I posit that the denial of coverage notwithstanding the plain language of the policy is prima facie evidence of bad faith sufficient to avoid summary judgment. Farm Bureau denied coverage for a lengthy period of several months, at least enough time to force the insured to seek legal aid with his claim. His lawyer's detailed billing record shows that considerable effort was expended to resolve the dispute over a minor claim, all of which was resisted by the insurer. And while the suit itself may have somehow encouraged the insurer to dig in its heels on the claim, that is not in itself sufficient justification for continuing to deny a claim. I do not think an insured's filing suit can be fairly characterized, as the majority has suggested, as sufficient provocation of an insurer to shield the insurer from being found guilty of engaging in bad faith. Adversarial relationships are often spawned by the passage of time and what appears on the surface to be slight resistance. It is possible, rather, that Farm Bureau's personnel, perhaps all the while smiling, consoling, and reassuring their policyholder of their personal regrets, were acting in bad faith. I disagree with the majority's apparent belief that all evidence of bad faith must have occurred before suit is filed, or that it must be patent and striking. Such a belief would encourage all insurers "merely" to delay payment of claims and deny coverage long enough to provoke their insureds to file suit for recovery, after which the insurers are effectively