MOORE, Chief Justice.
State Farm Fire and Casualty Company appeals from an adverse judgment entered on a jury verdict in the Morgan Circuit Court in favor of homeowner and policyholder Shawn Brechbill on his claim of "abnormal" bad-faith failure to investigate an insurance claim. We reverse the trial court's judgment and remand.
I. Facts and Procedural History
On September 7, 2007, Brechbill purchased a 3-story, 30-year-old house in Lacey Springs. One month before closing on the purchase, Brechbill hired Allan McCrispin of McCrispin, Inc., a home-inspection company, to inspect the house. McCrispin did not note any significant cracking around the interior door frames. McCrispin noted some floor squeaking, as is typical for wood floors in older homes, but he saw no evidence of long-term settling of the house.
On September 11, 2007, a State Farm employee inspected Brechbill's house to verify that it met State Farm's underwriting requirements. State Farm's underwriting file on Brechbill's house indicated "yes" to the following question: Does the "applicant dwelling meet all homeowner underwriting guide requirements?" The underwriting file also reported "no unrepaired damage." At all relevant times, Brechbill's home was insured by State Farm.
In his complaint, Brechbill alleged as follows:
Brechbill described the events of the storm as follows. "It was literally shaking the house.... It was shaking the windows ... there was so much banging — there was banging and popping in the house.... The house was shaking so violently — I had a computer on the desk — the screen ... was shaking so bad it was actually walking across the desk." Brechbill also stated that "the house was rocking."
State Farm designated the windstorm that occurred on January 29, 2008, as a state-wide catastrophe due to the high number of insurance claims. State Farm's declaration of a "catastrophe" was based on the number of claims, not the severity of the claims. In north Alabama alone about 300 State Farm insurance claims were submitted.
Brechbill alleged that in the days after the windstorm he noticed that the wall between the master bedroom and the dressing room was buckled and displaced, that the floor squeaks had become widespread, that a door frame had become dislodged, and that cracking started to appear in the drywall. Brechbill also alleged that the cracks in the drywall were not present when he purchased the house or at any time before the January 29 windstorm.
On March 31, 2008, Brechbill submitted a claim to State Farm for payment based on the wind damage. State Farm insurance adjuster Keith Fry inspected Brechbill's house on April 21, 2008. Fry found exterior damage to the roof shingles and interior damage consisting of cracked drywall and separated door jams. Fry concluded the exterior damage to the roof shingles was covered by Brechbill's insurance policy and issued payment for roof repairs. Fry's inspection included a photograph of drywall cracking above a door casing. Fry suggested that State Farm retain an engineer to determine the cause of the interior damages.
State Farm retained Phillip Chapski of Cerny & Ivey Structural Engineers, Inc., who inspected Brechbill's residence on April 24, 2008. Chapski's report, dated May 5, 2008, described his inspection as an "engineering evaluation ... to assess the structural integrity of the residence." Brechbill was present during this investigation and provided Chapski with background information, which included floor drawings apparently prepared by Brechbill. Chapski's report states: "A visual inspection was performed only. There were no invasive or destructive materials investigations, or laboratory testing performed at the site. This report is limited in scope and based on investigative information gathered before, during, and after the site investigation." Chapski evaluated whether "a wind storm affect[ed] the structural integrity of the residence and if not, what caused the damage." Chapski's report indicates he performed measurements "in the field" as part of his investigation.
From Chapski's visual inspection of the attic, he observed no cracking, misalignment, or apparent settlement or displacement of the wood-framing system supporting the roof structure. From his measurements and review of Brechbill's drawings, Chapski also concluded that the interior load-bearing walls of the residence were not properly aligned with one another, thus creating loading eccentricities and differential stresses and movements within the residence. Chapski observed cracking of the drywall between the master bedroom and dressing room and in the back bedroom, but he concluded that the cracking of the drywall was limited and not widespread.
Chapski's report featured the following conclusions:
Based on Chapski's findings, State Farm representative Heather Woods determined that the interior damage reported by Brechbill was not covered under Brechbill's homeowner's insurance policy. Woods sent a letter to Brechbill citing two reasons for State Farm's denial:
Woods also sent Chapski's report to Brechbill and told him he could get his own engineer to evaluate the interior damage.
Brechbill disagreed with Chapski's conclusions. According to Brechbill, Chapski did not verify any of the dimensions or measurements of the house during his investigation, nor did he directly access the attic, other than performing a visual inspection by sticking his head into the attic-access hole. On May 15, 2008, Brechbill called Chapski to discuss his conclusion that the interior damage was caused by long-term settling. Chapski told Brechbill that this was a typical situation where the damage had been there before the event but had gone unnoticed.
On May 28, 2008, Brechbill called Bert Myers, a State Farm representative, and explained his concern that Chapski had not based his opinion on the specific facts of the case and had ignored facts that the house did not have the issues he was complaining of just a few months before the windstorm. Myers disputed Brechbill's conclusions.
After Chapski's inspection, Brechbill had McCrispin, who had inspected the house at the time Brechbill purchased it, inspect the house to "determine if items have/are changing over time in excess of expected values." As a result, McCrispin issued a second report in June 2008 in which he noted: "In looking at these areas there does appear to have been changes since the original inspection." McCrispin's second report identified four areas that had changed since his original inspection four months before the windstorm. On the main floor, the wall separating the living room and kitchen had some "give" in the floor boards "that appears to have increased since the original inspection." On the main floor, there was a crack at the bottom corner on the driveway-side window that was not present at the original inspection. Also on the main floor, McCrispin noted that "it appears the trim has popped free from the door frame." In the master dressing room, McCrispin noted a crack above the corner of the doorway. McCrispin did not notice any sign of the exterior siding buckling or moving.
On July 17, 2008, Brechbill met with State Farm representatives Myers and Woods and provided them with McCrispin's initial home-inspection report from 2007 and the follow-up report from June 2008. Myers indicated that Chapski would reassess the areas McCrispin had identified in his follow-up report. Woods asked Chapski to review Brechbill's concerns and McCrispin's second report and to consider five specific areas:
Chapski reviewed McCrispin's reports, completed a second inspection of Brechbill's residence, and submitted his second report to State Farm on July 29, 2008. His findings and conclusions remained the same. Chapski's second report contains the following statements regarding his subsequent research about wind-speed data gathered 10 miles from Brechbill's house.
Chapski's second report evaluated McCrispin's initial report as follows:
After discussing Chapski's second report with Brechbill, Heather Woods sent a second denial letter to Brechbill. The second denial letter gives the same two reasons State Farm provided in the first denial letter. However, State Farm's second denial letter added a third reason for denying Brechbill's claim:
In August 2008, Brechbill hired Dr. William Payne of Payne Home Inspections, Inc., to conduct an investigation of the structure. Payne also assessed Chapski's reports and State Farm's conclusions. Payne concluded generally that "[t]he conclusions from the consulting engineers are based on questionable logic and incomplete research." He explained:
On December 9, 2009, Brechbill sent State Farm the results of Payne's engineering report and a copy of a report Brechbill had himself prepared. Myers again met with Brechbill and forwarded the two new reports to Chapski for analysis and review. Chapski then prepared a third supplemental report of January 15, 2010, on causation of damage. Most of Chapski's original conclusions did not change. His observations about wind speed, however, did change. Chapski's third report found:
On January 28, 2010, Brechbill sued State Farm, alleging breach of contract, "normal" bad-faith failure to pay, and "abnormal" bad-faith failure to investigate. After filing its answer, State Farm filed a motion for partial summary judgment on Brechbill's claims of "normal" bad-faith failure to pay and "abnormal" bad-faith failure to investigate. On October 7, 2010, the trial court granted State Farm's motion for a partial summary judgment as to Brechbill's claim for "normal" bad faith and denied State Farm's motion as to "abnormal" bad faith. The trial court's order reads in pertinent part:
As to the "abnormal" bad-faith claim, the trial court stated:
The trial court denied State Farm's motion to reconsider the denial of the summary judgment on the "abnormal" bad-faith claim. State Farm sought certification for a permissive appeal from the trial court, which the trial court also denied. In the order denying State Farm's request for a permissive appeal pursuant to Rule 5, Ala. R.App. P., the trial court observed, in pertinent part:
The trial began on November 14, 2011. At the close of Brechbill's case, State Farm moved unsuccessfully for a judgment as a matter of law. At the close of all the evidence, State Farm again filed a motion for judgment as a matter of law, which the trial court denied.
On November 22, 2011, the jury returned a verdict for Brechbill and awarded him $150,000 in compensatory damages on the breach-of-contract claim and $150,000 on the "abnormal" bad-faith-failure-to-investigate claim ($100,000 in compensatory damages and $50,000 in punitive damages). After the verdict, State Farm renewed its motion for a judgment as a matter of law and filed a motion for a new trial. State Farm's posttrial motions were denied by operation of law pursuant to Rule 59.1, Ala. R. Civ. P. The trial court thereafter entered an order purporting to deny State Farm's posttrial motions on March 26, 2012. On April 30, 2012, State Farm timely appealed the adverse judgment on the "abnormal" bad-faith claim but did not appeal the judgment on the breach-of-contract claim.
II. Standard of Review
This Court's standard of review for a ruling on a judgment as a matter of law is "`materially indistinguishable from the standard by which we review a summary judgment.'" Webb Wheel Prods., Inc. v. Hanvey, 922 So.2d 865, 870 (Ala. 2005) (quoting Hathcock v. Wood, 815 So.2d 502, 506 (Ala.2001)). "We must decide whether substantial evidence was presented to the jury, which, when viewed in the light most favorable to [the nonmovant], would warrant a jury verdict in [the movant's] favor." 922 So.2d at 870. Our standard of review for a ruling on a summary-judgment motion is well settled:
The issue in this appeal is whether the trial court, after finding that State Farm had a reasonably legitimate or arguable reason for refusing to pay Brechbill's claim at the time of the August 7, 2008, denial, erroneously denied State Farm's motion for a judgment as a matter of law on Brechbill's claim of "abnormal" bad-faith failure to investigate, which we will refer to as the bad-faith-refusal-to-investigate
National Sec. Fire & Cas. Co. v. Bowen, 417 So.2d 179, 183 (Ala.1982).
State Farm argues that Brechbill's bad-faith-refusal-to-investigate claim cannot proceed as a matter of law because the trial court expressly found that State Farm had a reasonably legitimate or arguable reason for refusing to pay the claim at the time of its denial. State Farm cites our holding in Weaver v. Allstate Insurance Co., 574 So.2d 771, 774 (Ala.1990), as follows:
(Emphasis added.) State Farm notes that bad faith is a single tort, not two torts: that is, bad-faith refusal to investigate is the last element in the original articulation of the tort of bad-faith refusal to pay.
Brechbill, however, argues that a bad-faith-refusal-to-investigate claim can proceed to the jury even when evidence of bad-faith refusal to pay is insufficient to survive a judgment as a matter of law, citing Jones v. Alfa Mut. Ins. Co., 1 So.3d 23 (Ala.2008) (plurality opinion). Brechbill maintains, contrary to State Farm's assertion, that there are two types of bad-faith claims. He quotes Employees' Benefit Ass'n v. Grissett, 732 So.2d 968 (1998):
Id. at 976 (emphasis added).
As a preliminary matter, we agree with State Farm that there is only one tort of bad-faith refusal to pay a claim, not two "types" of bad faith or two separate
405 So.2d at 7. Even the quote from Grissett to which Brechbill refers discusses two methods "to establish a bad-faith refusal to pay an insurance claim," recognizing the singularity of the tort, albeit with different options for proof thereof. We have repeatedly held that the tort of bad-faith refusal to pay a claim has four elements — (a) a breach of insurance contract, (b) the refusal to pay claim, (c) the absence of arguable reason, (d) the insurer's knowledge of such absence — with a conditional fifth element: "(e) if the intentional failure to determine the existence of a lawful basis is relied upon, the plaintiff must prove the insurer's intentional failure to determine whether there is a legitimate or arguable reason to refuse to pay the claim." Bowen, 417 So.2d at 183. Thus, for the tort of bad-faith refusal to pay, "[r]equirements (a) through (d) represent the `normal' case. Requirement (e) represents the `abnormal' case." Grissett, 732 So.2d at 976. But the tort has always been one.
Regardless of whether the claim is a bad-faith refusal to pay or a bad-faith refusal to investigate, the tort of bad faith requires proof of the third element, absence of legitimate reason for denial: "Of course, if a lawful basis for denial actually exists, the insurer, as a matter of law, cannot be held liable in an action based upon the tort of bad faith." Gulf Atlantic Life Ins. Co. v. Barnes, 405 So.2d 916, 924 (Ala. 1981) (emphasis added). As we held in Weaver, where the "[insurer's] investigation established a legitimate or arguable reason for refusing to pay [the insured]'s claim, [that] is all that is required." 574 So.2d at 774. See also Bowers v. State Farm Mut. Auto. Ins. Co., 460 So.2d 1288, 1290 (Ala.1984) ("[W]here a legitimate dispute exists as to liability, ... a tort action for bad faith refusal to pay a contractual claim will not lie.").
In the present case, the trial court's order ruling on the motion for a partial summary judgment states:
(Emphasis added.) In its order denying State Farm's request for a permissive appeal, the trial court explained: "Because of the swearing match between the defendant's expert and the plaintiff's expert as to the cause of the plaintiff's interior damage to his home, the plaintiff in the case at bar would not be entitled to a preverdict judgment on his breach of contract claim as a matter of law." Because the trial court's ruling eliminated the third element of bad-faith refusal to pay, Brechbill's claim relying on the fifth element, i.e., that State Farm "intentionally failed to adequately investigate" the claim, must fail. Weaver, 574 So.2d at 774. The existence of an insurer's lawful basis for denying a claim is a sufficient condition for defeating a claim that relies upon the fifth element of the insurer's intentional or reckless failure to investigate. The trial court's summary judgment on the third element of bad faith established the law of the case and should have foreclosed further
The Jones case, relied upon by the trial court and Brechbill to permit the bad-faith-refusal-to-investigate claim to proceed, is distinguishable. In Jones, we affirmed a summary judgment for Alfa Mutual Insurance Company on the Joneses' "normal" bad-faith-refusal-to-pay claim and found that Alfa's structural engineer's "report creates a question of material fact that would preclude the Joneses from receiving a preverdict judgment as a matter of law on the underlying breach-of-contract claim." Jones, 1 So.3d at 34. We also concluded, in a portion of the decision joined by a plurality, that the following facts, taken as a whole, created a jury question on the bad-faith-refusal-to-investigate claim:
1 So.3d at 36-37. Likewise, Brechbill asserts that State Farm never considered "before and after" evidence from its own insurance agent, from real-estate agents, from the prior owner, and did not speak to McCrispin or anyone else who may have seen the house before the windstorm.
In Jones, evidence for the insurer's denial was gathered after the denial was made, whereas here a debatable reason for State Farm's denials existed at the time of the denials. See, e.g., Pyun v. Paul Revere Life Ins. Co., 768 F.Supp.2d 1157, 1171-72 (N.D.Ala.2011) (holding that because "Met Life had a reasonably debatable reason for denying Plaintiff's claim at the time of its denial of Plaintiff's claim.... [, it] is entitled to summary judgment on Plaintiffs extraordinary bad-faith claim").
State Farm may or may not have perfectly investigated (or reinvestigated) Brechbill's claim to his satisfaction, but perfection is not the standard here. "Alabama law is clear: ... regardless of the imperfections of [the insurer's] investigation, the existence of a debatable reason for denying the claim at the time the claim was denied defeats a bad faith failure to pay the claim." Weaver, 574 So.2d at 775 (quoting State Farm Fire & Cas. Co. v. Balmer, 891 F.2d 874, 877 (11th Cir.1990)). This fact, present in Weaver and in the instant case, was nonexistent in Jones.
The facts before us do not rise to the level of bad faith, dishonesty, self-interest, or ill will inherent in bad-faith conduct. Even if State Farm improperly omitted some aspects of a complete investigation, "more than bad judgment or negligence is required in a bad-faith action." Singleton v. State Farm Fire & Cas. Co., 928 So.2d 280, 287 (Ala.2005). "Bad faith, then, is not simply bad judgment or negligence. It imports a dishonest purpose and means a breach of known duty, i.e., good
We reverse the judgment on the bad-faith-refusal-to-investigate claim and remand the case to the trial court for proceedings consistent with this opinion.
REVERSED AND REMANDED.
STUART, BOLIN, PARKER, and MAIN, JJ., concur.
MOORE, C.J., and MURDOCK, J., concur specially.
BRYAN, J., concurs in the result.
MOORE, Chief Justice (concurring specially).
This case exemplifies some of the confusion the tort of bad faith has created over the last 30 years for Alabama trial courts, for appellate courts, and for attorneys in general.
In Lavoie v. Aetna Life & Casualty Co., 374 So.2d 310, 312 (Ala.1979) ("Lavoie I"), this Court stated that it would "not foreclose the possibility of recovery in tort for the bad faith refusal of an insurer to pay legitimate benefits," citing Vincent v. Blue Cross-Blue Shield of Alabama, Inc., 373 So.2d 1054 (1979), and Childs v. Mississippi Valley Title Insurance Co., 359 So.2d 1146 (1978).
However, it was not until 1981 that this Court, according to Justice Reneau Almon in his dissent in Chavers v. National Security Fire & Casualty Co., 405 So.2d 1, 15 (Ala.1981), with "zeal, ardor, and with iron determination, introduce[d][us] to Mr. Bad Faith" and recognized the intentional tort of bad faith for the breach of a contract by an insurance company. In Chavers this Court adopted the test proposed in the dissent in Vincent and held that
405 So.2d at 7. The tort of bad faith is based upon the fact that "`[e]very contract contains an implied in law covenant of good faith and fair dealing'" and the "`[b]reach of [that] covenant provides the injured party with a tort action for "bad faith" notwithstanding that the acts complained of may also constitute a breach of contract.'" Id. at 4 (quoting Childs, 359 So.2d at 1152).
The next year in National Savings Life Insurance Co. v. Dutton, 419 So.2d 1357 (Ala.1982), Justice Richard ("Red") Jones distinguished "ordinary" bad-faith cases from "extreme" cases, which in time led to the phraseology of the "normal" bad-faith case versus the "abnormal" bad-faith case. 419 So.2d at 1363-1364 (Jones, J., concurring specially). Justice Champ Lyons in Employees' Benefit Ass'n v. Grissett, 732 So.2d 968, 976 (1998), defined the "abnormal" bad-faith case as follows:
732 So.2d at 976 (citations omitted).
In 1999, Justice Lyons explained these terms for the Court again: "[t]he `unusual or extraordinary' case was then referred to as the `abnormal' bad-faith case, and the `directed-verdict-on-the-contract-claim' case was called the `normal' bad-faith case." State Farm Fire & Cas. Co. v. Slade, 747 So.2d 293, 306 (Ala.1999).
Chief Justice Bo Torbert noted in Chavers that "[i]t will be interesting to follow the impact of the majority's views on the contractual relationship between the insurers and their insureds." Chavers, 405 So.2d at 14 (Torbert, C.J., dissenting).
And throughout the years, Justices, including Chief Justice Torbert, Justice Hugh Maddox, and Justice Jones, did indeed watch with great interest that impact.
In 1984 Chief Justice Torbert, dissenting in Aetna Life Insurance Co. v. Lavoie, 470 So.2d 1060, 1079 (Ala.1984) ("Lavoie II"), explained:
In Lavoie II, Justice Maddox, also dissenting, stated that "the Court has expressed differing views on the standards to be used ... in determining when and under what circumstances the tort was established." 470 So.2d at 1088 (Maddox, J., dissenting).
Three years later, Justice Maddox noted in a special concurrence in Aetna Life Insurance Co. v. Lavoie, 505 So.2d 1050, 1058 (Ala.1987) ("Lavoie III"), that the Court has had "difficulty with this kind of claim from the beginning."
Justice Jones also expressed concern, shortly after the Court first recognized the tort of bad faith, that the two tiers of bad faith were confusing. He stated:
Continental Assurance Co. v. Kountz, 461 So.2d 802, 810 (Ala.1984) (Jones, J., concurring specially).
Justice Maddox, dissenting in that case, opined that the test for "normal" bad faith is much like a court having to say that although "obscenity" cannot be defined, "I know it when I see it." Id. at 811. (Maddox, J., dissenting). He charged the Court with "fail[ing] to give ... settled principles to guide ... in determining when, and under what circumstances, the tort can be established." Id.
Alabama's present version of the tort of bad faith remains at least as confusing and amorphous as when the Court recognized the tort in 1981. Such difficulties will
II. The Impact of Chavers
"The whole question of bad faith by insurance companies might be an issue more properly addressed by the legislature." Lavoie II, 470 So.2d at 1080 (Torbert, C.J., dissenting). "`[I]n our scheme of government, policy questions like this, [that] involve the heavily regulated insurance industry, should properly be addressed by the Legislature, but the Legislature has not acted.'" Lavoie III, 505 So.2d at 1058 (Maddox, J., concurring specially) (quoting his dissent in Kountz, 461 So.2d at 812). In Lavoie III, Justice Maddox stated:
Id. at 1057-58. See also Kountz, 461 So.2d at 811-13(Maddox, J., dissenting) (same); and Thomas v. Principal Fin. Group, 566 So.2d 735, 751 (1990) (Maddox, J., concurring in part and dissenting in part) (same); Independent Fire Ins. Co. v. Lunsford, 621 So.2d 977, 982 (Ala.1993) (Maddox, J., concurring in part and dissenting in part) (same); and Ex parte Simmons, 791 So.2d 371, 382 (Ala.2000) (Maddox, J., concurring in the result) (same).
On October 2, 1981, this Court released both Chavers and Gulf Atlantic Life Insurance Co. v. Barnes, 405 So.2d 916 (1981). In Chavers, the Court recognized that it was making a "new" law, stating:
Chavers, 405 So.2d at 5-6 (citation omitted) (emphasis added). Chavers recognized "the intentional tort of bad faith in first party insurance actions." Id. at 6. On the very same day, the Barnes opinion sought to "restate" the requirements,
405 So.2d at 923. Chavers also cross-referenced Barnes: "[W]e have now by our opinion in this case, as well as in [Barnes,] delineated the tort of bad faith requisites with sufficient clarity to be helpful." 405 So.2d at 11.
Taking Chavers and Barnes together, this Court believed its recognition of the tort of bad faith was a pronouncement of Alabama law. The pronouncement of what a new tort law shall be for future application is a legislative act. "It has been well said, that, `to declare what the law is, or has been, is a judicial power; to declare what the law shall be, is legislation.'" Alabama Life Ins. & Trust Co. v. Boykin, 38 Ala. 510, 513 (1863). The Constitution bars the judiciary from exercising legislative powers, which are wholly vested in the legislative branch. This Court's attempt
Chavers based its judicial legislation on what members of this Court believed public policy required. See Chavers, 405 So.2d at 6 ("[T]he inherent policy considerations mandat[e] our recognition of a redressable tort for intentional breach of good faith."). However, "[t]he Legislature is endowed with the exclusive domain to formulate public policy in Alabama, a domain upon which the judiciary shall not trod." Cavalier Mfg., Inc. v. Jackson, 823 So.2d 1237, 1248 (Ala.2001). "[T]he authority to declare public policy ... is reserved to the Legislature." Ex parte State Farm Fire & Cas. Co., 764 So.2d 543, 547 (Ala.2000). Although the legislature may determine a need for action based upon public policy, the judiciary must be blind to the competing public-policy interests and conditions of insurer and insured, for "[j]ustice is blind, says the law, and in her judgment must see no man, color, race, or condition." Jones v. State, 21 Ala.App. 234, 236, 109 So. 189, 191 (1926).
Those times when the legislature has not acted give the Court no mandate for judicial usurpation of legislative powers, even in areas of great public concern, such as an insurer's refusal to pay a legitimate claim. Thus, contrary to Justice Maddox's recommendation, the Court cannot and should not "fashion an appropriate remedy for every wrong, and should [not] do so if the legislative branch does not address the wrong." Lavoie III, 505 So.2d at 1060 (Maddox, J., concurring specially). "[T]he legislature is uniquely qualified to make those determinations." Id.
Ex parte James, 836 So.2d 813, 876 (2002) (Moore, C.J., concurring in the result in part and dissenting in part). In the area of tort law, "[t]o enact a judge's public policy vision ... represents an attempt to have the judiciary act in a legislative capacity." 836 So.2d at 859. Legislative inaction simply does not grant the judiciary new powers either to engage in public-policy analysis or to create law. Perhaps an intentional breach of a contract for insurance should be punishable by an award of punitive damages, but that is a question that should be addressed by the legislature of this State, not the courts.
III. The Nature of Judicial Opinions
The members of the judiciary are often tempted to think judicial opinions create law, as if, by fiat, "`out of the facts the law arises' ... created in the Supreme Court's laboratory with only an empty test tube." Chavers, 405 So.2d at 14 (Almon, J., dissenting). When the judiciary indulges this temptation, our government of laws is dismantled, replaced with a government of men, in violation of Art. III, § 43, of our Constitution. Blackstone explained, "the law, and the opinion of the judge are not always controvertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law." 1 William Blackstone Commentaries *71. "[W]e may take it as a general rule, `that the "decisions of courts of justice are the evidence of what is common law."'" Id. (emphasis added). Again, "these judicial decisions are the principal and most authoritative evidence, that can be given, of the existence of such a custom as shall form a part of the common law." Id. at *69 (emphasis added).
Chancellor James Kent agreed: "The reports of adjudged cases are admitted to
Thus, our judicial opinions are not law, but rather evidence of the law. We issue opinions; we do not enact statutes. Judicial opinions are signposts. As signposts, judicial opinions may point later travelers the right direction to already existing law, or may point the wrong direction to previously nonexistent, judicially created "law." The judiciary should maintain correct signs but remove or replace signs that lead travelers astray. Chavers and Barnes did not point to existing Alabama law; those cases purported to create new law. Because of this, the opinions in Chavers and Barnes must not be confused with Alabama's tort law. The legislature never enacted the tort of bad faith, and this Court had no power to do so. Chavers and Barnes thus provide no authoritative evidence of tort law in Alabama. Consequently, the judicially legislated tort of bad-faith refusal to pay an insurance claim should not be recognized as part of Alabama law by this Court or any Alabama court. "For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law; that is, that it is not the established custom of the realm, as has been erroneously determined." Commentaries at *70. The tort of bad-faith refusal to pay an insurance claim is not simply bad law; it is not law at all.
In 1998, Justice Maddox urged the Court to look "at the history of the establishment of the tort of bad-faith failure to pay an insurance claim," stating that "it very well may be appropriate for this Court, or for the Legislature, to reexamine the tort of bad-faith failure to pay." Grissett, 732 So.2d at 982, 984 (Maddox, J., concurring in the result); see also Ex parte Simmons, 791 So.2d 371, 382-83 (Ala.2000) (Maddox, J., concurring in the result) ("The fact that trial courts and this Court are still being presented with questions relating to when, and under what circumstances, a bad-faith cause of action can accrue, suggests that an alternative to the bad-faith cause of action would be more appropriate.").
Although the legitimacy of the judicially created tort of bad-faith refusal to pay was not challenged in this case, I believe that this Court's recognition of the tort as the law in Alabama was unconstitutional. I urge the Court to reexamine Chavers, to overrule it in an appropriate case, and to abolish this judicially legislated tort, leaving to the legislative branch the right to determine policy questions such as the intentional breach of an insurance contract by an insurance company.
MURDOCK, Justice (concurring specially).
As the main opinion notes, this Court in National Security Fire & Casualty Co. v. Bowen, 417 So.2d 179 (Ala.1982), stated the elements of a claim of "bad faith" in the following manner:
144 So.3d at 257 (quoting Bowen, 417 So.2d at 183).
I do not understand element (c) of the tort of bad-faith refusal to pay an insurance claim as referring to an absence of a debatable reason in an absolute sense, but as referring to an absence from the insurer's decisional process of a debatable reason. See, e.g., National Sav. Life Ins. Co. v. Dutton, 419 So.2d 1357, 1362 (Ala.1982) ("Whether an insurance company is justified in denying a claim under a policy must be judged by what was before it at the time the decision was made."); Jones v. Alabama Farm Bureau Mut. Cas. Co., 507 So.2d 396, 400 (Ala.1986) (holding that an investigation conducted after the denial of a claim cannot have served as an arguable basis for denying the claim); and National Ins. Ass'n v. Sockwell, 829 So.2d 111, 130 (Ala.2002) (noting that it is "an insurer's responsibility to marshal all of the pertinent facts with regard to its insured's claim before it refuse[s] to pay"). With this understanding, I agree with the main opinion that element (c) is an element of both "normal" and "abnormal" bad-faith claims.
I do not intend hereby to express any opinion as to the holding in Jones v. Alfa Mutual Insurance Co., 1 So.3d 23 (Ala. 2008), or any basis for distinguishing this case from Jones.