concurring specially.
I agree that Bennett cannot recover bad faith penalties and attorney fees under OCGA § 33-4-6, but my reasoning differs from that of the majority, particularly with respect to footnote 1 and the effect of Allianz Life Ins. Co. v. Riedl, 264 Ga. 395, 397-398 (2) (444 SE2d 736) (1994) on this case.
From September 1992 through March 1994, Bennett made demands for payment of benefits from defendant insurer. The insurer refused these demands, since Bennett had assigned her benefits to the medical care provider. In Riedl, decided June 27, 1994, the Supreme Court validated the insurer’s position, holding that “an assignment of benefits by an insured does divest the insured of the right to bring an action against the insurer.” 264 Ga. at 397 (2).
In its first footnote, the majority states that Riedl overruled clear law to the contrary, but holds that Riedl nonetheless controls this case because it was the law by the time Bennett’s lawsuit was filed — even though it was not the law at the time the demands were made and refused. With this holding I cannot agree. Rather, if the insurer had been contravening clear, existing law at the time it refused Bennett’s demands, it should be subject to bad faith penalties and attorney fees under OCGA § 33-4-6, regardless of a subsequent change of law in its favor.
The Supreme Court in Riedl did not overrule .clear law that an assignor of benefits retained the right to demand those benefits, however. Instead, it applied already existing principles of assignment law to the specific context of the assignment of medical benefits; and in doing so it noted that the law in this area.had previously been unclear. 264 Ga. at 397.
*294Decided October 23, 1996. Inglesby, Falligant, Horne, Courington & Nash, Sam P. Inglesby, Jr., James F. Shehane TV, for appellant. Middleton, Mixson, Orr & Adams, Richard H. Middleton, Jr., Mark A. Tate, for appellee.Thus, the insurer was not contravening clear, existing law at the time it refused Bennett’s demands. As an insurer is not liable for penalties and fees under OCGA § 33-4-6 where there is a doubtful question of law, see Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 769 (4) (417 SE2d 671) (1992), I therefore agree that the denial of insurer’s motion for summary judgment should be reversed.