dissenting. This is not a Blankenship v. Cincinnati Milacron Chemicals [(1982), 69 Ohio St. 2d 608 (23 O.O.3d 504)] case. This *135is not a Jones v. VIP Development Co. [(1984), 15 Ohio St. 3d 90] case. This is not a workers’ compensation case. Accordingly, R.C. 4123.90 is also inapplicable to the facts at bar.
Simply stated, the employer herein allegedly failed to comply with a legal duty by wrongfully withholding funds. The consideration that these funds were owed pursuant to a workers’ compensation claim makes no greater difference than had they been due and owing from a conventional contract claim.
With reference to workers’ compensation statutes, R.C. 4123.90 is, on its facts, only applicable to those instances where an employer retaliates against employees for availing themselves of workers’ compensation benefits. In the case sub judice there is absolutely no evidence to suggest the withholding of monies was retaliatory for the filing for or taking advantage of workers’ compensation benefits. Instead, the employer acted after the award had been made and after monies,' in part, had already been disbursed. There was unquestionably a statutory duty on the self-insured employer to act in good faith in the handling and payment of the claims of its insured employee. This is not, however, pursuant to Blankenship v. Cincinnati Milacron Chemicals any more than it would be pursuant to Marburg v. Madison (1803), 5 U.S. (1 Cranch) 137. The relationship was not based on an employer-employee situation, but clearly on an insured-insurer basis. The problem is therefore easily resolved through established case law, specifically Hoskins v. Aetna Life Ins. Co. (1983), 6 Ohio St. 3d 272. In Hoskins this court held the insured must be able to show bad faith on the part of the insurer to recover damages. In the event actual malice, fraud or insult can be shown, punitive damages may be recovered.
Regardless of whether one agrees or disagrees with Blankenship and its progeny, it is inconsistent for this court, five of whose present members substantially concurred in the Hoskins syllabus, to now ignore Hoskins in lieu of some nebulous Blankenship rationale when in this case there is no workers’ compensation issue.
I would therefore remand this cause for the trial court to properly characterize the legal relationship between the parties herein as one between an insured and insurer and make a determination on that basis. The applicable standards of proof to make such determination were fully set forth in Hoskins and were unanimously agreed to by this court. Accordingly, I dissent.