dissenting.
In my opinion, the trial court erred in refusing summary judgment to State Farm on the issue of bad faith. That this might be a first impression case, considered alone, does not necessarily mean State Farm’s refusal to pay properly chosen policy limits was in good faith. Bituminous Cas. Co. v. Mowery, 145 Ga. App. 45, 51-53 (244 *311SE2d 573). But where the issue of liability in good faith is closely contested, a finding of bad faith generally is unjustified. Canal Ins. Co. v. Bryant, 173 Ga. App. 173 (325 SE2d 839); United Ins. Co. v. Dixon, 143 Ga. App. 133, 134 (237 SE2d 661), overruled on other grounds, United Family Life Ins. Co. v. Shirley, 242 Ga. 235, 238 (248 SE2d 635). Insurers should not be discouraged from formulating honest defenses by the fear that a contrary conclusion will virtually guarantee a finding of bad faith by a jury when the defense is found untenable. The initial determination of bad faith is a threshold question of law for the court (Canal Ins. Co., supra). In this case, in view of the justifiable argument of policy limitation raising an issue of first impression and thus a viable defense though judicially rejected as an incorrect position, the finding of bad faith would be unjustified. Canal Ins. Co., supra.
Decided March 12, 1985 Rehearing denied March 29, 1985 Robert M. Travis, Michael L. Chapman, for appellant. William Q. Bird, Edward R. Still, Gary R. Smith, for appellee.I respectfully dissent. I am authorized to state that Presiding Judge Deen and Judge Sognier join in this dissent.