dissenting:
I dissent from the majority’s determination that American Hardware’s motions for directed verdict were properly denied. The majority does correctly recognize, ante at 365-66, 766 P.2d at 1246-47, that the burden of proof was on Reynolds, regardless of the theory of recovery asserted — be it in contract or in tort. At pages 365-66, 766 P.2d at 1246-47, the majority states:
“Finally, we must focus upon the trial record to determine whether American Hardware Mutual’s motion for a directed verdict was properly denied. The Idaho Rules of Civil Procedure place the burden of proof upon the claimant to establish the prima facie case at trial. It is well settled at law that the burden is upon the claimant to ‘offer ... facts which, when interpreted in the light most favorable to them, would support’ their asserted cause of action against the defendant. Hall v. Bacon, 93 Idaho 1, 453 P.2d 816 (1969). It mil be necessary for this Court to review the essential elements of a cause of action in contract and of a cause of action in tort to determine whether the plaintiff has satisfied this burden.” (Emphasis added.)
The majority then correctly acknowledges that “[t]he record reveals that plaintiff failed to prove a contract claim upon which relief could be granted,” especially since he failed to introduce the insurance contract into evidence. Ante at 365-66, 766 P.2d at 1246-47.
Where the majority errs, however, is in its determination that “[t]he trial record further reveals that the plaintiff did establish the requisite prima facie elements of a negligence claim.”3 Id. The majority recites the requisite prima facie elements of a negligence claim. As acknowledged, ante at 365-66, 766 P.2d at 1246-47.
“If a tort cause of action in negligence is asserted, the burden is upon the claimant to show, ‘(1) a duty, recognized by law, requiring a defendant conform to a certain standard of conduct; (2) a breach of that duty; (3) a causal connection between the defendant’s conduct and the resulting injuries; and (4) actual loss or damage.’ Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980).” (Emphasis added.)
Even though the majority recognized the prima facie elements of a negligence claim, it failed to sufficiently analyze each element. The burden was on Reynolds to prove the threshold element, i.e., that there was “a duty, recognized by law” owed him by American Hardware. The majority, though, makes no analysis of this threshold issue; rather, in less than one paragraph the majority somehow summarily determines that Reynolds met his burden of proof as to all four elements. This simply is not satisfactory legal analysis. Had a sufficient analysis been accomplished, it would have become evident that the threshold “duty, recognized by law” element was not established, nor could it be. Plaintiff Reynolds points to no common law or statutory “duty, recognized by law” requiring an insurer to make final settlement of a claim in less than 43 days. Neither does Reynolds establish any such duty under the contract of insurance between himself and American Hardware. How could he? As the majority acknowledges, he failed to in*371troduce the insurance contract into evidence. Ante at 365-66, 766 P.2d at 1246-47.
Neither was there any testimony or any other kind of evidence offered by Reynolds establishing that some sort of contractual duty existed, but was then breached by American Hardware. In fact, both the majority and Reynolds acknowledge that there was no dissatisfaction with American’s performance under the insurance contract; rather, “Weldon Reynolds, the insured, does not contest the settlement amount_” Ante at 364, 766 P.2d at 1245. Further, the threshold duty element not being established, it is impossible for Reynolds to prove any of the other elements of a negligence claim; i.e., if a duty is not established, a breach of that duty cannot be established either. And if there is no duty breached, proving a causal connection between the breach and any injuries is likewise impossible.
The mere fact that a party has not performed a contract quickly enough to suit the other party is not sufficient to constitute a tort, either. As this Court stated in Carroll v. United Steelworkers of America, 107 Idaho 717, 692 P.2d 361 (1984):
“Under Idaho law it is settled that an alleged failure to perform a contractual obligation is not actionable in tort. As Justice Bakes observed in his special concurrence in Dunbar [v. United Steelworkers of America, 100 Idaho 523, 602 P.2d 21 (1979)], supra, Idaho case law establishes that mere breach of contract does not ordinarily constitute a tort. In Taylor v. Herbold, 94 Idaho 133, 483 P.2d 664 (1971), we stated, ‘To found an action in tort, there must be a breach of duty apart from the nonperformance of a contract.’ In Just’s, Inc. v. Arrington Constr. Co., 99 Idaho 462, 583 P.2d 997 (1978), we again acknowledged that ‘a tort requires the wrongful invasion of an interest protected by the law, not merely an invasion of an interest created by the agreement of the parties.’ In the instant case, Carroll simply alleges that the Union failed to perform its contractual obligations under the Collective Bargaining Agreement. Mere nonfeasance, even if it amounts to a willful neglect to perform the contract, is insufficient to establish a duty in tort. [Citation omitted.] Consequently, Carroll’s cause of action, if any, arising from the Collective Bargaining Agreement lies only in contract, not in tort.” 107 Idaho at 719, 692 P.2d at 363 (footnotes omitted, emphasis added).
See Rawson v. United Steelworkers of America, 111 Idaho 630, 633, 726 P.2d 742, 745 (1986), vacated and remanded on another issue, 482 U.S. 901, 107 S.Ct. 2475, 96 L.Ed.2d 368 (1987) (“A breach of contract is not in and of itself a tort.”); Just’s, Inc. v. Arrington Construction Co., Inc., 99 Idaho 462, 583 P.2d 997 (1978). In this case it would appear that the trial court and the plaintiff assumed there was a duty, a breach of which would amount to a tort. As a matter of law, this is error. A duty cannot be assumed; rather, the burden is on the plaintiff to prove its existence and subsequent breach.
In short, Reynolds’ complaint attempts to state a negligence claim against American Hardware. Claimant Reynolds has the burden of proving each prima facie element of a negligence claim, but the evidence Reynolds presented at trial failed to demonstrate any legally recognizable duty owed him by American Hardware. Since that threshold prima facie element was not proved, the legal analysis of Reynolds’ negligence claim is at an end. Accordingly, I would hold that, as a matter of law, Reynolds failed to establish his prima fa-cie negligence case, and thus the trial court erred when it failed to grant American Hardware’s motions for a directed verdict.
Although not pled by Reynolds, neither does the evidence he presented establish an intentional tort. In White v. Unigard Mutual Ins. Co., 112 Idaho 94, 730 P.2d 1014 (1986), this Court discussed in detail the intentional tort which exists where an insurance company fails to settle an insurance claim in good faith. While White confirmed that there is a common law duty on the part of insurers to settle first party claims in good faith, it also emphasized that any such claims are necessarily premised upon the insurer’s intentional delay in *372settlement or denial of a claim. Relief is grounded in the realization that an insured cannot be adequately compensated in contract law for an insurer’s intentional and unreasonable denial of a claim or delay in settlement.
Although the instant case was tried without the benefit of White v. Unigard, supra, it is clear that the complaint failed to state, and the evidence produced at trial failed to prove, a bad faith claim. Again, I stress that there is nothing in the record indicating that Reynolds alleged or attempted to prove that American Hardware intentionally delayed in settling Reynolds’ claim. Thus, this is not a case involving the intentional tort of bad faith failure to settle. The underlying claim was settled to Reynolds’ satisfaction, and the majority acknowledges as much, ante at 364, 766 P.2d at 1245.
By his evidence Reynolds attempted to show he had given American Hardware notice that he needed to have the claim settled before his lease expired. This notice, Reynolds argues, created the duty American Hardware is alleged to have breached. Reynolds’ notice, however, could not create a binding duty on American Hardware. If a duty existed it would stem from the insurance contract, but the contract was not put into evidence. Furthermore, if Reynolds’ claim was actually based on a duty to settle within a reasonable time, then he failed to present any relevant evidence regarding what could constitute a reasonable settlement time under the circumstances. In other words, even assuming arguendo that this theory of recovery is legally cognizable, Reynolds again failed to prove the standard of care (the duty) that would be applicable to American Hardware under it.
In sum, Reynolds’ rudimentary claim sought consequential damages based on the breach of some duty owed him by American Hardware, or, in the alternative, based on American Hardware’s intentional delay in settling his insurance claim. At trial, however, Reynolds’ evidence failed to demonstrate (1) a legally recognizable duty that was breached by American Hardware or (2) intentional actions or bad faith on American Hardware’s part in the settlement process.4 As a matter of law, then, Reynolds failed to establish his prima fa-cie case, and the trial court erred when it failed to grant American Hardware’s motion for a directed verdict.
Because Reynolds failed to prove the threshold element of any theory of recov*373ery, I would reverse the judgment below and dismiss the appeal with prejudice. Since this issue is dispositive, additional issues raised by the parties do not need to be addressed.
BAKES, J., concurs.. Although it apparently has been decided that Idaho recognizes a tort for an insurer’s intentional bad faith in settling first-party claims of its insureds (see discussion of White v. Unigard Mutual Ins. Co., 112 Idaho 94, 730 P.2d 1014 (1986), infra), it has not yet been decided whether Idaho recognizes a tort for negligent insurance settlement. Either way, the outcome of this case is the same. If Idaho does recognize such a tort of negligence, the plaintiffs action here must fail because he has failed to establish any of the requisite prima facie elements of a negligence claim. Conversely, if Idaho does not yet recognize a tort for negligent insurance settlement, this certainly is not the case to decide the issue since, again, no prima facie case has been made. Reynolds has not established a duty, a breach of that duty, or proximate causation. Accordingly, this case simply is not a proper case upon which to base such a new tort.
. Even if we assume that Reynolds had proved either a negligent or an intentional tort, the evidence produced at trial on the issue of causation was inadequate to go to the jury. Both Mr. Carrie (president of Paradise Resorts, Inc.) and Mr. Reynolds indicated that the property was abandoned by Reynolds at the property site. Reynolds explained that the property was never recovered because he had lost the rights to it under the lease. Carrie testified that Paradise never intended to keep Reynolds’ property. In fact, at the time of trial some items were still at the building site and others were located in a Paradise warehouse. The lease is somewhat ambiguous. It reads as follows:
"4. TRADE FIXTURES. The lessee may install upon the leased premises such trade fixtures as the lessee deems advisable, which fixtures shall be and remain the property of the lessee even though attached to the building. The lessee shall have the right to remove such fixtures from the leased premises at the time of the expiration of this lease or any renewal hereof or at any time prior thereto, at the same time repairing any damage to the premises caused by such removal." (Emphasis added.)
Carrie also testified that even though Paradise was not renewing the lease, Reynolds could have continued his business on a month to month basis until a new tenant was located. Both men testified that Reynolds never contacted Carrie about removing the equipment from the premises.
Thus, Mr. Reynolds apparently abandoned the property at the site. This action took place even though the electronic pump monitoring devices and other equipment could have easily been removed by Mr. Reynolds in his vehicle. Additionally, there is evidence that four days before Reynolds’ lease expired there was four feet of snow on the ground and it would have been impossible for him to remove the tanks at that time because of the snow. There is absolutely no evidence that on May 1st conditions had changed. In fact, the record is without evidence that American Hardware’s actions were a more significant cause of Mr. Reynolds’ loss than either the weather or Mr. Reynolds’ own actions. Accordingly, Reynolds not only failed to show a legally cognizable duty (or a breach of that duty) at trial, but he also failed to prove the elements of causation.