dissenting.
In general, the majority’s statement of the factual background is accurate, but in order to understand the extent of bad faith involved some amplification is necessary. The defendant, through its local counsel, notified plaintiffs’ lawyer on March 28, 1973, that tender of the defense would not be accepted. No particulars were given other than the assertion that the policy did not provide coverage. The record discloses that neither defendant’s nor counsel’s files contain any notes or memoranda indicating how or why the initial decision to refuse to defend was made or even who made the decision. Correspondence continued between plaintiffs’ lawyer and defendant’s local counsel, in which plaintiffs’ lawyer sought a more detailed reason for the rejection of the tender of defense. The agent through whom the insurance was written also urged the defendant to undertake the defense. Near the end of April defendant’s local adjuster asked the defendant’s home office to review the case to determine whether plaintiffs were entitled to a defense by defendant. By memorandum dated *469May 2, 1973, and apparently received in Oregon on May 7, 1973, the home office in effect advised that defense with some reservation of rights be undertaken. Upon oral argument before this court, defendant’s counsel conceded that the superintendent of claims in defendant’s Portland office had knowledge of the memorandum about May 9, 1973. An amended complaint was filed against these plaintiffs approximately May 30, 1973, and defense upon the amended complaint was again tendered to defendant. The Eugene claims adjuster, by memorandum dated July 6, 1973, to the Portland superintendent advised the latter that defendant’s local counsel believed defense should be undertaken by defendant. The superintendent received this memorandum on July 9, 1973, and wrote on it the following: "I do not disagree but lets [sic] bluff it out we can always buy out at a later date.”1
Based upon this decision by the Portland superintendent, defendant refused to undertake the defense, which resulted in plaintiffs defending the action themselves with the consequences described in the majority opinion.
In the first paragraph of the majority opinion the following sentence appears: "This case has previously been before this court, but no decision was there made which affects the issues presently in controversy.” I agree that the decision there was simply that the lower court erred in sustaining this defendant’s demurrer to plaintiffs’ complaint upon which the case at bar is pursued. The lower court had also stricken from the complaint plaintiffs’ claim of damages for mental anguish and that ruling was assigned as error. In this respect we said in part:
"* * * Some jurisdictions, under evidence of aggravated circumstances, have allowed the insured in a liability policy to recover damages for mental anguish against the insurer. Cases collected in Annotation, 47 *470ALR3d 314, 335-338 (1973). We conclude as a matter of policy that when there is an unaggravated breach, such as alleged in the complaint, damages are not awarded for mental anguish. We do not decide what the result would be if there was evidence of an aggravated breach; that is, one, for example, made in bad faith or otherwise.” (emphasis added) 273 Or at 638.
It is obvious, therefore, that this court left open the possibility of recovery of damages for mental anguish where the insurer is guilty of an "aggravated breach” which was treated as being equivalent to a breach "made in bad faith.” It is significant that this court recognized the possibility of recovery of damages for mental anguish for a bad faith refusal of the insurer to defend. The court was not there dealing with the case of an insurer’s bad faith failure to settle within the policy limits. It is true the matter quoted is dictum, but it would be odd to suppose that it was set forth idly rather than as a signal.
The majority opinion moves on to a discussion of provisions of the Insurance Code. That discussion assumes that a request by the insured that the insurer defend in accordance with the policy is a "claim” as used in ORS 746.230 and quotes a part of that section:
"(1) No insurer or other person shall commit or perform any of the following unfair claim settlement practices:
* * * *
"(f) Not attempting, in good faith, to promptly and equitably settle claims in which liability has become reasonably clear;
sfr sfi *
I regard it to be at least somewhat questionable whether a request to defend is a "claim” as used in the section but will regard it as being so for this part of this opinion. It appears that certain other paragraphs of ORS 746.230(1) are arguably applicable:
"(a) Misrepresenting facts of policy provisions in settling claims;
******
*471"(m) Failing to promptly provide the proper explanation of the basis relied on in the insurance policy in relation to the facts or applicable law for the denial of a claim.”
I agree with the majority that these statutory provisions apply to claims arising out of liability insurance as well as collision, fire or theft insurance, but I don’t see what difference that makes in the case at bar. This is not a case where the insurer is charged with committing unfair claim settlement practices with respect to a claim against its insured on a liability policy. Assuming, as we have, that this is a claim within the purview of the statute, this claim is directly by the insured against the insurer.
The majority concedes that it is "possible” to contend that "defendant’s violation of the statute” is a tort. Since any contention by anyone is "possible,” I assume the majority means that it is an arguable contention. I agree with the majority (given our assumption this is a "claim”) that the defendant violated the statute. Again, however, I am troubled by the majority’s desire to discuss the question posed, for they say:
"* * * It is not our understanding that plaintiffs make this contention [that violation of the statute is a tort].* * *”
If that is truly their understanding, I fail to see why they discuss it at all, let alone purport to decide that the statutory violation does not give rise to a private action by the injured claimant.
It is not clear to me whether plaintiffs do make the contention, for in this respect they say in their brief:
"ORS 746.230 is the legislature’s expression-of the type of insurance company practices which it considers unfair (some of which were obviously employed in this case). Our case is a good example of why a private legal action should be one of the remedies available to control bad faith and unfair practices of insurers. The insurance commissioner would simply not have the staff nor time *472to investigate each denial of coverage or refusal to settle in the manner required to uncover evidence such as that presented in this case.”
Arguably they do make the contention, and arguably the contention is a valid one.
The majority says that the legislature has imposed civil penalty liability in favor of the state for the statutory violation, and if it had intended enlargement of the liability to respond in damages in private litigation for mental anguish or emotional distress, it would have said so. Concludes the majority:
"* * * The statutes express no public policy which would promote damages for emotional distress. Concern about the insured’s peace of mind does not appear to be the gravamen of the statutory policy.”
The majority does not tell us what it believes to be the "gravamen” of the policy. It may well be that it was not "the insured’s peace of mind.” It is obvious that the legislature perceived certain insurance company conduct as being societally undesirable, made it illegal and provided for at least one form of sanction in the prescribed action by the insurance commissioner. Since disruption of the insured’s peace of mind naturally and foreseeably follows upon such conduct, it may well be that one of the purposes of the legislature in decrying that conduct was to provide peace of mind to insureds in this state, and, if so, the private action for damages for disruption of that peace of mind is a valuable tool in forwarding the legislatively declared public policy.
Since the legislature did not expressly make the civil penalty the exclusive sanction for the proscribed conduct, what policy is advanced by the court in doing so? Why the tender concern for the wrongdoer? Because I am not sure the point of "tort per se” is at issue, however, I see no reason to discuss it further.
Following this initial discussion of the statutory implications (and leaving exclusivity of remedy for *473later consideration), the majority turns to the issue of whether there is a common law tort, a contention surely made by the plaintiffs. After recognizing that the courts hold the insurer to a duty of "good faith” in investigating the facts and in attempting to settle liability claims within the policy limits, the majority says that the plaintiffs here seek to use the "language” of such cases to prevail. The majority then says that whether the recognized cause arises in contract or tort has not been decided by this court. Radcliffe v. Franklin Nat. Ins. Co., 208 Or 1, 298 P2d 1002 (1956), is cited for indicating the cause is in tort. Groce v. Fidelity General Insurance, 252 Or 296, 448 P2d 554 (1969), is cited for the proposition that because the cause of action is in contract it is assignable. I do not read Groce exactly so to hold. In Groce the court said:
"* * * The right to expect one’s insurer to exercise good faith in the settlement of claims is a valuable contract right. The insurer reserves absolute control over negotiation and litigation. The insurer owes a duty to exercise this control in good faith to protect the insured. See cases collected in the Annotation, 40 ALR2d 168 (1955). Even if the insurer’s breach of its reciprocal obligation of good faith may be said for certain purposes to be tortious, the cause of action arising from such breach is one that affects the insured in his property, as distinguished from his person, and so ought to be as capable of assignment and survival as any other contract right * * *” (emphasis added) 252 Or 296, 302.
Groce mixes together two independent bases of assignability. Generally speaking, choses in action arising out of contract are assignable. Choses in action arising ex delicto from injury to one’s property, as distinguished from one’s person, are generally assignable.
"* * * Any claim which affects the estate of a party, although arising out of tort, may be assigned; but the rule is otherwise where it arises out of an injury to the person. An assignment of a mere litigious right is invalid; but an assignment of property is valid, although *474that property may be incapable of being recovered without litigation. * * *” Rorvik v. North Pac. Lumber Co., 99 Or 58, 91, 195 P 163 (1921).
See also, for general discussion, 6 Am Jur 2d, Assignments 218 et seq.
As noted in the majority opinion, Radcliffe indicates the cause is in tort. As early as 1954 Professor Robert E. Keeton stated, "Usually this duty is treated as one sounding in tort rather than contract.” He cited cases from 10 jurisdictions as support for the quoted statement. Keeton, Liability Insurance and Responsibility for Settlement, 67 Harv LR 1136, 1138 n.5 (1954). The majority then assumes, without deciding, that the cause is one in tort. I would decide that it is.
The majority then finds that when the insurer has undertaken to defend the insured and in bad faith fails to settle within the policy limits, the insurer is liable to the insured for recovery in excess of the limits because the insurer "is charged with acting in a fiduciary capacity as an attorney in fact representing the insured’s interest in litigation.” (emphasis added) The majority then purports to distinguish the case at bar because the defendant, by refusing to undertake the defense, "did not undertake this fiduciary duty” and "never undertook any fiduciary duty.” This distinction purports to rest upon some extensive dicta in Santilli v. State Farm, 278 Or 53, 562 P2d 965 (1977), and the rejection of the reasoning and results in certain cases from the jurisdiction of California.2
*475The language quoted from Santilli does not mention the term "fiduciary” in the discussion of whether there should be different rules concerning the consequences of insurer bad faith in connection with liability policies, on the one hand, and life insurance policies on the other. Since there is no citation of authority for injecting the term "fiduciary” into the majority’s analysis, I assume it to be "cut from the whole cloth.”3
It is obvious that what the majority has done is simply to pin a label on the insurer to be used when the insurer has been guilty of one kind of bad faith breach of its contract and to deny application of the label in other kinds of bad faith breaches. By thus withholding the label the majority can then conclude that there is no breach of a duty imposed by law which will permit recovery of damages for mental anguish or emotional distress.
Before proceeding to analyze what the majority has hidden behind the label, I should like to point out that the Pennsylvania Supreme Court has had occasion to use the term "fiduciary” in connection with the insurer’s obligations to the insured under a contract of liability insurance, but that court does not find that the insurer becomes a fiduciary only when it undertakes to perform under its contract. The Pennsylvania court finds the insurer is held to the duty imposed by law upon a fiduciary because of the insurer’s right to control the litigation of claims against the insured, not because of the exercise of the right. In Gray v. Nationwide Mutual Insurance Company, 422 Pa 500, 223 A2d 8, 9 (1966), the court quotes with approval from Cowden v. Aetna Casualty and Surety Company, 389 Pa 459, 134 A2d 223 (1957):
"* * * [B]y asserting in the policy the right to handle all claims against the insured, including the right to *476make a binding settlement, the insurer assumes a fiduciary position towards the insured and becomes obligated to act in good faith and with due care in representing the interests of the insured. * * *” 223 A2d 9.
Similar language from Gedeon v. State Farm Mutual Automobile Insurance Company, 410 Pa 55, 188 A2d 320 (1963), is also quoted in Gray.
What is hidden behind the majority’s use of the label is simply the conclusion by the majority that a bad faith breach by the insurer after undertaking performance of the contract is somehow different from a bad faith breach in refusing to perform at all. That distinction makes no sense to me. A breach of contract, perforce, is a failure to perform according to the terms of the contract. From the insured’s standpoint, it can make little difference to him at what point in time his insurer in bad faith injures him and his property.
The discussion in Santilli did not seek to distinguish between kinds of breaches in liability contracts and did not rule that tort liability for an insurer’s bad faith breach of a liability insurance contract is limited to the time of performance.
The "performance” of a liability insurance contract is not the only point in the relationship between the liability insurer and insured for which this court has indicated its concern. A line of decisions by this court has held that in case of any doubt about coverage the insurer has a duty to defend. In an earlier decision involving this same case, Farris v. U.S. Fidelity & Guaranty, 273 Or 628, 635, 542 P2d 1031 (1975), we quoted with approval from Blohm v. Glens Falls Ins. Co., 231 Or 410, 416, 373 P2d 412 (1962): "Thus, if the complaint is ambiguous or unclear and may reasonably be interpreted to include an incident within the coverage of the policy, there is a duty to defend.” In Farris we held that U.S. Fidelity & Guaranty had in fact a duty to defend the insureds. In Casey v. NW *477Security Ins. Co., 260 Or 485, 489, 490 P2d 208 (1971), we stated:
"The difficulty arises when there is doubt as to coverage. This doubt sometimes cannot be resolved until a judgment is entered in litigation between the insured and the insurer. This is too late; the lawsuit by the injured party has been filed and probably gone to judgment before this time. The insurer has contracted with its insured to defend him. This benefit to the insured would be curtailed if it could be withheld in the event of a dispute about coverage. For this reason we have adopted the rule that in the absence of any compelling evidence of no coverage, the insurer owes a duty to defend if the injured claimant can recover under the allegations of the complaint upon any basis for which the insurer affords coverage.” (emphasis added)
As the above cases indicate, a liability insurer owes a special obligation to an insured to defend him if there is any doubt about whether the insured is covered by the policy. It is "too late” to wait for a determination of the coverage issue. This special responsibility of the liability insurer arises because of the special relationship between it and the insured. As noted in Casey, at 489, "The insurer has contracted with its insured to defend him.” In fact, the basis of liability insurance is not just the assumption of actual cost and losses that result from a lawsuit but also the assumption of the risk of being sued, of the selection of an attorney, of the responsibility and control of the litigation, and even of the risk of losing. It is because of this special responsibility and relationship arising from the contract, rather than any implied covenant of good faith in the insurance contract, that the law imposes a duty of good faith on the insurer and thus the bad faith breach of a liability insurance contract is a tort.
The above duty to defend cases did not involve tort liability for the refusal to defend. However, bad faith was not at issue in those cases. Here not only did the insurer have doubts about coverage, which this court has held imposes a duty to defend and an obligation to *478pay for any costs and losses, but the insurer was also aware there was coverage and decided to bluff it out.
This is not just "a plain case of intentional breach of contract,” as the majority characterizes the incident, but rather a blatant bad faith refusal to defend the insured. To bluff and, only if necessary, buy out later is in gross disregard of the insurer’s responsibility to its insured. To deny tort liability for this bad faith because it did not occur during the performance of the contract amounts to a distinction without a difference to the insured. On the one hand the insurer prefers to go to trial rather than settle within the policy limits, resulting in the insured suffering a judgment in excess of the policy, and on the other hand the insurer refuses to defend at all, leaving the insured to pay for all costs and losses. In both cases the insured may have difficulty ascertaining whether the insurer is acting in good faith. If he believes he has been wronged, the insured is also forced to sue the insurer. Applying the majority’s "performance” distinction, however, the insured in the first circumstance may seek a tort recovery in addition to contract damages, but in the second circumstance the insured is limited to recovery of the contract damages.
In fact, under the majority opinion in this case of bad faith refusal to perform the liability insurance contract, all the insurer has to lose is the costs and losses it would have borne anyway if it had accepted the case. If anything, a liability insurer intending to breach its contract in bad faith is encouraged to do so at the outset rather than risk the tort liability applicable to bad faith breaches in performance.
The majority opinion asserts that damages for emotional distress should not be recoverable here because contracts for services, materials or financial assistance are similarly made for economic and financial peace of mind. Further, the majority argues that the suffering is not any greater, any less, or any more certain than in the case of breach of other contracts; *479however, as discussed above, part of the uniqueness of the relationship between the liability insurer and insured is that the insurer accepts the risk of being sued and dealing with a lawsuit. When an insurer refuses performance, he not only refuses to compensate a loss, if any, but also to assume the risk there may be a loss. That assumption of risk is the source of emotional distress being sued for here, not just the emotional distress of actually paying the settlement and attorney fees.4
It is simply unrealistic any longer to treat insurance policies as traditional private contracts. To do so ignores the real relationship between an insurer and small businessmen such as these plaintiffs. They do not have the bargaining power to obtain particular contract terms. A comprehensive liability policy such as is in evidence in this case is not a negotiated agreement. The matters of terms and premiums are almost completely uniform. It is only in the servicing of the agreement that insurers truly may be said to compete for the business of the ordinary purchaser of insurance. The policy of the kind here is largely a contract of adhesion. R. Keeton, Insurance Law § 6.3(a) (1971).
The majority refers to ORS 746.230(l)(f) and opines that the duty extends to third party claims. With this I agree. With the majority’s further opinion, that the action by the Insurance Commissioner for civil penalties is the exclusive remedy,5 I do not agree. The *480legislature, in proscribing insurer conduct involving bad faith has declared the public policy of this state. I believe this proscription has completely taken away from the insurer the "right” to breach its contract which is enjoyed by the ordinary businessman.6 In this respect the majority indicates that many business contracts are made for the purpose of financial protection and assurance. The people have not yet declared intentional breaches of these ordinary business contracts to be against public policy except insofar as that conduct gives rise to a cause of action for damages. With respect to insurance, however, the statutory language places a duty to perform in the law rather than in the contract. I have already discussed that I find a common law duty to exercise good faith arising out of the relationship of insurer and insured. This duty is one imposed by law. It is not found in the contract. The contract only creates the relationship from which the law imposes the duty. It is certainly arguable that a cause of action arises from disobedience of the statute which also imposes such a duty to act in good faith arising out of the relationship which was created by the contract.
In summary, I believe these plaintiffs have a cause of action for damages for mental anguish for the insurer’s breach of its duty to act in good faith. I find it in the common law, but it may well also exist by reason of the statute. I find, moreover, that there is nothing to indicate that the legislature intended the collection of civil penalties, ORS 731.988, by the Insurance Commissioner to be an exclusive remedy.71 *481have discovered nothing in the legislative history to indicate that the legislature gave any thought whatsoever to exclusivity of remedy or, on the other hand, to creation of a private cause of action for violation of the statute.
The majority opinion impliedly assumes the continued vitality of the third party, excess recovery, common law action for bad faith by the insurer "in the performance” of the insurance contract. See Radcliffe v. Franklin Nat. Ins. Co., 208 Or 1, 38, 298 P2d 1002 (1956), which had been on the books for several years prior to this legislation. Also, note the want of legislative activity following upon later cases, such as Eastham v. Oregon Auto Ins. Co., 273 Or 600, 607, 540 P2d 364 (1975). If one can conclude that the legislature has made ORS 731.988 civil penalties the exclusive remedy with respect to bad faith remedies, how does one draw the line between those cases and the case at bar? Certainly there is no legislative history cited by the majority or in existence to indicate that the legislature intended to abolish private recovery in those cases. The obvious answer is that the legislature gave no thought to the question of the continued existence of the common law right of recovery in those cases, and neither did it give any consideration to whether other common law remedies might be fashioned to carry out the very policy which gave rise to the statutory injunction against insurer bad faith.
In addition to damages for mental anguish, punitive damages are also recoverable here. As this court held in Butler v. United Pacific Ins. Co., 265 Or 473, 477, 509 P2d 1184 (1973), punitive damages are a penalty assessed for the purpose of deterring certain conduct. The conduct to be deterred here is a liability insurer refusing in bad faith to defend its insured, intending to "bluff it out.”
Because of the disposition of this case by the majority, it has been unnecessary to consider certain claimed errors with respect to instructions on punitive *482damages. Were my opinion to be adopted, resolution of that claim of error would be necessary, but there is nothing to be gained by my discussing it in this dissent.
I respectfully dissent.
Tongue, J., joins in this dissent.Compare this quotation with that in the majority opinion.
Some of the California cases are concerned with harassment and delay by the insurer. The majority opinion concludes that we are not concerned here with a case of harassment or delay. It is difficult for me to understand, in light of defendant’s conduct described in this and the majority opinion, what is the subject of our concern if it is not at least delay. Plaintiffs have been attempting to vindicate their rights under the policy from the spring of 1973 until now. I have little trouble, in light of the conduct of the defendant’s Portland superintendent and the jury’s resolution of the fact issues, in finding there has been harassment. I do not intend, however, to base this dissent upon the ground of harassment or delay except insofar as they are involved in denominating defendant’s breach as being one made in bad faith.
I have no objection to arriving at conclusions or rules without citation of earlier authority. If the conclusion or rule be sound, the case expounding it may itself be cited for authority in later cases. I simply make the point that the majority’s use of the term "fiduciary” is not found in Santilli.
That insurers sell their product as being not only an agreement to indemnify the insured for certain kinds of loss but also to relieve the purchaser from anxiety concerning all aspects of claims is readily apparent in our society. One cannot watch nationally televised entertainment for very long without being exposed to commercials for the sale of insurance which, for example, indicate that the purchaser will be in "good hands,” that he will have the assistance of a troop of mounted cavalry, that he has "a piece of the rock,” or that "like a good neighbor” the insurer will be there. As such advertisements reflect, the relationship between insurer and insured does not merely concern indemnity for monetary loss.
I find this is just another way of asserting legislative "preemption,” which is a concept I thought the majority had abandoned before arriving at the final form of its opinion.
Compare the language from the majority opinion:
"* * * It is evident from the statutes that it was the intention of the legislature to prohibit insurance companies from intentionally breaching their contract * * *”
As a matter of fact the statute, ORS 731.988, which is quoted in part in the majority opinion provides in subsection (5) that the penalties are in addition to and not in lieu of other enforcement provisions contained in the Insurance Code. The Insurance Code provides for enforcement of certain provisions by private action and makes attorney fees recoverable in addition to damages as a part of the "big stick.”