dissenting:
There is no dispute over the operative facts. Plattner represented the Malloques in an action against State Farm. The action was in two counts: breach of contract for failure to pay medical benefits under an automobile liability insurance policy and a bad faith tort claim. The underlying facts giving rise to this action arose out of an automobile accident in which Sharon Malloque suffered injuries. The Malloques’ State Farm policy had $5,000.00 in medical payment coverage. In October 1984, Neil Swiebel, a State Farm claims representative, sent a check to the Malloques in the sum of $843.00 together with a copy of Dr. Larry Kaufman’s report that supported this payment. On November 29, 1984, this action was commenced.
During the course of this litigation, Dr. Kaufman’s deposition was taken. Based upon a summary prepared by Ralph Hunsaker, State Farm’s attorney, State Farm authorized Hunsaker to pay the balance of the medical payment benefits to the Malloques. Hunsaker wrote to Plattner on March 19, 1985:
I am writing to inform you that State Farm has authorized me to offer to pay the medical pay coverage in this case, up to and including the $5,000 coverage, less $843 already paid under that coverage. If you and your client will let me know your wishes in this regard we can conclude this litigation.
On March 21, 1985, Swiebel wrote Plattner:
Reference to Mr. Hunsaker’s letter of March 19, 1985, we are pleased to enclose herewith our draft # 720 132 Q in the amount of $4,157.00, representing the balance of the available amount under insured’s Medical Payment Coverage.
No releases were included in either letter.
On or about March 25, 1985, Plattner called Hunsaker concerning State Farm’s intent as to what the draft was supposed to cover. Hunsaker allegedly referred Plattner to Swiebel for clarification. Plattner then called Swiebel, and Swiebel allegedly told Plattner that the draft was tendered as a complete settlement of all claims against State Farm, including the bad faith claim. On December 12, 1985, during the deposition of Manuel Mendoza, claims consultant for State Farm, Plattner attempted to establish that State Farm had tendered the medical payment conditioned upon settlement of the bad faith claim. Hunsaker objected to this line of questioning as assuming facts not true, and stated that State Farm had tendered the balance of medical payment coverage “with no strings attached.” Hunsaker followed this by a letter on January 16, 1986 to Plattner asserting that State Farm’s tender of medical payments was never conditional.
Plattner withdrew from representation of the Malloques because he was a witness to the conversation between himself and Swiebel, which he contended would establish a second claim for bad faith against State Farm. Prior to his withdrawal, Plattner had offered to settle the litigation for $25,000.00. State Farm subsequently settled the matter with the Malloques’ substitute counsel for $40,000.00.
Plattner then sued State Farm for intentional inference with his contractual relationship with the Malloques. The trial court granted summary judgment against Plattner and assessed attorneys’ fees against him under A.R.S. § 12-349.
State Farm argues that, in the area of attorney/client relationships, the only recognized cause of action for intentional interference with contractual relationships is when the client is induced to breach the contract. State Farm Mutual Ins. Co. v. St. Joseph’s Hosp., 107 Ariz. 498, 489 P.2d 837 (1971). However, I concede that a cause of action might arise where a third party prevents an attorney from performing his contractual obligations. See Restatement (Second) of Torts, § 766A (1979). I will therefore analyze Plattner’s cause of action based upon an analysis of that section.
Section 766A provides, in part:
*321One who intentionally and improperly interferes with the performance of a contract ... between another and a third person, by preventing the other from performing the contract ... is subject to liability to the other for the pecuniary loss resulting to him.
(Emphasis added.) Because I believe that Plattner did not introduce evidence that State Farm “intentionally and improperly” prevented him from performing his contractual relationship with the Malloques, I believe summary judgment was proper under any standard.
Plattner alleges that the interference occurred, in part, because Hunsaker was unprepared for trial. Therefore, according to Plattner, in March 1985, State Farm had Hunsaker write an ambiguous letter to Plattner tendering the medical payment cheek. In the meantime, Swiebel would write an equally ambiguous letter to Plattner enclosing the check. Knowing Plattner would call Hunsaker to clarify the ambiguity, Hunsaker would refer him to Swiebel who would tell Plattner the tender was conditional.
Then, in January 1986, State Farm instructed Hunsaker to spring the trap previously set by informing Plattner that the tender was not conditional, thus requiring Plattner to become a witness and cause him to withdraw. Unfortunately, neither Plattner nor the majority indicates how State Farm knew in March 1985 that Hunsaker would be unprepared to go to trial ten months later so as to at that time lay the groundwork for the later intentional interference.
More importantly, as comment (a) to § 766A makes clear: “In order for the actor to be held liable, this Section requires that his. interference be improper.” The majority opinion is not clear as to what act of State Farm constituted improper interference. Presumably, it was the act of Hunsaker contending that the tender of the medical payment check was unconditional, which in turn forced Plattner to prove that the tender was conditional. The simple fact of the matter is that Plattner placed himself in the position of being a witness to an alleged act of bad faith by State Farm. Plattner hoped to use that alleged act to obtain monetary damages on behalf of his client from State Farm. There is nothing improper on the part of State Farm, before it parts with its money, requiring the proof of the act. If that proof required Plattner to become a witness and thus withdraw as counsel, that was simply the price to be paid.
In assessing the evidence in a pre-Orme School context, the trial court not only found that summary judgment was warranted, but also granted attorneys’ fees against Plattner because the claim was “groundless and frivolous in the extreme.” I agree. I would affirm the grant of summary judgment and the trial court’s award of attorneys’ fees against Plattner. I would also award State Farm its attorneys’ fees on appeal based upon the frivolousness of this appeal.