(concurring in part and dissenting in part.)
While I concur in the ruling of the majority that a diaphragmatic hernia is not a hernia within the meaning of the exclusion clause embodied in Article IV of the policy, it can hardly be said that the question for decision is so one-sided that the insurer did not have just and reasonable grounds in denying plaintiff’s claim under the policy without subjecting itself to the penalties provided by R.S. 22:657. It appears to me that the fact that a majority of the Court of Appeal for the First Circuit upheld the position taken by the claims manager amply demonstrates that his denial of liability was not groundless. The circumstance that the manager failed to consult the company’s medical director or examine the legal authorities which plaintiff’s counsel offered to furnish him does not affect the company’s right to deny liability under the policy unless his action in doing so was unreasonable. To conclude that, under a policy excluding coverage for hernia, it is unreasonable to deny liability when the assured’s ailment is diagnosed as a diaphragmatic hernia (in the absence of Louisiana jurisprudence holding that such hernias are excluded from the exclusion clause) strikes me as the equivalent of saying that the insurer may not contest its liability in any case without subjecting itself to statutory penalties in the event it is cast in judgment.
The cases of Campasi v. Mutual Benefit Health & Accident Ass’n, 207 La. 758, 22 So.2d 55; Ayres v. New York Life Ins. Co., 219 La. 945, 54 So.2d 409 and Phelps v. Southern National Insurance Co., La.App., 83 So.2d 463, cited by the majority, involve situations different from that presented in this case and are, therefore, distinguishable.
I respectfully dissent from that part of the decree assessing the defendant with penalties.