concurring and dissenting.
I concur with the majority with the exception of that portion of the opinion regarding common law punitive damages. As to the majority’s opinion on punitive damages, I respectfully dissent. An arsonist reduced the Garzas’ home and its contents to a smoldering heap of trash. Aetna contracted to protect Garza from the ruin that follows such a tragedy. Instead, Aetna held Garza over the flame for two years until a court finally forced Aetna to play fair. What should we call the game that Aetna played when it refused to compensate Garza for two years ? I call it malice. The jury called it malice. Considering the chronicle of Aetna’s contemptible maltreatment of Garza that was presented to the jury, no reasonable jury could have found otherwise.
Aetna knew, shortly after the fire, that neither Mr. nor Mrs. Garza destroyed their own property. Aetna refused to pay. Aetna knew that Mrs. Garza had a life-long illness that formerly confined her to a wheelchair, that her house was specially equipped for her condition, and that she had lost nearly everything she owned in the house. Aetna refused to pay. A year and a half after the fire, and after numerous requests from Garza, Aetna finally allowed her to see a copy of her own insurance policy, but only when ordered by the court to do so. Aetna did not, however, pay. When Aetna finally decided to pay, it tendered $28,624.55 for “structural damage” to a fire-gutted home that was insured for $111,000. The majority claims that this amounts to no more than a scintilla of evidence of malice. Quite the contrary, the evidence of Aetna’s conduct screams malice.
The majority’s reliance on portions of Mor-iel is too selective. The majority points to the vague declaration that:
In general ... an insurance earner s refusal to pay a claim cannot justify punishment unless the insurer was actually aware that its action would probably result in extraordinary harm not ordinarily associated with breach of contract or bad faith denial of a claim — such as death, grievous physical injury, or financial ruin.
Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 24 (Tex.1994). A finding of malice is not, however, solely contingent upon the foreseeability of “death, grievous physical injury, or financial ruin.” As noted in Mor-iel, “some forms of insurance, such as disability insurance, may be such that insurers frequently can expect that bad faith denial of coverage will result in such an extraordinary degree of hardship and oppression that punishment would be warranted.” Id. It would be incredible to maintain that, in unjustifiably withholding payment from Garza for so long after her home and possessions were incinerated, Aetna could not reasonably expect a result of extraordinary hardship and oppression.
Aetna surely had Garza under its thumb. By insisting that Garza perform obligations under the policy while refusing to even provide a copy of the policy is, as the majority notes, evidence of bad faith. I disagree that it is no evidence of malice. The game itself was contemptible, but the manner in which it was played was malicious. Considering the duration of Aetna’s belligerence, its unreasonableness, and the dire consequences for Garza, Aetna’s conduct certainly went “well beyond that which justifies an affirmative finding of a breach of the duty of good faith and fair dealing.” Automobile Ins. Co. v. Davila, 805 S.W.2d 897, 908 (Tex.App.—Corpus Christi 1991, writ denied), overruled on other grounds by Hines v. Hash, 843 S.W.2d 464 (Tex.1992). Under either of the two contested definitions of malice, the record before this court reeks of malice. The jury detected it and so do I. I would, therefore, affirm the trial court’s award of punitive damages.