dissenting. Bad faith means “conduct that is dishonest, oppressive, or malicious.” AMI Civil 2004, 405. An insurance company commits the tort of bad faith when it affirmatively engages in dishonest, malicious, or oppressive conduct in order to avoid a just obligation to its insured. State Auto Property & Casualty Ins. Co. v. Swaim, 338 Ark. 49, 991 S.W.2d 555 (1999). The majority concludes that there is insufficient evidence to support the jury’s verdict of bad faith. I must respectfully disagree. Upon considering only the evidence favorable to Edwards and with deference to the jury’s resolution of the issues unless there is no reasonable probability to support the version advocated by Edwards, I believe that there is substantial evidence to support the jury’s verdict, especially in light of our recent decision in Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. 423, 64 S.W.3d 720 (2002).
In Columbia Nat’l Ins. Co. v. Freeman, supra, we were asked to determine whether the circuit court properly denied the insurance company’s motion for directed verdict. In that case, a fire caused major damage to a store owned and operated by the appellees, Gary and Peggy Freeman. The appellees were insured against losses to the building, its contents, and continuing business expenses by appellant Columbia National Insurance Company. When the appellant failed to pay continuing business expenses and provide a temporary office facility, the appellees filed a complaint alleging, among other things, the tort of bad faith. At trial, the court determined that there was sufficient evidence of bad faith to submit the issue to the jury. The jury returned a verdict in favor of the appellees. On appeal, we analyzed all the circumstances that formed the basis of the appellees’ claim of bad faith: (1) appellant acted in bad faith when it failed to pay appellees’ ongoing business expenses; (2) appellant acted in bad faith when it failed to provide a temporary location for their business; (3) appellant acted in bad faith when it failed to comply with an agreement reached for the cost of building repairs; (4) appellant acted in bad faith when it altered the appellees’ claim file; (5) appellant acted in bad faith when it falsely accused appellees of being uncooperative; and (6) appellant acted in bad faith when it paid the lower of two appraisals. In affirming the trial court’s denial of appellant’s motion for a directed verdict, we concluded that each of these circumstances constituted substantial evidence to support the jury’s verdict that appellant’s actions were “oppressive conduct carried out with a state of mind characterized by ill will.” Columbia Nat’l Ins. Co. v. Freeman, 347 Ark. at 431, 64 S.W.3d at 725.
Prior to this court’s decision in Columbia Nat’l Ins. Co. v. Freeman, our case law affirming judgments for bad faith had addressed circumstances where the conduct on its face was dishonest, malicious, or oppressive. For example, in Southern Farm Bureau Cas. Ins. Co. v. Allen, 326 Ark. 1023, 934 S.W.2d 527 (1996), the insurance company lied when it stated there was no insurance coverage. Similarly, in Viking Ins. Co v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992), there was evidence of aggressive, abusive, and coercive conduct by the claims representatives. In Employers Equitable Life Ins. Co. v. Williams, 282 Ark. 29, 665 S.W.2d 873 (1984), the carrier intentionally altered insurance records. In all of these cases, proof of the act itself constituted substantial evidence of bad faith. Arguably, until Columbia Nat’l Ins. Co. v. Freeman, supra, the test for determining the merits of a directed-verdict motion was whether the alleged misconduct itself manifested dishonesty, malice, or oppressiveness. Accordingly, we have reversed a jury’s verdict for bad faith when the testimony only established that the insurance company was giving the insured the “run around” and taking a long time to make payment. See State Auto Property & Casualty Ins. Co. v. Swaim, supra. Under Columbia Nat’l Ins. Co. v. Freeman, supra, this court merely recognized that a claim for bad faith can survive a directed-verdict motion even when the conduct on its face is not dishonest, malicious, or oppressive. To illustrate, in Columbia Nat’l Ins. Co. v. Freeman, supra, the act of declining to pay ongoing business expenses based on inadequate documentation was not in and of itself misconduct. Yet, we concluded that the issue of whether the insurance company had in fact received adequate documentation was for the fact finder to resolve based on the credibility of the witnesses. Id.
In this case, Unum made the following admissions:
• It erroneously identified Edwards as a Laboratory Technician although she was in fact a Certified Technologist II;
• It erroneously concluded that Edwards worked two jobs following her injury;
• It used an inapplicable definition of disability in the denial letter; and
• It claimed to have forwarded Edwards’s medical records to two in-house medical professionals for review when, in fact, Unum sent only portions of the records to three physicians, and omitted entirely the results of one of those reviews. The following statement is located within Dr. Alan Cusher’s internal memo, dated November 2, 2000: “I would like to point out that I did not review the entire file as your note suggests but only selected documents that were forwarded to me.” This evidence indicating that the insurance company was “cherry picking” Edwards’s medical records to send to its experts could be considered by the jury in determining whether Unum’s actions were the result of “ill will.”
Moreover, the jury’s verdict of bad faith is supported by the insurance company’s denial letter and its physicians’ memos regarding Edwards’s diagnosis. Specifically, the denial letter affirmatively stated that Edwards’s cognitive impairments were unrelated to her 1994 bicycle accident. The following excerpts from the denial letter illustrate this point:
Our mental health clinician stated that it is illogical for an individual to sustain a progressive disease in cognitive functioning after experiencing a mild head injury. He further opined that individuals who experience mild head injuries are expected to fully recover within months of the incident. Thus, the bicycle accident, in our opinion, cannot be shown to cause a decrease injunction necessitating leaving work. . . . Therefore, we cannot establish that a decrease in cognitive functioning caused your inability to work. . . . [W]e feel that you are capable of peforming your former occupational duties as a significant change in your cognition as a result of the bicycle accident, or a change in condition that occurred prior to your cessation of work in 2000 that would cause an inability to work.
(emphasis added). Unum’s position was that Edwards’s cognitive injuries were not caused by the 1994 accident. However, when Edwards’s medical records were reviewed by medical experts, including Unum’s own experts, they concluded that more information would be needed in order to make a diagnosis regarding whether her cognitive injuries were caused by the 1994 accident. In fact, the only consistent opinion expressed by Unum’s experts was that the medical records were insufficient to make a conclusion. Specifically, Drs. Milton Jay and Alan Cusher recognized that Edwards had cognitive complaints prior to the accident. Yet, because they were unsatisfied with the amount of testing, they were unable to decide whether her prior cognitive condition was aggravated by the 1994 accident.
The majority mistakenly concludes that the essence of Edwards’s bad faith claim is that the denial itself is wrongful. Yet, it is in the insurance company’s denial letter that there are affirmative acts of misconduct. The denial letter states affirmatively that Edwards’s cognitive impairments cannot be related to her bike accident. In contrast, the insurance company’s own medical experts declined to make such a conclusive diagnosis. Instead, they concluded that more information would be needed to determine whether Edwards’s cognitive impairments were related to the bike accident. Thus, evidence that Unum altered the medical opinions of its experts in the denial letter is substantial evidence that clearly supports the jury’s verdict of bad faith.
On appellate review we consider only the evidence favorable to the successful party below and we defer to the jury’s resolution of the issues unless we can say that there is no reasonable probability to support the version of the successful party below. Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). Under this standard of review, there is substantial evidence to support the jury’s verdict. Thus, the jury’s award of damages on bad faith should be affirmed.