dissenting.
I respectfully dissent from the majority opinion. This case represents what, in my opinion, is an excellent example of the difference between judicial activism and judicial conservatism.
The majority, relying heavily on Viles v. Security National Insurance Co., 788 S.W.2d 566 (Tex.1990), are today holding that an insured who has no cause of action against her own insurance company for breach of contract because the loss is not and was never covered by the uninsured/underinsured provisions of the policy, has nevertheless a cause of action for breach of the duty of good faith and fair dealing simply because the claims representative and a company employee gave the wrong reasons in denying the claim and/or did not conduct a “thorough” investigation. In other words, even though the insurance company has no liability for its insured’s loss under the policy provisions, it better be right and polite when it denies a claim or it could and probably will become liable for damages on the theory that it did not deal with its insured in good faith. It used to be that when your insurance company, its agents and representatives did not treat you with courtesy and intelligence when you suffered a noncovered loss, you merely got yourself a new company. But now under Viles and the majority reasoning herein, you will hope that when suffering a noncovered loss, the company claims representative, when denying your claim, is rude and gives you some cockamamie 1 or wrong reason for not honoring your claim.
It is important to keep in mind that there is absolutely no evidence that Mrs. Stoker’s2 vehicle came into physical contact with either the uninsured (unknown) pickup truck or the furniture that fell off the pickup and onto the highway and in the absence of such contact, the insurer has no liability under the uninsured/underinsured coverage.
In Viles, the insurance company improperly denied a claim valid at the time it was made and later after continuing to negotiate with its insureds, denied the claim on the technical ground that the insureds had failed to submit a sworn proof of loss within the policy required 91 day period. Justice Dog-*81gett -writing for a simple majority,3 held expansively that because of the “special relationship” between insurer and insured, there is imposed “on the insurer a duty to investigate claims thoroughly and in good faith, and to deny those claims only after an investigation reveals there is a reasonable basis to do so.” Viles, 788 S.W.2d at 568. Under that broad pronouncement and reasoning, an insurer would become liable to its insured for bad faith damages even though it made a prompt denial of a noncovered claim unless it had previous to the denial conducted “a thorough investigation.”
Interestingly, both the majority and the concurrence in Viles cite Arnold, v. National County Mut. Fire Ins. Co., 725 S.W.2d 165 (Tex.1987) and Chitsey v. National Lloyds Ins. Co., 738 S.W.2d 641 (Tex.1987) in support of their positions. While those cases support the end disposition in Viles, they do not support the sweeping Doggett dogma as applied to this case because in both of those cases the insured had valid claims whereas in this ease, Mrs. Stoker did not have a valid claim under the terms of the uninsured/un-derinsured coverage. Moreover, the majority opinion and disposition herein and the pronouncement in Viles (as pointed out in the Viles concurrence) conflict with the holding in Aranda v. Insurance Co. of North America, 748 S.W.2d 210, 213 (Tex.1988), which required that the insured asserting a breach of the good faith duty claim, must first establish “the absence of a reasonable basis for denying or delaying payment of the [policy] benefits.” Aranda went on to say that this test requires “an objective determination of whether a reasonable insurer under similar circumstances would have delayed or denied the claimant’s benefits.” 748 S.W.2d at 213. Under Aranda, if the insurer had a reasonable basis for denying the claim, it did not matter whether it had conducted “a thorough investigation” or whether its claims representatives had given a valid reason. The same was true under Arnold where the insurer should have paid and ultimately did pay its insured under the uninsured motorist coverage following suit and judgment on the policy and the question in the subsequently filed breach of the good faith duty ease was whether the insurer had a reasonable basis for denying the uninsured motorist claim. Arnold, 725 S.W.2d at 167; State Farm Lloyds, Inc. v. Polasek, 847 S.W.2d 279, 283 (Tex.App.—San Antonio 1992, no writ). Put in another way, the “reasonable basis for denying the claim or delaying payment of the claim,” Aranda, 748 S.W.2d at 213, only comes into play when the claim is valid. Where, as in the case under consideration, the claim is not covered under the policy, the insurance company has by definition a reasonable basis for denying the claim. Moreover, there is a duty on the part of the insured and his/her attorney to read the policy to determine whether the insured has a possible claim under the terms of the policy before filing a lawsuit.
Under the facts of this case and the law relating to the duty of good faith and fair dealing as it was before Viles, in Arnold, Aranda and this case and still should be based on the facts in all of these eases, I would reverse the judgment of the trial court and render for Appellants.
. Cockamamie also cockamamy adj. Slang_
2. Ludicrous; nonsensical. The American Heritage Dictionary 286 (2nd ed. 1985).
. Referred to as "Mrs. Stoker” in Appellees' Brief.
. Defined herein as a 5-4 majority.