specially concurring.
While I concur in the majority’s opinion, I think it appropriate to expand somewhat on the last paragraph of Part II pertaining to Lloyds’ “premature” action. Wolleson notified Lloyds of Smith’s potential claim in June of 2001. Smith was claiming damages for crop loss in the sum of $6,000 plus interest. Lloyds’ claim adjuster contacted Smith to get information about the potential claim but Smith failed to provide any. Even though Smith had failed to follow up with the rather modest damage claim, Lloyds instituted this declaratory judgment action on January 31, 2002. The parties filed cross-motions for summary judgment and the district court granted judgment in favor of Wolleson, holding the insurance contract to be illusory. At oral argument, Lloyds’ counsel indicated his client instituted the declaratory judgment action because an important principle was involved. However, following the adverse judgment, Lloyds apparently did not deem enough principle was involved to assert a cross-appeal. Lloyds incurred attorney fees in the amount of $11,600 in the proceedings in district court. It isn’t clear from the record how much Wolleson laid out for costs and attorney fees but it likely exceeded Smith’s $6,000 damage estimate. Considering all of these factors, it appears that Lloyds not only jumped the gun by prematurely filing its suit, but it sought to exclude coverage under an illusory policy for a modest claim that was lesser in amount than each party expended in litigation in the district court. The issue was not raised in district court or on appeal, since both parties focused their attention solely on subsection (1) of I.C. § 41-1839, but it appears that Lloyds’ actions implicated subsection (4) of section 41-1839, which provides for the award of attorney fees when the court finds that a case “was brought, pursued or defended frivolously, unreasonably or without foundation.” Had it been sought, a fee award against Lloyds under subsection (4) may well have been appropriate.