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BLUE CROSS & BLUE SHIELD OF MISSISSIPPI, INC. v. WILLIAM T. CAMPBELL

APRIL 10, 1985

BLUE CROSS & BLUE SHIELD OF MISSISSIPPI, INC.
v.
WILLIAM T. CAMPBELL



ON PETITION FOR REHEARING

EN BANC.

HAWKINS, JUSTICE, FOR THE COURT:

The petition for rehearing is denied.

 The following observations are to clarify what we stated in our majority holding in Reserve Life Insurance Co. v. McGee, 444 So.2d 803 (Miss. 1983).

 Campbell argues that under the majority opinion in Reserve Life, whether an insurance carrier has been guilty of "bad faith" conduct is always a jury question under the familiar guideline of Paymaster Oil Co. v. Mitchell, 319 So.2d 652, 657 (Miss. 1975), that and nothing more. Therefore, he argues, we have deprived him of having a jury pass upon a disputed factual issue.

 This argument ignores an additional requirement in all punitive damages cases, or any other case in which a plaintiff asks a court to impose special damages beyond conventional damages generally allowed a successful plaintiff in a tort or breach of contract case. In a punitive damages case, it is the responsibility and

 function of the trial judge, after reviewing all the evidence, to first determine whether the facts of that particular case justify submitting to the jury the issue of such punitive or special damages. In such a case the trial court is not guided by the simple rules of Paymaster, considering only one side's evidence, but rather must consider all the evidence and determine if the defendant's conduct was such that the jury should be called upon in turn to decide the justification and amount of punitive damages, or some extraordinary damages. Upon appeal, it is also the function of this Court to determine from all the evidence whether punitive damages was a proper jury issue. And, in determining the propriety of the trial judge's submission of such issue to the jury, we are not confined to the parameters of Paymaster.

 As to punitive damages, we have evolved in this state general guidelines for courts and juries. They are set forth in Standard Life Insurance Co. of Indiana v. Veal, 354 So.2d 239 at 247 (Miss. 1977).

 In that case we added an additional and more specific guideline for a trial court to consider in determining whether the issue of punitive damages under an insurance contract should be submitted to a jury. We stated:

 . . . If an insurance company could not be subjected to punitive damages it could intentionally and unreasonably refuse payment of a legitimate claim with veritable impunity. . . . We are of the opinion that the refusal to pay the legitimate claim in this case was an intentional wrong and constituted an independent tort as contemplated in Progressive Casualty Insurance Co. v. Keys, supra. *fn1

 We then concluded:

 Of course, if an insurance company has a legitimate reason or an arguable reason for failing to pay a claim, punitive damages will not lie. . . . [Emphasis added]

 354 So.2d 248.

 Implicit in this concluding statement is the requirement that the trial judge has the responsibility of making the determination of whether there was an arguably reasonable basis, either legal or factual, for denying the claim. Indeed, only a trial judge could determine ...


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