The opinion
Seinfeld, J.
(concurring) — I agree with the majority’s holding that state law controls this dispute and that the trial court erred in denying summary judgment dismissing Ellis’s bad faith claim against American States. I write separately to clarify my understanding of the holding in Ellwein v. Hartford Accident & Indemnity Co., 142 Wn.2d 766 , 15 P.3d 640 (2001).
The majority states that Ellwein “imposes a different summary judgment standard on a plaintiff bringing a bad faith cause of action.” Majority opinion at 489. I do not agree that the Ellwein court is creating a new standard. Rather, it merely is explaining that in a bad faith claim, the question is whether the insurer acted reasonably in denying the claim. See Kirk v. Mt. Airy Ins. Co., 134 Wn.2d 558, 560 , 951 P.2d 1124 (1998). The Ellwein court concludes as a matter of law that an insurer does act reasonably in denying a claim if there is a legitimate dispute as to coverage-determining facts.
In analyzing a bad faith cause of action, it is important to remember that the material issue is NOT whether the insured violated the policy. Thus, in this bad faith case, disputed evidence as to whether Lepre committed arson does not create an issue of material fact that prevents a *495 summary judgement. If American States had a reasonable basis to believe that Lepre committed the arson, the law allows it to withhold payments and bring a declaratory judgment action. The declaratory judgment action provides the forum for reviewing the insured’s conduct.
Because the focus is on the basis for the insurer’s conduct, evidence indicating that Lepre may have been responsible for the fire negates a finding of bad faith. But this does not mean, as the majority suggests, that the issue of bad faith can never be a jury question. Ellwein does not mandate summary judgment if there is a dispute as to the adequacy of the insurer’s investigation, which, in the context of a bad faith claim, is a material issue of fact.
Because Ellis has not presented evidence disputing the quality of American States’ investigation or provided other evidence that it acted in bad faith, there is no disputed issue of material fact. Thus, it was error to deny American State’s motion for summary judgment dismissal of the bad faith claim.