explaining “[t]he insurer’s duty of good faith and fair dealing arises from the insurance contract and runs to the insured” and holding that “[n]o such duty can be implied in favor of the claimant from the contract since the claimant is a stranger to the contract and to the fiduciary relationship it signifies”
How later courts described this case
- explaining “[t]he insurer’s duty of good faith and fair dealing arises from the insurance contract and runs to the insured” and holding that “[n]o such duty can be implied in favor of the claimant from the contract since the claimant is a stranger to the contract and to the fiduciary relationship it signifies”
- noting that automobile accident victim “is not the object of a sweeping statutory scheme designed to promote the compensation of injuries in a routine, largely nonadversarial manner”
- observing that “as the tort claimant has no legal right to require the tortfeasor to negotiate or settle, it likewise lacks [the] right to require such action by his representative”
- emphasizing “the need for a clear expression of intent to create a private right of action, expecially where that right would be in clear derogation of the common law * * * "
Written by the judges who cited it.
The opinion
HEFFERNAN, J.
(concurring). The majority opinion performs a service to the legal profession in its clear explanation of the basis for recognizing the causes of action sanctioned in Hilker v. Western Automobile Ins. Co., 204 Wis. 1 , 231 N.W. 257 , 235 N.W. 413 (1931); *84 Alt v. American Family Mut. Ins. Co., 71 Wis.2d 340, 237 N.W.2d 706 (1976); Anderson v. Continental Ins. Co., 85 Wis.2d 675 , 271 N.W.2d 368 (1978); and Coleman v. American Universal Ins. Co., 86 Wis.2d 615 , 273 N.W. 2d 220 (1979). The majority ably points out that liability in each of these cases results from the breach of a quasi-fiduciary duty, which has its origin in an insurance contract. It is clear, therefore, as the majority points out, that whatever recourse a third-party claimant may have arises from a concept that is substantially foreign to that utilized in the cases cited above. That conclusion, which I deem to be correct, does not necessarily mandate the legal conclusion that a third-party claimant may not have a cause of action against an insurance company which has indulged in “tactics of harassment and delay . . . meant to cause [a plaintiff] to give up her claim and to minimize the amount of the defendant’s liability.”
The basic question is not whether the conduct fits a pattern established by prior cases, but whether the actions of the defendant alleged here, assuming proper pleadings and proof, constitutes any tort for which damages- may be awarded.
The majority opinion, following the argument of the insurance company defendant, takes the position, that the possibility of a commission of a tort is dependent on the prior relationship of the parties. This, I conclude, is contrary to basic tort law. What is alleged here is an intentional tort, whose purpose is to unfairly economically advantage the defendant and to disadvantage the plaintiff in a claim against an insurance company whose liability for the purpose of this review is considered to be substantially unquestioned. But intentional torts are dependent not upon prior relations, but rather arise out of the relationship created by the conduct of the tortfeasor. It needs no citation to demonstrate that a civil action for damages for assault and battery may lie whether the *85 aggrieved person had ever previously had any relationship or contact with the tortfeasor.
It would be the height of temerity in this concurrence to attempt to definitively address the full scope of the meaning of “tort.” Prosser in his introduction to his hornbook, Law of Torts (1971), attempts to do so and acknowledges that the field is so broad that it is impossible to encapsulate in a brief definition the entire common law philosophy under which individuals are entitled to recompense in a civil action as a result of the wrongdoing of others. One thing, however, that Prosser makes eminently clear is that a tort is a civil wrong “other than breach of contract.” (sec. 1, p. 2) Thus a contractual relationship as a general proposition is totally alien to the tort concept.
It is true, of course, as our previously decided cases on the general subject of the duties of insurers demonstrate, that parties may be thrust into a relationship as the result of contract which makes possible tortious conduct, but it is obvious that such a relationship is not always a necessary prerequisite.
While I am not inclined at this time to disagree with the separate concurring opinion of Justice Abrahamson that third-party claimants, as a matter of public policy, derive certain rights under an insurance contract, some breaches of which may be a tort, I think it unnecessary in this case to follow that rationale, although it may well be correct. Rather, the philosophical and jurisprudential basis of tort law is, as stated by Prosser, sec. 1, p. 3, that “[the] injuries are to be compensated, and anti-social behavior is to be discouraged.”
It is my understanding, therefore, that, when there is conduct which causes injury to a person and when future conduct of that nature may be deterred by the civil remedy of damages, a cause of action for tort may well exist. Prosser further points out:
*86 “When it becomes clear that the plaintiff’s interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not of itself operate as a bar to the remedy.” (sec. 1, pp. 3-4)
It is true, of course, that the righting of all wrongs, irrespective of the nature of the wrong , or the nature of the injury, is a project that courts should not undertake. There are many moral wrongs which the courts consider themselves powerless to rectify. But what we have alleged in the instant case is an alleged wrong which purports to defeat the purpose of our system of justice, as well as to defeat the wronged person’s right of recovery. Hence, there is a societal injury which is of general concern to the legal system. The societal wrong is not only the subversion of the courts as an instrument of justice, but is also the subversion of society’s interest in seeing to it that persons injured by negligent conduct are promptly compensated for their injuries, lest they become a burden upon the community.
I share the reasoning of the concurrence of Justice Abrahamson to the extent that the facts alleged in this case do not clearly spell out the elements of a possible tort to the third-party claimant. But more importantly, I am satisfied that the existence of an intentional tort of this nature depends not at all upon the prior contractual relationship of the parties. Rather, it depends upon the relationship between the parties whatever the origin of the relationship may be. That relationship, giving rise to a cause of action, may be found in the conduct of the parties themselves. In this instance, the possible tort arises from the alleged conduct of the insurance company toward the claimant after a claim had been made.
■To distinguish the fact situation here from those in which we found the existence of a tort cause of action *87 because of a breach of a fiduciary duty arising out of contract is not at all determinative of whether an insurance company may be a tortfeasor in relation to a third-party claimant. All that the insurance company’s argument proves is that the particular tort alleged here cannot be justified on the same concepts we have utilized in our prior cases.
I concur in the result but would withhold any attempt to definitively say that a cause of action of the type sought to be alleged here has no existence, or should not, under proper pleading, be recognized by the common law of this state.