Paul A. Ryker
Huntington, West Virginia
Attorney for the Appellant
Stephen B. Farmer
J. Rudy Martin
Jackson & Kelly
Charleston, West Virginia
Attorney for the Appellee
CHIEF JUSTICE MILLER delivered the Opinion of the Court.
1. "The furnishing of a preliminary proof of loss as
required by the conditions of a fire insurance policy is a
condition precedent to any right of action by the insured thereon
and, unless proof of loss is waived, an action on the policy does
not accrue to the insured until after such proof of loss has been
furnished." Syllabus Point 1, Maynard v. National Fire Insurance
Co., 147 W. Va. 539, 129 S.E.2d 443 (1963).
2. Once proof of loss has been filed and the insurer
has either denied coverage or failed to affirm or deny coverage
within a reasonable time after the proof of loss has been filed, an
insured may bring an action to recover on the fire insurance
3. A provision in an insurance policy requiring the
insured to submit to an examination under oath is not a condition
precedent to filing a suit for the policy proceeds. However, an
insured's refusal to comply with such a request may affect the
insured's right to recover under the policy.
4. Where the insured has filed suit for the proceeds
under an insurance policy shortly after the insurer has demanded
his oral examination under oath, the insurer's ability to secure
information through discovery should be considered in determining
whether the insurer has suffered any substantial prejudice by the
5. "An implied private cause of action may exist for a violation by an insurance company of the unfair settlement practice provisions of W. Va. Code, 33-11-4(9); but such implied private cause of action cannot be maintained until the underlying suit is resolved." Syllabus Point 2, Jenkins v. J.C. Penney Casualty Insurance Co., 167 W. Va. 597, 280 S.E.2d 252 (1981).
Miller, Chief Justice:
Edward Thompson appeals a final order of the Circuit
Court of Cabell County, dated December 13, 1990, dismissing his
suit against his casualty insurer, the West Virginia Essential
Property Insurance Association (Association).See footnote 1 We must decide
whether the provision in a fire insurance policy requiring the
insured to submit to an oral examination under oath is a condition
precedent to filing suit for the insurance proceeds. In answering
this question, we also consider the effect of the Unfair Trade
Practices Act, W. Va. Code, 33-11-1, et seq.
The facts are substantially undisputed. The insured, Edward Thompson, owned a home on Adams Avenue in Huntington, West Virginia. He had the home insured with the Association for $50,000. The insurance contract contained a provision that required the insured to submit to an oral examination under oath at the request of the insurer.See footnote 2
On October 3, 1989, a fire destroyed the dwelling. When
the insured met with an adjuster for the Association a few days
later, he was advised by the adjuster that he was a "prime suspect"
in the fire loss. He also claims that the adjuster asked him to
sign an authorization form giving the insurer access to his
financial records. When the insured stated that he was reluctant
to sign the form before consulting with a lawyer, the adjuster
allegedly replied: "You might as well sign it. If you don't, we
will drag this thing out for two years." Mr. Thompson states he
then signed the form.See footnote 3
By October 15, 1989, the insured completed the proof of loss form supplied by the Association and mailed it to his agent. On November 8, 1989, the Association wrote the insured to advise that it had received his proof of loss form, but was reserving its
rights and defenses under the policy pending a further
investigation. By this time, the insured had retained an attorney,
who wrote the insurer several letters regarding the fire loss.
On November 3, 1989, the insured's attorney wrote the
Association to advise that the insured would file suit if no
further action was taken to pay his claim by November 14, 1989. In
a letter dated November 20, 1989, the Association's attorney
advised the insured's attorney that the Association wanted to
exercise its right under the policy to examine the insured under
oath at the earliest convenient date. When he did not hear from
the insured, the Association's attorney sent a formal demand letter
scheduling the sworn examination under oath for 10:00 a.m. on
December 14, 1989, at the courthouse in Cabell County. The date of
the examination was then postponed by agreement of the attorneys.
Finally, in a letter dated January 3, 1990, the Association's
attorney asked the insured's attorney to confirm a telephone
message that the insured was refusing to be examined under oath.
On January 12, 1990, the insured filed suit against the Association. The complaint stated that the insured had given proper notice and proof of loss and was, therefore, entitled to the insurance proceeds. Moreover, the complaint asserted that the Association had violated the Unfair Trade Practices Act (the Act) by failing to timely acknowledge the insured's proof of loss, and that it had acted in bad faith by denying payment under the policy.
The Association responded by filing a motion to dismiss or, in the
alternative, for summary judgment, which asserted that because the
insured had refused to appear for an examination under oath as
required by the policy, the contract was void. The trial court
agreed and granted the Association's motion for summary judgment in
a final order dated December 13, 1990.
Several preliminary observations are in order. First, the Association did not deny coverage before the insured filed suit. Second, where an insurance policy requires the filing of a proof of loss, suit may not be brought for the policy proceeds until the proof of loss has been submitted. This principle is stated in Syllabus Point 1 of Maynard v. National Fire Insurance Co., 147 W. Va. 539, 129 S.E.2d 443 (1963):
"The furnishing of a preliminary proof of loss as required by the conditions of a fire insurance policy is a condition precedent to any right of action by the insured thereon and, unless proof of loss is waived, an action on the policy does not accrue to the insured until after such proof of loss has been furnished."
Maynard does make it clear that once the proof of loss has been
filed by the insured and the insurer has denied coverage, the
insured may file suit to recover under the fire insurance policy.
Third, "[u]nder the provisions of the standard fire policy adopted under W. Va. Code, 33-17-2 (1957), the twelve-month
time period for bringing suit commences to run when the insurance
company notifies the insured in writing that it declines to pay the
loss." Syllabus, Meadows v. Employers' Fire Ins. Co., 171 W. Va.
337, 298 S.E.2d 874 (1982). This twelve-month time frame is
provided for in the present policy.
Fourth, under the authority of W. Va. Code, 33-2-10,See footnote 4 the insurance commissioner has adopted regulations that outline procedures for the processing, denial, or acceptance of first party claims.See footnote 5 Under W. Va. Code, 33-11-4(9)(e) (1985), an insurer violates the Act by "[f]ailing to affirm or deny coverage of claims within a reasonable time after proof of loss statements have been completed[.]" Thus, once proof of loss has been filed and the insurer has either denied coverage or failed to affirm or deny coverage within a reasonable time after the proof of loss has been
filed, an insured may bring an action to recover on the fire
Finally, the provision permitting the insurer to obtain
an oral examination of the insured under oath is found in the
standard fire policy, which is authorized in W. Va. Code, 33-17-2.See footnote 6
Prior to the enactment of the present fire and marine insurance
statute, the standard fire policy language was recited verbatim in
W. Va. Code, 33-4-7 (1931). The language permitting an oral
examination of the insured is identical to the policy language in
this case:See footnote 7
"The insured, as often as may be reasonably required, shall exhibit to any person designated by this Company all that remains of any property herein described, and submit to examinations under oath by any person named by this Company, and subscribe the same; and, as often as may be reasonably required, shall produce for examination all books of account, bills, invoices, and other vouchers, or certified copies thereof, if originals be lost, at such reasonable time and place as may be designated by this Company or its representative, and shall permit extracts and copies thereof to be made."
The purpose of an oral examination under oath is to
enable the insurer to obtain necessary and relevant information
from the insured about the circumstances surrounding the fire loss
and the value of the property destroyed. It also enables the
insurer to determine rationally whether the insured is submitting
a false or fraudulent claim.
When this language was placed in the standard fire
policy, the insurer was unable to obtain any discovery before or
after a lawsuit was filed.See footnote 8 This limitation substantially
handicapped the insurer's defense against false or fraudulent fire
loss suits. Today, much of this handicap has been removed because
after suit is filed the insured's deposition can be taken, and he
can be required to furnish relevant documents at that time. See
With these considerations in mind, we address the contentions of the parties. The insured contends that the
Association violated the Act by "[f]ailing to affirm or deny coverage of [his claim] within a reasonable time after proof of loss statements have been completed[.]" W. Va. Code, 33-11-4(9)(e) (1985).See footnote 9 As soon as the Association engaged in an unfair claims practice, the insured contends that he was then relieved of all contractual obligations under the policy.See footnote 10 The Association
counters that the insured's refusal to submit to the requested
examination under oath is dispositive of the entire case. This
latter argument was adopted by the trial court, so we address it
The Association argues that the right to require an examination under oath is a legitimate, material provision of the contract and refusal to comply before filing suit invalidates the policy.See footnote 11 It relies heavily on Stover v. Aetna Casualty & Surety Co., 658 F. Supp. 156 (S.D. W.Va. 1987). Stover appears to misconstrue when an insured has a right to bring an action on a
fire policy. There, the insured's truck and a number of his tools
were destroyed by fire. After the insured submitted his proof of
loss, the insurance company requested his examination under oath,
as provided for in the policy. During the deposition, the insured
gave vague answers about prior insurance, the name of his insurance
agent, and his self-employment income. Following the examination,
he refused to furnish certain documents requested by the insurer.
Shortly thereafter, the insured filed suit. The district court
granted summary judgment for the insurance company. It concluded
that when the insured failed to answer material questions during
the examination under oath, he breached the insurance contract and
was, therefore, precluded from filing suit.
Stover suggests that so long as the insurer is
investigating the loss or has not repudiated the policy, a suit
cannot be brought:
"It must be kept in mind that the Defendant had not repudiated the policies at the time this action was initiated. At no time did the Defendant refuse or deny coverage. Its investigation was continuing. . . . In this vein, it has been held that an insured cannot 'insulate itself against cooperation by commencing an action before there has in fact been repudiation of liability by the insurer. . . .'" 658 F. Supp. at 161. (Citation omitted).
Contrary to Stover and under Maynard, supra, our law does not
require a repudiation of coverage before a suit may be filed on a
fire policy.See footnote 12
Some jurisdictions hold that where the insured refuses to
comply with a demand for an examination under oath, he breaches the
policy and forecloses his right to recover under the policy.See footnote 13
See, e.g., Warrilow v. Superior Court, 142 Ariz. 250, 689 P.2d 193
(App. 1984); Robinson v. National Auto. & Casualty Ins. Co., 132
Cal. App. 2d 709, 282 P.2d 930 (1955); Halcome v. Cincinnati Ins.
Co., 254 Ga. 742, 334 S.E.2d 155 (1985); Standard Mut. Ins. Co. v.
Boyd, 452 N.E.2d 1074 (Ind. App. 1983); Watson v. National Sur.
Corp., 468 N.W.2d 448 (Iowa 1991); Allison v. State Farm Fire &
Casualty Co., 543 So. 2d 661 (Miss. 1989); Baker v. Independent
Fire Ins. Co., 103 N.C. App. 521, 405 S.E.2d 778 (1991).
Other courts have adopted a more flexible approach to
this question. For example, in C-Suzanne Beauty Salon, Ltd. v.
General Insurance Co., 574 F.2d 106, 111 (2d Cir. 1978), the
federal court of appeals refused to dismiss the insured's suit
because of his initial unwillingness to undergo an oral
examination: "By conditioning the renewal of the motion to dismiss
upon a showing of prejudice, the district judge was acting in
accordance with the principle that technical or unimportant defects
will not justify a forfeiture."
In a related vein, the Missouri Court of Appeals found in
Farm Bureau Town & Country Insurance Co. v. Crain, 731 S.W.2d 866
(Mo. App. 1987), that the insured's failure to answer material
questions at the examination under oath did not void the policy.
This was because after the suit was filed, the insured gave a
deposition where the same questions were asked and answered. The
court concluded that it was a factual question whether the
insured's initial refusal to answer questions during the
examination under oath was "repaired" by the subsequent deposition.
In Pogo Holding Corp. v. New York Property Insurance Underwriting Association, 73 A.D.2d 605, 422 N.Y.S.2d 123 (1979), the insurer asked the president of the insured company to submit to an oral examination. Before the president was examined, the insured sued the insurer for the amount of the fire loss. The
court held that the insurer was not entitled to summary judgment
because of the president's failure to submit to the examination.
However, the court required the president to submit to the
examination within thirty days from the date of the court's order.
In McCullough v. Travelers Companies, 424 N.W.2d 542
(Minn. 1988), the Minnesota Supreme Court was confronted with a
situation almost identical to the present one. In McCullough, as
here, the insurer requested the insured to submit to an oral
examination. The examination was later postponed by agreement of
counsel. The insured then filed suit.
The court began by noting that "there is nothing in the
policy provisions . . . that bars suit or requires an oral
examination prior to suit. The policy merely states that no suit
shall be 'sustainable' unless all the policy requirements have been
complied with."See footnote 14 424 N.W.2d at 544. (Citation omitted; footnote
omitted). Furthermore, the court refused to construe this policy
language to mean that an oral examination was a condition precedent
to the insured's right to bring the suit:
"Under this policy, an oral examination under
oath is not a condition precedent to suit.
Rather, we hold that the examination
requirement is a condition to recovery under
the policy. Thus, the fact that an insured
brings suit before submitting to an
examination by the insurer does not, in
itself, constitute a breach and work a
forfeiture of benefits under the policy." 424
N.W.2d at 544.
We agree with the Minnesota Supreme Court that the
provision in an insurance policy requiring the insured to submit to
an examination under oath is not a condition precedent to filing a
suit for the policy proceeds. However, an insured's refusal to
comply with such a request may affect his right to recover under
In determining whether an insured's refusal to submit to
an oral examination should result in denying the insured coverage,
some consideration must be given to whether the insurer has
violated the Act. Of particular importance is whether the insurer
has complied with W. Va. Code, 33-11-4(9)(e), and affirmed or
denied coverage within a reasonable time after the proof of loss
has been filed.See footnote 15
We do not agree with the insured's position that once a violation of the Act occurs, he is completely relieved of any contractual obligation under the policy. However, we believe that
cooperation is a two-way street. If the insurer has substantially
violated the Act or its regulations, the company's action will be
considered in assessing whether the insured's lack of cooperation
was justified. Moreover, where the insured has filed suit for the
proceeds under an insurance policy shortly after the insurer has
demanded his oral examination under oath, the insurer's ability to
secure information through discovery should be considered in
determining whether the insurer has suffered any substantial
prejudice by the delay.
Here, the proof of loss form was filed promptly after the
fire loss. Moreover, the insurer's adjuster met with the insured
within days of the fire loss. At this meeting, the insured signed
a release giving the insurer authority to obtain copies of his
financial records. By a letter dated November 20, 1989, the
insured's attorney was informed of the insurer's desire to examine
his client. The date for the examination was subsequently
continued by agreement of counsel. The suit was filed on January
12, 1990. The insurer had the right to take the insured's
deposition any time after this date.
The insurer has neither affirmed nor denied coverage or complied with the notification procedure contained in W. Va. C.S.R. § 114-14-6.5. See note 9, supra. Of significant importance are affidavits the insured filed with his motion in opposition to summary judgment. One of the affidavits was from a police officer
who had investigated the fire loss on behalf of the Huntington
police department, and another was from the city's fire chief.
Both affiants stated that their investigations of the fire loss had
not revealed any facts that would indicate that the insured
intentionally set or caused the fire to be set. There were no
countervailing affidavits offered by the insurer. We fail to see
how the insurer has suffered any substantial prejudice. We,
therefore, conclude that the trial court erred in granting the
insurer's motion for summary judgment.
We spoke to an insured's cause of action based on the violation of the Act in Jenkins v. J.C. Penney Casualty Insurance Co., 167 W. Va. 597, 280 S.E.2d 252 (1981). In Jenkins, we held that a private cause of action could arise from violations of the Act. However, in Syllabus Point 2 of Jenkins, we also recognized that such a suit could not be brought until the underlying suit was resolved:
"An implied private cause of action may exist for a violation by an insurance company of the unfair settlement practice provisions of W. Va. Code, 33-11-4(9); but such implied private cause of action cannot be maintained until the underlying suit is resolved."
Jenkins involved a claim by a third party against the carrier. The plaintiff was injured when the insured struck her vehicle. She claimed that the insured's carrier breached W. Va.
Code, 33-11-4(9)(f), by not attempting a prompt and equitable
settlement where liability had become reasonably clear. We held
that until the underlying negligence of the carrier's insured was
established, it would be premature for the third party to bring the
unfair trade practice claim:See footnote 16
"To permit a direct action against the insurance company before the underlying claim is ultimately resolved may result in duplicitous litigation since the issue [sic] of liability and damages as they relate to the statutory settlement duty are still unresolved in the underlying claim. Once the underlying claim has been resolved, the issues of liability and damages have become settled and it is possible to view the statutory claim in light of the final result of the underlying action. A further policy reason to delay the bringing of the statutory claim is that once the underlying claim is resolved, the claimant may be sufficiently satisfied with the result so that there will be no desire to pursue the statutory claim." 167 W. Va. at 608, 280 S.E.2d at 259. (Footnote omitted).
In the present case if the insured successfully recovers
on the policy, his damages will follow those prescribed in Syllabus
Point 1 of Hayseeds, Inc. v. State Farm Fire & Casualty Co., ___ W.
Va. ___, 352 S.E.2d 73 (1986):
"Whenever a policyholder substantially prevails in a property damage suit against its insurer, the insurer is liable for: (1) the insured's reasonable attorneys' fees in
vindicating its claim; (2) the insured's
damages for net economic loss caused by the
delay in settlement, and damages for
aggravation and inconvenience."See footnote 17
These damages may mirror the damages that could be
obtained under the Act, and a second suit would be unnecessary. As
stated in note 12 of Jenkins:
"We do not attempt to delineate the entire damage issue on a statutory claim but it obviously does not serve to replicate the damages obtained in the underlying claim. Certainly, increased costs and expenses including the increase in attorney's fees resulting from the failure to offer a prompt fair settlement could be recovered. In an appropriate case, punitive damages may be recovered." 167 W. Va. at 609, 280 S.E.2d at 259.
In this case, we deal with a first party claim where the insured is proceeding against his own insurance carrier; however, the same logic applies. The underlying claim involves the payment of the fire loss. The insurer initially delayed determining whether to pay the loss, intimating that the fire may not have been of an accidental origin. Later the Association invoked the policy provision regarding an oral examination under oath. Shortly before filing the suit, the insured's attorney informed the insurer's counsel that he would not permit the insured to be examined under
oath. After the suit was filed, it appears that there was neither
further dialogue on this subject nor any attempt on the part of the
insurer to take the insured's deposition. Although the insured has
filed suit, we do not yet know whether he is entitled to the
insurance proceeds. For these reasons, we find the claim based on
the Act premature.
Accordingly, the judgment of the Circuit Court of Cabell
County is reversed, in part, and affirmed, in part, and the case is
remanded for further proceedings consistent with this opinion.
Reversed in part,
Affirmed in part,
Footnote: 1The Association was created pursuant to W. Va. Code, 33-20A-1, et seq. This statute is designed "[t]o provide for a mechanism whereby the [insurance] commissioner may establish insurance plans to make available insurance coverage to persons who do not have coverages available to them in the voluntary insurance market." W. Va. Code, 33-20A-2.
Footnote: 2The policy provision stated:
"The insured, as often as may be reasonably required, shall exhibit to any person designated by the Company, all that remains
of any property herein described, and submit
to examinations under oath by any person
named by this Company, and subscribe the
same; and, as often as may be reasonably
required, shall produce for examination all
books of accounts, bills, invoices and other
vouchers, or certified copies thereof if
originals be lost, at such reasonable time
and place as may be designated by this
Company or its representative, and shall
permit extracts and copies thereof to be
Footnote: 3These allegations are found in Mr. Thompson's affidavit filed in opposition to the Association's motion for summary judgment. Because there was no affidavit filed by the insurance adjuster, we assume the allegations are true for purposes of the motion for summary judgment.
Footnote: 4W. Va. Code, 33-2-10, is the provision in the Act which authorizes the insurance commissioner to promulgate rules and regulations governing insurance companies:
"The commissioner is authorized to
promulgate and adopt such rules and
regulations relating to insurance as are
necessary to discharge his duties and
exercise his powers and to effectuate the
provisions of this chapter and to protect and
safeguard the interests of policyholders and
the public of this State."
Footnote: 5Section 114-14-2.3 of the West Virginia Code of State Regulations (W. Va. C.S.R.) defines a "First Party Claimant or Insured" as "an individual, corporation, association, partnership or other legal entity asserting a right to payment under an insurance policy or insurance contract arising out of the occurrence of the contingency or loss covered by such policy or contract."
Footnote: 6W. Va. Code, 33-17-2, provides, in relevant part:
"No policy of fire insurance
covering property located in West Virginia
shall be made, issued or delivered unless it
conforms as to all provisions and the
sequence thereof with the basic policy
commonly known as the New York standard fire
policy, edition of one thousand nine hundred
forty-three, which is designated as the West
Virginia standard fire policy[.]"
Footnote: 7For the policy language, see note 2, supra.
Footnote: 8This information is outlined in some detail in M. Lugar & L. Silverstein, West Virginia Rules of Civil Procedure 214 (1960): "Except for the provisions of Rule 27, which pertains to depositions taken before the commencement of the action or pending an appeal, the procedure permitted under Rules 26 through 37 is almost entirely new in West Virginia." The West Virginia Rules of Civil Procedure were adopted effective July 1, 1960. They were modeled after the Federal Rules of Civil Procedure, which were adopted in 1937. The discovery and deposition rights provided for in the federal rules gave states the impetus to adopt similar rules.
Footnote: 9W. Va. C.S.R. § 114-14-6.5, provides:
"Notice of necessary delay in
investigating claims. -- If the insurer needs
more time to determine whether a first party
claim should be accepted or denied, it shall
so notify the first party claimant in writing
within fifteen (15) working days after
receipt of the proofs of loss. If the
investigation remains incomplete, the insurer
shall send to such claimant within thirty
(30) calendar days from the date of the
initial notification and every thirty (30)
calendar days thereafter, a letter setting
forth the reason additional time is needed
for investigation. Where there is a
reasonable basis supported by specific
information available for review by the
Commissioner that such claimant has
fraudulently caused or contributed to the
loss by arson, the insurer is relieved from
the requirements of this subsection:
Provided, however, That the claimant shall be
notified of the acceptance or denial of the
claim within a reasonable time for full
investigation after receipt by the insurer of
a properly executed proof of loss."
(Emphasis in original).
Footnote: 10On appeal, the insured also argues that the Association violated other provisions of W. Va. Code, 33-11-4(9):
"(b) Failing to acknowledge and act
reasonably promptly upon communications with
respect to claims arising under insurance
* * *
"(d) Refusing to pay claims without
conducting a reasonable investigation based
upon all available information;
* * *
"(f) Not attempting in good faith
to effectuate prompt, fair and equitable
settlements of claims in which liability has
become reasonably clear[.]"
Footnote: 11The Association argues that the following provision in Mr. Thompson's policy precluded him from filing suit:
"No suit or action on this policy
for the recovery of any claim shall be
sustainable in any court of law or equity
unless all the requirements of this policy
shall have been complied with, and unless
commenced within twelve months next after
inception of the loss."
Footnote: 12Accord Lawton v. Great Southwest Fire Ins. Co., 118 N.H. 607, 392 A.2d 576 (1978); Anderson v. Continental Ins. Co., 85 Wis. 2d 675, 271 N.W.2d 368 (1978).
Footnote: 13Courts have held that the insured does have the right to have an attorney present at the sworn examination. Gordon v. St. Paul Fire & Marine Ins. Co., 197 Mich. 226, 163 N.W. 956 (1917); Gross v. United States Fire Ins. Co., 71 Misc. 2d 815, 337 N.Y.S.2d 221 (1972); Shelter Ins. Cos. v. Spence, 656 S.W.2d 36 (Tenn. 1983). Cf. Hart v. Mechanics & Traders Ins. Co., 46 F. Supp. 166 (W.D. La. 1982) (Insured is entitled to have stenographer of his own choosing at oral examination). Moreover, some courts have found that the failure to answer immaterial questions will not void the policy. George v. Connecticut Fire Ins. Co., 84 Okla. 172, 201 P. 510 (1921); Mulkey v. United States Fidelity & Guar. Co., 243 S.C. 121, 132 S.E.2d 278 (1968), overruled on other grounds, Johnson v. South State Ins. Co., 288 S.C. 239, 341 S.E.2d 793 (1986).
Footnote: 14The wording of the policy in McCullough is exactly the same as in the policy provision in this case, except that the statute of limitations in Mr. Thompson's policy was twelve months rather than two years. See note 11, supra. The policy in McCullough provided: "'No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity unless all the requirements of this policy have been complied with, and unless commenced within two years after inception of the loss.'" 424 N.W.2d at 544.
Footnote: 15For the text of the pertinent regulation, see note 9, supra.
Footnote: 16Moreover, in Syllabus Point 3 of Jenkins, we held that a single violation of the Act was not sufficient to maintain the cause of action: "More than a single isolated violation of W. Va. Code, 33-11-4(9), must be shown in order to meet the statutory requirement of an indication of 'a general business practice,' which requirement must be shown in order to maintain the statutory implied cause of action."
Footnote: 17In Syllabus Point 2 of Hayseeds, we outlined when punitive damages may be allowed: "An insurer cannot be held liable for punitive damages by its refusal to pay on an insured's property damage claim unless such refusal is accompanied by a malicious intention to injure or defraud."