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Lovey v. Regence Blueshield of Idaho6/18/2003
and such a supplier's duties are controlled by common law tort principles of products liability. The Arizona Supreme Court has recognized that when an injured buyer maintains a tort action on a theory of strict liability,"the essential nature of the action sounds in tort," even if the parties' relationship was formed by a contract, because"the liability of the seller would exist even without a contract." According to Dusold, the duties involved here would be owed to him by Porta-John even if he were a contractual stranger. We agree. In our opinion, the resolution of this dispute can take place without any reference to or construction of the contract between the parties. As such, it is not subject to the arbitration clause in the contract requiring arbitration in Michigan. 807 P.2d at 531.
In the instant case, Ms. Lovey has alleged a claim of tortious bad faith. To recover on that claim, she must show: (1) BlueShield intentionally and unreasonably denied or delayed payment; (2) her claim was not fairly debatable; (3) BlueShield's denial or delay was not the result of good faith mistake; and (4) the resulting harm was not fully compensable by contract damages. Simper v. Farm Bur. Mut. Ins. Co. of Idaho, 132 Idaho 471, 974 P.2d 1100 (1999).
The duty allegedly breached by BlueShield is based solely upon the insurance policy. White v. Unigard Mut. Ins. Co., 112 Idaho 94, 730 P.2d 1014 (1986). That duty does not apply to the public in general or to anyone who is not a party to the policy. Id; Idaho State Ins. Fund v. Van Tine, 132 Idaho 902, 980 P.2d 566 (1999). In order to prove her bad faith claim, Ms. Lovey must establish that she was entitled to recover under the BlueShield policy. Robinson v. State Farm Mut. Auto. Ins. Co., 137 Idaho 173, 45 P.3d 829 (2002). Establishing that claim will require reference to or construction of some portion of the policy itself. Thus, Ms. Lovey's bad faith claim is a "claim arising out of or relating to" the BlueShield policy and is within the scope of the arbitration clause.
C. Is Either Party Entitled to an Award of Attorney's Fees on Appeal?
BlueShield requests an award of attorney's fees on appeal pursuant to Idaho Appellate Rule 41. It has not cited any statutory or contractual provision authorizing such award. Rule 41 specifies the procedure for requesting an award of attorney fees on appeal, but it does not provide the authority for awarding attorney fees. Camp v. East Fork Ditch Co., Ltd., 137 Idaho 850, 55 P.3d 304 (2002). Where BlueShield has failed to cite any authority authorizing an award of attorney fees to it, we will not address that issue. Id.
Ms. Lovey requests an award of attorney's fees on appeal pursuant to Idaho Code ยง 41-1839. Because she did not prevail on the appeal, she is not entitled to an award under that statute. Vaught v. Dairyland Ins. Co., 131 Idaho 357, 956 P.2d 674 (1998).
IV. CONCLUSION
We reverse the order of the district holding that the arbitration clause in the BlueShield policy is unenforceable, and we remand this case for further proceedings consistent with this opinion. We award costs on appeal, but not attorney's fees, to BlueShield.
Chief Justice TROUT and Justices SCHROEDER, WALTERS and KIDWELL CONCUR.
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