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holding that in order to prove fraud, a plaintiff must establish: a false representation of a material existing fact; knowledge on the part of the one making the representation that it is false; ignorance on the part of the one to whom the representation is made of the falsity; that the representation was made with the intention that it be acted upon; and damage caused by the representation
Summary of this case from People v. ClelandOpinion
No. 92SC530
Decided November 15, 1993. Rehearing Denied December 6, 1993.
Certiorari to the Colorado Court of Appeals
JUDGMENT REVERSED
McDermott, Hansen Reilly, Gerald P. McDermott, William J. Hansen, Denver, Colorado, Attorneys for Petitioners
Wood, Ris Hames, P.C., F. Michael Ludwig, Mary E. Kanan Mary E. Gibbons, Denver, Colorado, Attorneys for Respondent
Hall Evans, Alan Epstein, Denver, Colorado, Attorney for Amicus Curiae the American Insurance Association
Catherine Sparkman, Denver, Colorado
Richard E. Barnsback, Phillip E. Stano, David M. Leifer, Washington, D.C., Attorneys for Amicus Curiae Blue Cross and Blue Shield of Colorado and American Council Life Insurance
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Merrill Shields, Deputy Attorney General, Richard Djokic, First Assistant Attorney General, Robert M. Howard, Senior Assistant Attorney General, Regulatory Law Section, Denver, Colorado Attorneys for Amicus Curiae Colorado Commissioner of Insurance
We granted certiorari in this case to address several issues arising out of a medical malpractice insurance carrier's withdrawal from the Colorado market. The trial court, in a 294-page order, ruled in favor of the petitioners who are the doctors formerly insured by the medical malpractice insurance carrier. It held that the insurance carrier breached its contract with the doctors, engaged in fraud and negligent misrepresentation, and acted in bad faith. The court of appeals, in Ballow v. PHICO Insurance Co., 841 P.2d 344 (Colo.App. 1992), reversed, holding that the trial court erred in finding that the insurer breached its contract with the doctors, and that it engaged in fraud, negligent misrepresentation, and bad faith conduct. We granted certiorari and, for the reasons set forth below, we reverse.
I.
The petitioners are 105 medical doctors, doctors of osteopathy, and doctors of podiatric medicine practicing in the State of Colorado (collectively referred to in this opinion as doctors). The respondent, PHICO Insurance Co. (PHICO), is a medical malpractice insurance carrier owned by the Hospital Association of Pennsylvania (HAP).
PHICO was created in 1976 as a Pennsylvania malpractice insurer specializing in hospital coverage. In 1978, HAP decided to expand its programs and operations into states other than Pennsylvania, and to broaden its customer base to independent physicians. PHICO began marketing a claims-made policy in Colorado in the spring of 1981 and sold its first independent physician policy here on February 1, 1982.
The term "independent physicians," as used in this opinion, refers to those physicians with private practices who may have privileges at certain hospitals but who are not employed by such hospitals. "Employed physicians" are employed by hospitals.
To properly approach this case, a basic understanding of the concepts relevant to claims-made insurance coverage is required. There are presently two basic types of professional liability insurance policies: claims-made and occurrence. See Regulation 5-1-8, 3 C.C.R. 702-5 (1992). A pure claims-made policy provides coverage for claims made during the policy period, regardless of when the events out of which the claim arose occurred. 7A J. Appleman, Insurance Law and Practice § 4503, at 96 (Supp. 1992). In contrast, an occurrence policy provides coverage for all "occurrences" which take place during a policy period, regardless of when the claim is made. Id.
There is also a "hybrid" claims-made policy, requiring both a medical incident and a claim within the coverage period. Some jurisdictions have declared this hybrid to violate public policy in certain circumstances. See Sparks v. St. Paul Ins. Co., 495 A.2d 406 (N.J. 1985). Although the PHICO policy contains provisions characteristic of a hybrid claims-made policy, we need not address these public policy concerns since PHICO does not press this particular construction of its coverage.
Insureds who purchase claims-made policies can protect themselves against claims made after the policy terminates in one of two ways. One option is to obtain "prior acts" coverage. Under this option, the new insurer charges an additional premium to cover the insured for acts occurring before the inception date of the new policy. Insurers need not offer this coverage. Another option is to purchase extended reporting period, or "tail," coverage. See Regulation 5-1-8, 3 C.C.R. 702-5 (1992). This coverage, which is usually available, is purchased from the first insurer and covers future claims made for incidents occurring during the time of the claims-made coverage. In effect, such coverage turns claims-made coverage into occurrence coverage.
Pursuant to section 10-4-419, 4A C.R.S. (1987 1993 Supp.), claims-made policies issued or used in this state on or after January 1, 1987 must offer the insured the option to buy an extended reporting period policy of at least one year's duration with coverage equal to the aggregate limit of the policy coverage, for a premium not to exceed two hundred percent of the expiring policy premium. This statute was not in effect at the time of the events in question.
It is different from traditional occurrence coverage, however, in that there is only one policy (and one set of coverage limits) spanning all of the years that an insured had claims-made coverage with a given insurer.
When PHICO entered the Colorado market, most physicians were insured under occurrence policies and were reluctant to switch to claims-made policies. This reluctance stemmed, in part, from uncertainty concerning the cost of tail coverage. Many doctors testified that they feared the cost of tail coverage would be "unpredictably expensive," and that "the insurance company would be able to create any number out of the air and say this is [what it's] going to cost you to get out of the company." To allay the doctors' fears concerning the unpredictable cost of tail coverage, PHICO made numerous guarantees in its marketing. For example, Mr. Rodger Hasty, PHICO's Regional Manager in Denver, wrote to a prospective insured on October 12, 1982, repeatedly emphasizing that PHICO offered a percentage "cap" on both claims-made policy and tail policy premiums. PHICO sent prospective insureds a letter dated April 25, 1983, containing similar assurances:
We have eliminated all of the "unknowns" in the purchase of a "tail" policy. Its cost is now as predictable as the occurrence rate. Each policy will contain an endorsement which guarantees the cost of the basic claims-made coverage, as a percentage of our occurrence rate, and the cost of a tail policy, as a percentage of our mature (4th year) claims-made rate in effect at the commencement of your current claims-made policy.
A further example can be found in a letter dated June 8, 1983, from a PHICO agent to a physicians' group. This letter promised that "[t]he tail charges are guaranteed in the policy and are in no way subject to underwriting whims."
An endorsement to PHICO's early policies provided that tail coverage would be available for 79 percent of the mature rate premium after one year of coverage with PHICO, 112 percent of the mature rate premium after two years of coverage, and 118 percent after the third and every subsequent year of coverage. Despite previous assurances that the percentage rates on tail policy premiums were "capped," PHICO raised these rates on October 1, 1984. The new percentages, listed as an endorsement to the policy, were 89 percent of the mature premium rate after one year, 134 percent after the second year, and 140 percent after the third and every subsequent year.
This new endorsement also provided that "[t]ail policy premiums are percentages of the fourth-year premium in effect at the inception of the last policy period under the claims-made policy." As part of its April 1, 1986 premium increase, however, PHICO changed the date from which the tail premium was determined from the premium in effect at the beginning of the last policy year, to the premium in effect at the inception of the tail policy.
Changes in the terms of PHICO's tail policy coincided with changes occurring in PHICO's business philosophy. PHICO experienced its first net loss in 1984, amounting to $20 million before discounting. As of November 1, 1984, PHICO ceased accepting new individual physician business altogether. In correspondence sent to policyholders in 1985, PHICO claimed that it took this action to ensure that PHICO would remain strong for its present insureds. In fact, PHICO had altered its business plan, and had shifted its emphasis from individual doctors to institutional insureds, i.e., hospitals, and had as one of its 1985 business plan goals the reduction of its individual physician policy count. This goal included a timetable: 190 fewer individual physician policies by March 31, 1985; 310 by June 30; 810 by September 30; and 1,069 by the end of the year. The next year's business plan also included a timetable for reducing the individual physician policy count: 50 fewer individual physician policies by January 31, 1986; 100 by the end of February; 175 through March; 250 through April; 325 through May; 400 through June; 575 through July; 650 through August; 725 through September; 800 through October; 875 through November; and 1000 by year's end.
As the trial court noted, while PHICO's financial position allegedly worsened, its representations of longevity and stability became "almost strident" in their frequency and intensity. The court of appeals likewise found that PHICO kept its aggressive campaign for new business intact, despite radical changes in PHICO's business philosophy and indications that PHICO's continued presence in Colorado was questionable. Ballow, 841 P.2d at 349.
The actual decision to nonrenew independent physicians was made tentatively in a President's Committee meeting on June 12, 1986. The minutes of that meeting state that no announcement of the decision, even to staff, would be made until an official statement had been drafted and approved by the President's Committee. The decision was finalized in a follow-up President's Committee meeting on June 18, and presented to and approved by the Board of Directors on June 27 as part of the business plan.
PHICO sent a letter dated July 21, 1986 to the Colorado doctors, informing them about its decision to withdraw from the Colorado market. However, most of the doctors had renewal dates in July or earlier. Therefore, when they were informed about the withdrawal, the majority of the doctors had already renewed their policies requiring new, higher tail premium rates. If the doctors wanted to purchase tail coverage, they had no choice but to purchase a PHICO policy at these higher rates. COPIC, the only viable malpractice carrier in the market, did not offer "prior acts" coverage, and the Hartford Insurance Company had announced its decision to withdraw from the Colorado market on June 3, 1986.
In 1987, the doctors filed suit against PHICO, alleging breach of contract, fraud and negligent misrepresentation, bad faith, and interference with contract and prospective business opportunity. After a lengthy bench trial, the trial court entered judgment in favor of the doctors on the breach of contract, fraud and negligent misrepresentation, and bad faith claims. It also awarded punitive damages to 29 of the 105 doctors. PHICO appealed, and the court of appeals reversed, holding that PHICO did not breach its insurance contracts with the doctors when it changed the terms of its tail policy, and that the doctors' other claims failed mainly for that reason. We granted certiorari to review the court of appeals' decision, and we now reverse.
II.
The doctors initially contend that the court of appeals erred in its construction of the insurance contracts they had with PHICO. According to the doctors, the tail endorsement to the claims-made policy could not be modified unilaterally by PHICO since the policy was continuous in nature. PHICO, on the other hand, argues that the policy was a one-year term policy, freely modifiable on renewal. Finding the policy to be ambiguous with regard to duration, the trial court construed the policy in favor of the doctors. On appeal, the court of appeals held that the policy was unambiguous as a matter of law and covered only a one-year period. We disagree.
Unless there is an ambiguity in the terms of a policy, a court will enforce the insurance contract as written. Republic Ins. Co. v. Jernigan, 753 P.2d 229, 232 (Colo. 1988). However, if a contractual provision is ambiguous, it is construed against the insurer who drafted the policy and in favor of the insured. Chacon v. American Family Mut. Ins. Co., 788 P.2d 748, 750 (Colo. 1990). In order to determine whether an ambiguity exists, a court must begin with the language of the policy, construed in light of the generally accepted meaning of the words employed and with reference to all provisions of the document. Wota v. Blue Cross Blue Shield, 831 P.2d 1307, 1309 (Colo. 1992). We treat a policy provision as ambiguous when it is reasonably susceptible to more than one meaning. Northern Ins. Co. v. Ekstrom, 784 P.2d 320, 323 (Colo. 1989).
The key to determining the intended duration of this contract lies in construing the term "policy period," as used in the PHICO policy. The policy itself defines the term to mean "the policy period shown on the Declarations," and the declarations page contains the phrase "policy period," followed by a one-year time period. PHICO argues that this reference to a one-year period is dispositive and conclusively proves that each policy has a term of one year.
PHICO's argument ignores the fact that a single provision of an insurance contract cannot be read in isolation, but all of the provisions must be considered as a whole. Simon v. Shelter Gen. Ins. Co., 842 P.2d 236, 239 (Colo. 1992). Contrary to PHICO's assertions, an examination of the entire contract reveals that the term "policy period" is ambiguous because it is reasonably susceptible to more than one meaning. See Ekstrom, 784 P.2d at 323. While "policy period" may refer to a one-year period on the declarations sheet of the policy, PHICO also uses the term to refer to multiple-year periods in other parts of the policy.
Significantly, PHICO uses the term "policy period" to refer to multiple years of coverage in its tail policy endorsement, the terms of which are at issue in this case. For example, contrary to the declarations sheet, the endorsement which PHICO issued in 1982 does not limit the term "policy period" to a single policy year. Rather, the endorsement states that "extended reporting period" or tail coverage "extends indefinitely the period for reporting claims arising from medical incidents during the policy period." (Emphasis added). It then goes on to explain that tail premiums are "percentages of mature claims-made [4th year] premiums and increase each policy year for 3 years and then remain constant." (Emphasis added). If the term "policy period" were synonymous with "one year," then there would have been no need for the endorsement to distinguish between "policy period" and "policy year." This distinction only makes sense if PHICO intended for the phrase "policy period" in this context to refer to multiple policy years.
PHICO appears to concede that the term "policy period" in its tail endorsement refers to multiple-year periods. In its brief, for example, PHICO describes tail coverage in general as providing insurance for all "acts and omissions which occurred during the period of continuous coverage with the carrier," but which are reported at some future time. (Brief of Respondent PHICO Insurance Company at 2) (emphasis added).
The language PHICO uses throughout its tail policy endorsement further supports the view that the method of pricing tail coverage contained therein would continue beyond a single policy year. The endorsement issued by PHICO in 1982 is illustrative. In this endorsement, PHICO states:
Extended reporting form ("tail") premiums are percentages of MATURE CLAIMS-MADE [4th year] premiums and increase each policy year for 3 years and then remain constant. These percentages follow:
Policy year Tail Premium First Year 79% Second Year 112% Third Year 118% Fourth Year (etc.) 118%
If PHICO had intended to limit the terms of the tail endorsement to the policy year shown on the declarations page, it could have done so. However, by using the word "constant," and addressing the cost of tail coverage more than one year into the future, PHICO implied that the terms of the tail coverage offered would extend beyond a single policy year.
For example, Richard Laugesen, the doctors' insurance expert, testified that the language of the endorsement could have provided that the method of calculating the tail premium was "not guaranteed," or was "for this year only," or was "subject to change."
This conflict in the contract language is not confined to the tail policy endorsement, but can be found throughout the PHICO policy. For example, Form #M4-CO (rev. 10/83) issued by PHICO refers to calculation of the tail premium "based on the number of years a policy is in force." Here, "policy" is used in the singular, but refers to a period of "years." As the trial court noted in its order, this phrase belies PHICO's assertion that the policy was a one-year term policy.
Under the principles of contract interpretation outlined above, we believe that the duration of the PHICO policy is ambiguous. PHICO used the term "policy period" in its policy to refer to two different time periods. The declarations page of the contract defines "policy period" as a one-year period, but the language used by PHICO in other portions of the policy and in the tail policy endorsement contemplates contractual obligations extending beyond a one-year period. Given this conflict, the trial court did not err in construing the policy against PHICO and in favor of the insured doctors. See Simon, 842 P.2d at 242. When the policy is interpreted in this light, the trial court correctly determined that PHICO was bound by its promise to provide tail coverage at the rate initially contracted for, and breached this contract by later unilaterally changing the percentage and method by which the cost of tail coverage was calculated.
By finding the PHICO policy to be ambiguous, we simply hold that the duration of the policy is reasonably susceptible to more than one meaning. Since the duration of the PHICO policy is ambiguous, it must be construed against the insurer in accordance with well-settled rules of policy construction. See, e.g., Simon v. Shelter Gen. Ins. Co., 842 P.2d 236, 239 (Colo. 1992); Chacon v. American Family Mut. Ins. Co., 788 P.2d 748, 750 (Colo. 1990); Republic Ins. Co. v. Jernigan, 753 P.2d 229, 232 (Colo. 1988). It is not necessary for us to resolve this ambiguity in order to decide this case. Hence, we decline to characterize the PHICO policy as a "continuous" claims-made policy.
We also granted certiorari to consider the trial court's alternative holding that the policy should be construed in favor of the doctors under the doctrine of reasonable expectations. According to this doctrine, "[t]he objectively reasonable expectations of applicants and intended beneficiaries regarding the terms of insurance contracts will be honored even though painstaking study of the policy provisions would have negated those expectations." State Farm Mut. Auto. Ins. Co. v. Nissen, 851 P.2d 165, 167-68 (Colo. 1993) (quoting Robert E. Keeton, Insurance Law — Basic Text § 6.3, at 351 (1971)). Since we conclude that the trial court was correct in construing the PHICO policy in favor of the doctors because it was ambiguous, it is unnecessary for us to determine whether the same result could have been reached through application of the doctrine of reasonable expectations.
III.
The next question before this court is whether the trial court erred in finding that PHICO engaged in fraud, negligent misrepresentation, and bad faith conduct with regard to its nonrenewal of its independent physician insureds in Colorado. PHICO contends that the fraud and negligent misrepresentation claims were legally insufficient, and that bad faith is limited to the context of insurance claims. We disagree with both of these contentions.
In order to prove fraud, a plaintiff must establish: (1) a false representation of a material existing fact; (2) knowledge on the part of the one making the representation that it is false; (3) ignorance on the part of the one to whom the representation is made of the falsity; (4) that the representation was made with the intention that it be acted upon; and (5) damage caused by the representation. Kinsey v. Preeson, 746 P.2d 542, 550 (Colo. 1987). Similarly, the elements of fraudulent concealment are: (1) the concealment of a material existing fact that in equity and good conscience should be disclosed; (2) knowledge on the part of the party against whom the claim is asserted that such a fact is being concealed; (3) ignorance of that fact on the part of the one from whom the fact is concealed; (4) the intention that the concealment be acted upon; and (5) action on the concealment resulting in damages. Ackmann v. Merchants Mortgage Trust Corp., 645 P.2d 7, 13 (Colo. 1982).
The trial court found that PHICO made misrepresentations and failed to disclose information falling into four categories: (1) misrepresentations about the longevity and stability of the company; (2) misrepresentations about the tail premium charges; (3) misrepresentations about the mature premium rate; and (4) misrepresentations about the rates being charged by PHICO.
Specifically, the trial court made the following findings: (1) PHICO misrepresented that it would be available to the doctors throughout their retirement; (2) PHICO misrepresented that it was committed as a "partner" to the doctors; (3) PHICO failed to disclose that it was running off independent physicians; (4) PHICO misrepresented its financial position; (5) PHICO misrepresented that retirement benefits would be available to physicians who continued coverage with the company; (6) PHICO misrepresented that dividends would be available to the doctors; (7) PHICO misrepresented that it had specific expertise in providing insurance for doctors; (8) PHICO concealed its intent to nonrenew Colorado physicians while it accepted renewal premiums from the doctors; (9) PHICO misrepresented that the only time doctors would have to purchase a tail policy was when the doctors chose to leave the company; (10) PHICO misrepresented that the tail policy premium was a fixed percentage; (11) PHICO misrepresented that rates would remain stable under the claims-made policy; (12) PHICO misrepresented that the doctors would enjoy substantial cash flow savings; and (12) PHICO misrepresented that it was paying out claims far in excess of premiums paid.
Relying on its conclusions regarding the insurance contract, the court of appeals held that the doctors' claims based on misrepresentations of the tail premium charges, the mature premium rate, and the rates being charged by PHICO failed as a matter of law. The court of appeals stated that these misrepresentations were not actionable because a new contract was entered into each time a doctor renewed a policy, and that each doctor agreed to these changed terms upon renewal. Ballow, 841 P.2d at 351. As we held above, the court of appeals erred in its interpretation of the contract. Therefore, the insurance contract does not preclude these claims as a matter of law.
With regard to PHICO's representations about its stability and longevity, the court of appeals held that these were statements of opinion relating to future events, and as such, were not actionable. Id. This conclusion, however, overlooks the history of the misstatements made by PHICO.
The court of appeals also held that the doctors could not show any damage from PHICO's misrepresentations regarding its stability and longevity. The court reasoned, "[t]here is no evidence that the physicians did not get that for which they had bargained. PHICO continued its coverage of each doctor through his policy period." Ballow, 841 P.2d at 352. At oral argument, PHICO likewise argued that the doctors received all the services to which they were entitled because they had the right to purchase tail coverage to cover future claims. This argument ignores, of course, the difference between the actual cost of these policies to the doctors, versus the represented and contractually-agreed-upon costs.
By October 1984, PHICO had established a policy of, and a timetable for, eliminating its independent physician book of business nationwide. At this same time, however, PHICO continually reassured the doctors of its commitment to Colorado. In an advertisement published in the Colorado Insurance News in October 1984, for example, PHICO described itself as a company "that will stand by you in the long run," and which was "in the market to stay." PHICO also specifically and individually reassured twenty-nine of the doctors that it intended to remain in Colorado even as the decision to nonrenew independent physicians was being finalized. One physician in particular renewed his policy on July 1, 1986, after receiving "very emphatic" assurance in early June that PHICO had no intention of leaving the state. Had he not renewed his policy, the cost of tail coverage would have been $26,484. However, after renewing in 1986, his tail premium increased to $71,585.
Merely expressing an opinion in the nature of a prophecy as to the happening of a future event is not actionable. Leece v. Griffin, 150 Colo. 132, 135, 371 P.2d 264, 265 (1962). However, "[a] promise concerning a future act, when coupled with a present intention not to fulfill the promise, can be a misrepresentation which is actionable as fraud." Kinsey, 746 P.2d at 551 (quoting Stalos v. Booras, 34 Colo. App. 252, 256, 528 P.2d 254, 256 (1974)).
In this case, PHICO was not simply prophesying that it would be in Colorado, come what may. Instead, PHICO marketed itself saying that it intended to stay in Colorado for the long haul. While such statements may have reflected PHICO's true intent when it began doing business in Colorado, PHICO changed that intent over time due to perceived problems with the independent physician program. Thus, by October 1984, PHICO's commitment to Colorado may have existed with respect to certain sectors of the medical malpractice market (such as the hospital market), but it did not exist with regard to the independent physician sector. The trial court's findings and conclusions in this regard are not contrary to the evidence.
IV.
The third issue before the court is whether PHICO engaged in bad faith insurance practices leading up to and culminating in the nonrenewal of all of the independent physicians insured by PHICO. PHICO argues that it does not have a duty of good faith toward its insureds in the nonrenewal or negotiation context. We disagree.
In Farmers Group, Inc. v. Trimble, 691 P.2d 1138 (Colo. 1984), we recognized a claim for relief based on insurance bad faith in the context of a third-party insurance claim. Tort liability in that context
is grounded upon the special nature of the insurance contract and the relationship which exists between the insurer and the insured. The motivation of the insured when entering into an insurance contract differs from that of parties entering into an ordinary commercial contract. By obtaining insurance, an insured seeks to obtain some measure of financial security and protection against calamity, rather than to secure commercial advantage.
Id. at 1141. We held there that the applicable legal standard was whether the conduct of the insurer was reasonable.
In Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985), we extended this claim for relief to a first-party insurance claim. In that context, we stated that the plaintiff must also establish either knowledge on the part of the insurer that the conduct is unreasonable, or a reckless disregard for the fact that the conduct is unreasonable. Id. at 1276.
This case raises the question of whether there is a place for an insurance bad faith claim outside the scope of the insurance claims setting. PHICO argues that insurance bad faith does not apply outside the claims context. We disagree.
It is the nature of the relationship created by the insurance contract, rather than the activity involved, which determines if the duty of good faith and fair dealing exists. And, as we stated in Savio, this relationship "permeates all of the dealings of the parties." Id. at 1268 (emphasis added). Moreover, it is the policy of this state, announced in section 10-1-101, 4A C.R.S. (1987), that all persons providing insurance services to the public must "be at all times actuated by good faith in everything pertaining thereto." This duty is not limited, as PHICO argues, merely to the claims or cancellation contexts. Instead, the duty, as formulated by the General Assembly, is a broad and wide-ranging one, extending to "everything pertaining" to the provision of insurance services to the public.
As a general principle, we agree that an insurer may choose to nonrenew an insured for any reason. Buell v. Security Gen. Life Ins. Co., 779 F. Supp. 1579, 1581 (D. Colo. 1991), aff'd, 987 F.2d 1467 (10th Cir.), petition for cert. filed, 62 U.S.L.W. 3150 (U.S. Aug. 17, 1993) (No. 93-262). However, an insurer is required to act in good faith when carrying out its decision not to renew either a single insured or entire blocks of business. In this setting, we believe that good faith should be measured according to the legal standard used in the first-party claims context: unreasonable conduct and either knowledge or reckless disregard of the unreasonableness of the conduct. See Savio, 706 P.2d at 1276; Hartford Fire Ins. v. Colorado Div. of Ins., 824 P.2d 76, 80-81 (Colo.App. 1991), cert. denied (Feb. 18, 1992).
Whether this general principle is limited, as in the employment-at-will context, to any reason which is not repugnant to public policy is not before the court.
It is clear that the trial court did not err in holding that PHICO breached its duty of good faith by knowingly engaging in an unreasonable pattern of conduct. As in the Hartford case, PHICO enticed the doctors to purchase claims-made coverage through promises of longevity and assurances that the terms and method of calculating the premium for a tail policy would be fixed. It then undermined these promises by unilaterally changing the terms of the tail policy to discourage renewal by the doctors, and without disclosing its plan to nonrenew them. Instead, PHICO continued to reassure doctors that it had no intention of leaving the state in the several months prior to its withdrawal from the Colorado market. Rather than dealing with the doctors in good faith once it decided not to renew them, PHICO concealed its intention and actively misled the doctors to their detriment.
At trial, PHICO argued that its actions were dictated by business necessity and were therefore reasonable. The trial court, however, found this argument to be "simply not credible." PHICO allegedly suffered its first bad individual underwriting year in 1984. However, in that same year, "PHICO started a $15 million building project for a new home office and distributed stock to its top management in recognition of their contribution to the success of PHICO." (Trial Court Order at 242).
V.
Finally, we granted certiorari to determine whether this court should address certain damages issues raised by the physicians on cross-appeal, or whether these issues should be remanded to the court of appeals. At the present time, we decline to address the damages issues raised by the physicians for several reasons. First, we lack the proper legal and factual foundation to do so. The parties were unable to fully explore these issues before this court due to briefing limitations. Moreover, we cannot fully resolve this case without also considering the numerous damages issues raised by PHICO on appeal. Since the court of appeals reversed the trial court and found in favor of PHICO, it was not necessary for the court of appeals to consider PHICO's appeal on damages. However, since our decision today upholds the trial court's judgment in favor of the physicians, PHICO's damages issues, as well as the doctors' damages issues, must be addressed.
In the interests of judicial economy, we also decline to remand this case to the court of appeals for determination of the damages issues raised by the parties. Therefore, we will decide all damages issues in a separate opinion and, prior to our decision, the parties will be directed to fully brief these issues by further order of the court.
VI.
In summary, we conclude that the court of appeals erred in holding that the duration of the PHICO policy was unambiguous. The term "policy period" is ambiguously defined and used in the policy, and should have been construed in favor of the doctors. We also conclude that PHICO fraudulently misrepresented its intentions with regard to its commitment to serving the independent physician market in Colorado, and that PHICO engaged in bad faith insurance practices under the circumstances in which it nonrenewed the independent physicians. Accordingly, we reverse the court of appeals. We retain jurisdiction over this matter, and the parties will be directed to fully brief all damages issues by subsequent order of this court.