I agree with the disposition of all the assignments of error as set forth in the opinion of Judge Wise. I also agree with his analysis of all the assignments of error except the fifth assignment of error, part D. I agree that the admission of Dr. Peeno's testimony was error. I would find it to be harmless error based on the nature and amount of the other evidence presented at trial, not because Anthem was estopped from claiming the treatment was experimental after it had approved the therapy for Mrs. Dardinger on three previous occasions.

______________________ JULIE A. EDWARDS, P.J.

I respectfully dissent in part from the majority's disposition of assignments of error I, II, and V. I II I concur with the majority's opinion that the court should have granted a directed verdict or judgment notwithstanding the verdict (JNOV) in favor of AICI on the breach of contract claim. However, I disagree with the majority's conclusion that AICI may not be held liable for bad faith by virtue of the fact AICI did not breach its contractual guaranty duty to the plaintiffs. The tort of bad faith for breach of an insurer's obligation was first recognized by a court of last resort in Gruenberg v. Aetna Insurance Company (1973),9 Cal.3d 566. The Supreme Court of California recognized a cause of action in tort as a means of avoiding the harshness of the common law of contract, finding that the obligation of an insurer to deal fairly and in good faith with its insureds is a duty imposed by law, the breach of which is a tort. Id. at 574. Ohio recognized the tort of bad faith in Hoskins v. Aetna Life Insurance Company (1983), 6 Ohio St.3d 272. Currently, the tort is defined by Zoppo v. Homestead Insurance Company (1994), 71 Ohio St.3d 552, syllabus 1, cert. denied (1995), 516 U.S. 809, providing that an insurer fails to exercise good faith in the processing of a claim of its insured where its refusal to pay the claim is not predicated upon circumstances that furnish a reasonable justification therefore. The Ohio Supreme Court has never squarely addressed the issue of whether an insurer may be liable for the tort of bad faith in the absence of a breach of the express terms of the insurance contract. In Motorists Mutual Insurance Company v. Said (1992),63 Ohio St.3d 690,694-695, overruled on other grounds by Zoppo, supra, the court held that the tort of bad faith is not a tortious breach of contract, but rather arises as a consequence of the breach of a duty established by a particular contractual relationship. The Court of Appeals for Montgomery County has interpreted this language to mean that a cause of action for the tort of bad faith may exist irrespective of any liability arising from a breach of contract, does not necessarily rely on a breach of contract claim for its existence, and may in certain circumstances be brought as a separate cause of action. Bullet Trucking, Inc. v. Glenn Falls Insurance Company (1992), 84 Ohio App.3d 327, 333. The Franklin County Court of Appeals has disagreed with the Bullet Trucking case, concluding that Ohio law does not support the proposition that an insured may maintain an action for failure to investigate where he did not establish an entitlement to coverage under the policy. Pasco v. State Automobile Insurance Company (December 21, 1999), Franklin Appellate No. 99AP430, unreported. I would conclude that a review of the policy interests underlying the existence of the tort of bad faith, and a review of cases from other states, requires a conclusion that under Ohio law, a tort action may, in certain circumstances, exist in the absence of a breach of the express terms of the contract. The public interest in insurance contracts, the nature of insurance contracts, and the inequity in bargaining power between the insurer and the policy holder all serve to distinguish insurance contracts from other types of contracts. Best Place, Inc. v. Penn America Insurance Company (1996), 82 Haw. 120, 131. A tort action for breach of a covenant implied in a certain type of contractual relationship is more likely to be recognized where the contract is one from which the plaintiff seeks something more than a mere commercial advantage from the defendant. Id. In an insurance contract, the policy holder typically seeks the peace of mind and security which arises from the purchase of protection against calamity. See Egan v. Mutual of Omaha Insurance Company (1979), 24 Cal.3d 809, 817, cert. denied (1980), 445 U.S. 912. Insurance companies use the concept of selling peace of mind in the manner in which they market insurance contracts. Even a cursory viewing of television exposes the viewer to commercials for the sale of insurance, indicating that the purchaser will be "in good hands," that he has a "piece of the rock," or the insurer will be there "like a good neighbor." Farris v. U.S. Fidelity and Guaranty Company (1978), 284 Or. 453, 479 (Lent, dissenting). The application of a bad-faith tort is necessary because of the relationship between the parties, and the fact that in the insurance field, the insured typically has no voice in preparation of the policy. McEvoy v. Group Health Cooperative of Eau Claire (1997), 213 Wis.2d 507, 521-522. Furthermore, there generally is a great disparity between the economic positions of the parties to a contract of insurance, and at the time an insured party makes a claim, he may be in dire financial straits, and be especially vulnerable to oppressive tactics. Id. All of the arguments cited above to justify the existence of a tort action in bad faith are particularly applicable to a heath insurance contract. In the climate of today's medical economy with the high cost of medical treatment, an adverse benefits ruling means not just that the insurance company will not provide payment, but that medical care itself is effectively denied. Id., at 521. Prior to managed care, coverage was tangential to the delivery of health care. W. Sage, Judicial Opinions Involving Health Insurance Coverage, 31 Ind. L. Rev. 49, 52 (1998). Disputes arose long after treatment was rendered, and focused on payment rather than survival. Id. Healthcare policy makers did not connect coverage litigation with issues of cost, access to medical care, and quality of medical care. Id. at 53. As medical costs have risen and managed care organizations have combined financing with delivery of care, the relationship between the denial of coverage and the ability to receive care has become clearer. Thus, several states have recognized a tort action independent of a breach of contract action, and concluded that an insurer may be liable for breach of the duty of good faith even if the insurer did not breach any of the express terms of its contract with the insured. For example, in concluding that breach of an express covenant in an insurance policy is not a prerequisite to bad-faith claim, the Supreme Court of Arizona found that the implied covenant of good faith may be breached, whether the carrier pays the claim or not, when its conduct damages the very security which the insured sought to gain by buying insurance. Deese v. State Farm Automobile Insurance Company (1992),172 Ariz. 504, 507-508. South Carolina has similarly concluded that the benefits due an insured are not limited solely by those expressly set out in contract, and an insurer may therefore be liable for bad faith even if the insurer has not breached a contractual provision. Tadlock Painting Company v. Maryland Casualty Company (1996), 322 S.C. 498. In distinguishing a tortious breach of contract from the tort of bad faith, the Supreme Court of Hawaii concluded that the tort of bad faith allows an insured to recover even if the insurer performs the express covenant of the contract. Best Place, supra, at 131. See also Robinson v. North Carolina Farm Bureau Insurance Company (1987), 86 N.C. App. 44, 49-50 (nothing in case law requires that the tortious conduct be accompanied by a breach of the contract, as an insurance company is expected to deal fairly and in good faith with policy holders). I would therefore conclude that an action in tort for bad faith is not dependent on a breach of contract action, but rather a bad faith claim may be established if the facts demonstrate that the insurer has failed to deal fairly with the insured. The issue thus becomes whether the contractual relationship and course of dealing between the parties is sufficient to allow the trial court to submit the issue to the jury of whether AICI breached a duty of good faith, or whether the court should have directed a verdict for AICI. I would hold that bad faith claims are necessarily decided on a case-by-case basis, and a trial court must analyze the evidence of involvement of the party defendant to determine if the action survives directed verdict. In the instant case, based on AICI's involvement, I would find that the court did not err in submitting the claim to the jury. AICI is the parent corporation of Community Insurance Company, dba Anthem Blue Cross and Blue Shield. The Certificate of Membership and Summary of Benefits, signed by Ben Lytle as CEO of AICI, and attached to the certificate of insurance provided to appellees, includes the guaranty language cited by the majority, providing that AICI would pay in the event Community becomes financially unable to satisfy its obligation to provide insurance. AICI's role as guarantor alone would not support a claim against them. However, this certificate goes onto state: As long as the Guaranty Policy is in effect, you will be a member of Associated entitled to all rights of membership in Associated accorded to members of a mutual insurance company under the Indiana Insurance Law, including the right to one vote on all matters that come before the members of an Indiana domestic mutual insurance company under the Indiana Insurance Law and equity rights in the event of a liquidation, merger, consolidation or demutualization as provided in Associated's Article of Incorporation from time to time in effect. Such equity rights are intended to be equivalent to the rights which you would have as a member under an Associated policy if Associated rather than Community had issued the Community contract.

This language goes beyond a mere guaranty of payment in the event of Community's demise. This certificate creates a relationship between AICI and the policy holders of Anthem, giving the policy holders membership rights in AICI. Further, there is evidence that AICI was involved in decisions regarding the broad general medical policy of Anthem, and specifically involved in the decision regarding appellee's appeal, which affected the general medical policy of the company. As stated by Judge Frost in overruling appellant's motion for judgment notwithstanding the verdict: As was noted in the plaintiff's memorandum contra, the parent company controlled the conduct of its subsidiary by promulgating the medical policy upon which the basis of the denial of coverage was made, by processing the appeal of the denial of coverage and by the participation of its employees in the misconduct alleged herein. Additionally, this Court finds that the parent company was actively involved in the facts of this matter and did not sit back as a parent company overseeing the acts of the subsidiary. The defendant, Anthem Insurance Company, Inc., was not only directly and actively involved but all of the actions of the defendant Community Insurance Company, were undertaken pursuant to policies and procedures promulgated by the defendant, Anthem Insurance Company, Inc.

Judgment Entry, October 25, 1999 Although the court erroneously used the phrase "piercing the corporate veil," the evidence of AICI's involvement in the instant action supports a conclusion that a contractual relationship between the parties is implied through AICI's involvement in the appeals process. There was evidence that all medical policy was established by AICI, and that the medical policy unit makes decisions on appeals affecting medical policy. There was evidence that while the Cincinnati appeals office assembled the paperwork, such paperwork was then sent to AICI for processing of the appeal. In fact, the appeals coordinator had attempted to hand deliver Esther Dardinger's chart to the Indianapolis office in order to avoid the mail delay, but the chart was rejected for failure to include all the forms necessary for processing. There was evidence that Leeann Rossi, Appeals Processor for Anthem in Youngstown, prepared the final letter denying the appeal, but the actual decision on the appeal had been made by the medical policy unit, and she had no involvement other than signing the final letter as directed. In addition, except for the limited purpose of a motion for a directed verdict and judgment notwithstanding the verdict, the defendants represented themselves to the jury and the court as a single entity, "Anthem," represented by a single attorney. In both argument and testimony, there was no effort to distinguish between the corporate entities. Addressing a different but analogous issue, the Supreme Court of Wisconsin concluded that an HMO making an out-of-network benefit decision is an insurer, subject to potential liability for bad faith. McEvoy, supra, at 517. As a practical matter, HMO subscribers are similarly situated vis-a-vis their HMO as insurance policy holders are to a traditional insurance company. Id. at 520. Similarly, in the instant case, the appellees were situated in the same position with AICI as with Anthem. AICI was making policy decisions, both general and specific, which directly affected the medical care afforded to Esther Dardinger, with a complete inequality of bargaining power between the parties. Accordingly, under the particular facts and contractual relationship in the instant case, I would conclude that AICI was an insurer of appellees, subject to liability for the tort of bad faith for its actions in the handling of appellee's appeal. By injecting itself into the decision making process and de facto controlling a contract to which it is not a party, AICI has an implied obligation to deal in good faith, and cannot now avoid answering in tort for breach of this duty based on its actions. I would enter judgment dismissing AICI from the breach of contract action, but affirm the judgment finding the defendants jointly and severally liable for compensatory damages for the tort of bad faith. I would also affirm the decision to award punitive damages in the instant case, but sustain assignment of error VIII, relating to remittitur of the punitive damage award. A court has inherent authority to remit an excessive award, assuming it is not tainted by passion or prejudice, to an amount supported by the weight of the evidence. Wightman v. Consolidated Rail Corp. (1999), 86 Ohio St.3d 431, 444, cert. denied (2000), 529 U.S. 1012. Before a court may grant a remittitur, four requirements must be meet: (1) Unliquidated damages are assessed by a jury,

(2) The verdict is not influenced by passion or prejudice,

(3) The award is excessive, and

(4) The plaintiff agrees to a reduction in damages. Id.

In considering a remittitur, the court must keep in mind the twin goals of punitive damages: punishment and deterrence. Id. at 445. The U.S. Supreme Court has identified three guideposts which indicate that a punitive damage award is grossly excessive, so as not to give a person fair notice of the magnitude of a sanction which may be imposed: (1) the degree of reprehensibility of the defendant's conduct, (2) the ratio between compensatory and punitive damages awarded in the case, and (3) the difference between the award and the civil or criminal sanctions that could be imposed for comparable misconduct. BMW v. Gore (1996),517 U.S. 559. In the instant case, I would conclude that the court abused its discretion in denying the motion for remittitur, as the punitive damage award of $49,000,000 bears no reasonable relationship to the compensatory damage award of $2,500,000. There is nothing in the record to suggest that the appellants could be subject to sanctions in the amount of $49,000,000 for their actions in this case. I would conclude that the award is excessive, and the court should have offered a remittitur to the plaintiffs in lieu of a new trial. V Finally, I dissent from the majority's conclusion in assignment of error V that the court abused its discretion in admitting evidence of executive's salaries. In considering punitive damages, the jury may consider what amount of money is necessary to send a message to the defendants, deterring future conduct. While the personal executive's salaries are only marginally relevant to this issue, the appellants have not demonstrated prejudice sufficient to require reversal from the admission of this evidence. Accordingly, I would overrule the fifth Assignment of Error in its entirety.

____________________ W. SCOTT GWIN, JUDGE

OPINION

• did not have governmental approval for marketing at the time when furnished for the purpose or manner rendered; or

• is not supported by Reliable Evidence which shows that the service: — is generally recognized as being safe and effective for treating the condition in question by those practicing the appropriate medical specialty; — has a definite positive effect on health outcomes; — over time leads to improvement in health outcomes under standard conditions of medical practice outside clinical investigatory settings (i.e., the beneficial effects outweigh any harmful effects); and — is at least as effective as standard means of treatment in improving health outcomes, or is usable in appropriate clinical contexts in which standard treatment means is not employable.

Reliable Evidence includes only:

1. Published reports and referred articles in authoritative medical and scientific literature; 2. the written investigational or research protocols and/or the written informed consent used by the treating facility or of another facility which is studying the same service; and 3. compilations, conclusions and other information which we have available which are drawn from (1) or (2) above.

We have the authority and discretion to determine all questions in connection with whether any service is Experimental/Investigative under this Certificate. Policy of Insurance at 32-33. Mrs. Dardinger began intra-arterial chemotherapy, with Dr. Newton, in April 1997. Following her second treatment in May 1997, an MRI indicated that Mrs. Dardinger was responding well to the treatment. Anthem pre-approved both of these treatments. Anthem also pre-approved Mrs. Dardinger's third treatment. However, when Mrs. Dardinger arrived for her fourth treatment, she was informed that there was a problem with the pre-certification from Anthem. Dr. Newton believed this was just a "glitch" because Anthem had pre-approved the previous three intra-arterial treatments. Mrs. Dardinger proceeded with the fourth treatment based upon Dr. Newton's belief. As a result of the denial of pre-approval for the fourth treatment, appellee understood that Ohio State University would appeal Anthem's decision. On July 7, 1997, appellee spoke with Anthem employee, Beth Jones, who confirmed that Ohio State University was appealing the denial and that there was nothing he could do but wait to see how the appeal proceeded. Because of Anthem's denial of pre-approval for the fourth treatment, Mrs. Dardinger was hesitant to proceed with the fifth treatment until the appeal concerning the fourth treatment was resolved. They thought the appeal would be resolved by the end of August 1997. In the normal course of treatment, Mrs. Dardinger should have undergone her fifth treatment in late July. The Dardingers had planned a vacation for the end of July so they decided Mrs. Dardinger would have an MRI when they returned. This MRI did not show as much improvement as the MRI after the second treatment, however, it did show that Mrs. Dardinger was responding to the treatment. Dr. Newton informed Mrs. Dardinger that she should continue with the intra-arterial chemotherapy. Also, due to Mrs. Dardinger's improved condition, Dr. Newton was able to decrease the amount of Decadron she was taking which he had prescribed to reduce the swelling in her brain caused by the tumors. Appellee contacted Tammy Kornja, an employee of the insurance brokerage firm that sold the Anthem policy to the school where appellee teaches, and inquired about the appeal. Ms. Kornja informed appellee that the appeal was successful. Appellee later learned that Ms. Kornja had received incorrect information. Thereafter, the Dardingers returned to Dr. Newton to discuss their options which were either to continue with the intra-arterial treatment despite Anthem's denial or administer the drugs intravenously. Dr. Newton did not believe the intravenous treatment would be as effective and he was concerned with the increased risks associated with intravenous administration. Thereafter, Mrs. Dardinger decided to proceed with regular intravenous treatment because Anthem would pay for this type of treatment. Mrs. Dardinger believed the intravenous treatment would keep the tumors stable while the appeal of the denial of pre-approval for the intra-arterial chemotherapy proceeded. Appellee testified that Mrs. Dardinger made this decision because she was worried about the significant cost of the treatment and her family's finances. Appellee knew that the remaining eight treatments would cost from $65,000 to $70,000, and if the treatments continued for another year, it would be an additional $70,000 to $90,000. Mrs. Dardinger received intravenous chemotherapy in mid-September 1997, which resulted in an immediate adverse reaction. Mrs. Dardinger's condition worsened and when she went to the hospital for an MRI to see how she was responding to the intravenous chemotherapy treatment, appellee was told that she was too sick to send home. Mrs. Dardinger remained in the hospital for two weeks recovering from the intravenous chemotherapy treatment. The MRI indicated that the tumors had grown as a result of the discontinuation of the intra-arterial chemotherapy treatments. Because of this adverse reaction, Mrs. Dardinger decided to continue with the intra-arterial chemotherapy. On October 31, 1997, Mrs. Dardinger went to Ohio State University for outpatient surgery to have the port inserted for her next intra-arterial treatment. Mrs. Dardinger was very ill at this point and had to be admitted into the hospital. The Dardingers had still not heard from Anthem about the appeal. Appellee was then informed that the tumors had grown too large and that nothing could be done. Mrs. Dardinger died on November 6, 1997, as a result of the pressure on her brain stem from the increased size of the tumors. On November 10, 1997, after returning home from his wife's funeral, Mr. Dardinger received a letter in the mail indicating Anthem denied the appeal on the basis that it was experimental. Appellee originally filed his complaint on March 11, 1998. On April 22, 1998, appellee filed an amended complaint and set forth the following causes of action: breach of the health insurance contract, bad faith, intentional infliction of emotion distress, and wrongful death. Appellee also demanded punitive damages. Prior to trial, appellee dismissed the wrongful death claim. The trial commenced on September 13, 1999. The trial court dismissed the intentional infliction of emotional distress claim, by directed verdict, at the conclusion of appellee's case in chief. Following deliberations, the jury found in favor of appellee awarding him $1,350 for the breach of contract claim; $2,500,000 for the bad faith claim; and $49,000,000 for punitive damages. The trial court entered judgment upon the jury's verdict on September 27, 1999. On October 11, 1999, appellants moved for judgment notwithstanding the verdict or, in the alternative, for a new trial, or, in the alternative, for a remittitur. The trial court overruled appellants' motion for post-trial relief. Appellants filed a notice of appeal on November 19, 1999. On November 30, 1999, the trial court entered a separate judgment awarding appellee $790,000 in attorney's fees. Appellants also appealed this judgment on December 8, 1999. We consolidated the two appeals on December 28, 1999. Appellants set forth the following assignments of error for our consideration:

I. THE TRIAL COURT ERRED IN DENYING AICI'S MOTION FOR DIRECTED VERDICT.

II. THE TRIAL COURT ERRED IN DENYING AICI'S MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT.

III. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION FOR A DIRECTED VERDICT ON PLAINTIFF'S CLAIM FOR BREACH OF CONTRACT.

IV. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTIONS FOR DIRECTED VERDICT AND/OR FOR JNOV WITH RESPECT TO PLAINTIFF'S CLAIMS FOR PUNITIVE DAMAGES.

V. THE TRIAL COURT ERRED TO THE PREJUDICE OF BOTH DEFENDANTS IN ADMITTING HIGHLY INFLAMMATORY EVIDENCE THAT WAS IRRELEVANT AND/OR INCOMPETENT AND/OR MISLEADING.

VI. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTIONS FOR A NEW TRIAL.

VII. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION FOR A NEW TRIAL IN LIGHT OF THE UNCONSTITUTIONALLY EXCESSIVE AMOUNT OF THE PUNITIVE DAMAGE AWARD.

VIII. THE TRIAL COURT ERRED IN DENYING DEFENDANTS' MOTION FOR A SUBSTANTIAL REMITTITUR OF THE PUNITIVE DAMAGE AWARD.

IX. THE TRIAL COURT ERRED IN AWARDING ATTORNEY'S FEES TO THE PLAINTIFF.

Thus, AICI maintains that because Anthem never became "financially unable" to pay Mrs. Dardinger's intra-arterial chemotherapy treatments, a contractual duty never arose between AICI and the Dardingers. For this reason, at the conclusion of appellee's case, defense counsel moved for a directed verdict. Tr. Vol. IX at 61-62. In response to AICI's motion, appellee argued that: * * * the jury could find that medical policy was established in Indiana, that the Indiana corporation was applied throughout the system. The evidence establishes particularly in the latter part, in the September, October time period when the appeal was still pending, that whole appeal was handled in Indiana. You may recall the E-mails about we got to get the file to Indiana and somebody was going to drive it over and then they didn't get it there and, in fact, Dr. Schroeder, who made the final call, was an employee of the Indiana corporation. Furthermore, it is clear that the business of the Community Insurance in Cincinnati, an Indiana company, they are inextricably intertwined and ratified one another's acts. So we think there's ample evidence for the jury to find them equally liable. Id. at 81. The trial court overruled the motion for a directed verdict as to AICI. Id. at 100. Based upon our review of the record, we conclude the trial court erred when it overruled AICI's motion for a directed verdict. In order to establish his breach of contract claim against AICI, appellee had to establish that AICI breached its guarantor obligation as provided for in the Certificate of Membership and Summary of Benefits. Pursuant to the language of the certificate, AICI could breach its obligation under the policy of insurance only if it refused to pay Anthem's obligations and liabilities in the event that Anthem became financially unable to do so. Although Anthem refused to pay for Mrs. Dardinger's intra-arterial chemotherapy, the refusal was based upon the fact that the treatment was considered experimental, not that Anthem was financially unable to pay for the treatment. Thus, AICI never had a duty to pay for Mrs. Dardinger's intra-arterial chemotherapy because Anthem's refusal to pay was due to the nature of the treatment. Therefore, under the terms of the Certificate of Membership and Summary of Benefits, AICI did not breach its duty owed to the Dardingers. Accordingly, the trial court erred when it denied AICI's motion for a directed verdict. We would also note that appellee, throughout the trial, never mentioned the terms "piercing the corporate veil" or "alter ego" when referring to AICI. Instead, the defendants were merely referred to collectively, by both parties, as "Anthem." With respect to the law regarding piercing the corporate veil, the Ohio Supreme Court stated in the case of Belvedere Condominium Unit Owners' Assn. v. R.E. Roark Cos., Inc. (1993), 67 Ohio St.3d 274, that: The corporate form may be disregarded and individual shareholders held liable for wrongs committed by the corporation when (1) control over the corporation by those to be held liable was so complete that the corporation has no separate mind, will, or existence of its own, (2) control over the corporation by those to be held liable was exercised in such a manner as to commit fraud or an illegal act against the person seeking to disregard the corporate entity, and (3) injury or unjust loss resulted to the plaintiff from such control and wrong. Id. at paragraph three of the syllabus.

Because piercing the corporate veil is not a claim, but merely a remedy encompassed within a claim, appellee was not required to plead it in his complaint. See Geier v. National GG Industries, Inc. (Dec. 23, 1999), Lake App. No. 98-L-172, unreported, at 4. However, appellee was required to present the remedy to the jury, which the record indicates he did not do. The remedy also was not presented in the instructions to the jury. Nor was it addressed in the jury interrogatories. In fact, the issue was not addressed until the trial court did so in its judgment entry denying the judgment notwithstanding the verdict. The trial court concluded that "* * * Anthem Insurance Company, Inc., as a parent corporation, may be held liable under the theory that the corporate status of the subsidiary, Community Insurance Company, will be disregarded when it is so dominated and controlled that it is no more than a paper existence." Judgment Entry, Oct. 25, 1999, at 2. We conclude it was improper for the trial court to make this finding, after the conclusion of the trial, when ruling upon a post-trial motion. AICI also maintains, under this assignment of error, that without a contractual obligation, it may not be held liable for bad faith and may not be exposed to punitive damages or attorney's fees for bad faith. We agree with this argument. In the case of Motorists Mut. Ins. Co. v. Said (1992), 63 Ohio St.3d 690, overruled on other grounds by Zoppo v. Homestead Ins. Co. (1994), 71 Ohio St.3d 552, the Ohio Supreme Court discussed the tort of bad faith. A bad faith claim arises "* * * as a consequence of a breach of a duty established by a particular contractual relationship." Id. at 694-695. The Court further explained that: `[A] breach of this duty will give rise to a cause of action in tort against the insurer.' [Citations omitted.] * * * The tort of bad faith is not a tortious breach of contract, for no matter how willful or malicious the breach, it is no tort to breach a contract. [Citations omitted.] * * * Rather, the tort of bad faith arises as a consequence of a breach of a duty established by a particular contractual relationship. * * * The duty may be breached only by an intentional failure by the insurer to perform under its contract with the insured. Id.

The intent necessary to establish the tort of bad faith requires that the insurer, through its actions, or inactions, intentionally refuses to satisfy the insured's claim. Motorists Mut. Ins. Co. at 699. Thus, "* * * [f]or an insurance company's decision on a claim to be made in good faith, it must be based upon knowledge of the facts and circumstances upon which liability is predicated." Id. Pursuant to the above definition of the tort of bad faith, the Court concluded that a cause of action for bad faith may arise under two circumstances. Under the first scenario, a cause of action for bad faith may arise when an insurer breaches its duty of good faith by intentionally refusing to satisfy an insured's claim where there is "* * * no lawful basis for the refusal coupled with actual knowledge * * *." Id. at 700. In Bullet Trucking, Inc. v. Glen Falls Ins. Co. (1992), 84 Ohio App.3d 327, the Montgomery County Court of Appeals explained that a plaintiff asserting both a breach of contract claim and a tort claim of bad faith will have to succeed on the contract claim if he or she is to succeed on the tort claim of bad faith because the plaintiff must first prove that the insurer had no lawful basis for refusing to satisfy his contract claim thereby establishing the proof necessary for the breach of contract claim. Id. at 334. "Only then can the plaintiff establish the tort claim by proving that the insurer had actual knowledge that its refusal to satisfy the contract claim was without lawful basis." Id. Under the second scenario, a plaintiff may maintain a cause of action for bad faith independent of a contract claim by establishing that the insurer intentionally failed to determine whether its refusal had a lawful basis. Id. The Montgomery Court of Appeals explained: * * * it is entirely possible that the plaintiff in this type of bad faith claim is unable to establish that the insurance company's refusal to satisfy the contract claim was unlawful, thereby negating any chance of his succeeding on a breach of contract claim, but at the same time he can nevertheless establish that the insurer intentionally failed to determine whether its refusal had a lawful basis, thereby establishing the bad faith claim. Id. In the amended complaint filed on April 22, 1998, appellee states in paragraph 22, "Defendants breached its duty to act in good faith in processing Esther Dardinger's request for benefits because its refusal to approve and pay for the brain chemotherapy was not reasonably justified." (Emphasis added.) Appellee essentially claims that Anthem had no lawful basis for refusing to satisfy Mrs. Dardinger's contract claim for intra-arterial chemotherapy. Appellee clearly does not allege in the complaint that Anthem intentionally failed to determine whether its refusal to provide coverage of Mrs. Dardinger's intra-arterial chemotherapy had a lawful basis. Since appellee's complaint sets forth the type of bad faith claim discussed above, under the first scenario, appellee could only maintain the bad faith cause of action if he first established a breach of contract. However, because AICI had no contractual obligation to Mrs. Dardinger, as it was merely a guarantor of the contract, AICI did not breach the contract and thus, could not be held liable under a bad faith claim. Accordingly, we sustain the First Assignment of Error. In doing so, we remand this matter to the trial court for a new trial as to the issue of damages against Anthem since the jury interrogatories did not separately indicate the amount of the judgment rendered against each appellant. Also, the jury's verdict, as to damages, is based upon the combined financial information of both AICI and Anthem. We do not vacate the award of compensatory damages against Anthem for breach of contract and bad faith. AICI's First Assignment of Error is sustained. AICI's Second Assignment of Error is moot based upon our disposition of AICI's First Assignment of Error.

Thus, "[w]hen a contract is breached, the innocent party may recover either his expectancy or the benefits he has conferred upon the breaching party by his performance under the contract." Id. at 16, citing 3 Restatement of Contracts 2d 208, Section 373. However, in order to obtain restitution as a measure of damages, the breach must be "substantial." A breach is "substantial" when `* * * non-performance is so material that it is held to go to the "essence"; it must be such a breach as would discharge the injured party from any further contractual duty on his own part.' Id. at 16, fn. 2, citing 5 Corbin on Contracts 561-564, Section 1104. In the case sub judice, we conclude the trial court properly denied Anthem's motion for a directed verdict because there was substantial evidence to support appellee's breach of contract claim against Anthem, upon which reasonable minds could have reached different conclusions. Anthem relies upon the "Experimental/Investigative" language contained in its policy of insurance to support its conclusion that intra-arterial chemotherapy is experimental. Although Anthem does not specifically assign as error, on appeal, the jury's finding that it breached its contract with the Dardingers, as noted above, we find sufficient evidence, in the record, to support this conclusion. Pursuant to the language contained in the policy of insurance, we conclude that Anthem cannot argue that the intra-arterial chemotherapy was experimental once it approved three treatments for Mrs. Dardinger and the treatments improved her condition. Anthem argues that there was no "reliable evidence" indicating that intra-arterial chemotherapy, with the drug Carboplatin, is a recognized method of treatment for this type of condition. Had Anthem denied Mrs. Dardinger's first treatment based upon the lack of "reliable evidence" this case would present an entirely different set of facts to be applied to the breach of contract claim against Anthem. However, once Anthem pre-approved three intra-arterial chemotherapy treatments for Mrs. Dardinger and her condition improved from these treatments, Anthem had "reliable evidence", as to this specific case, that intra-arterial chemotherapy, with Carboplatin, "is at least as effective as standard means of treatment in improving health outcomes, or is usable to appropriate clinical contexts in which standard treatment means is not employable." We further conclude the trial court properly permitted the jury to consider appellee's request for reimbursement of premiums paid as a measure of damages if the jury determined that Anthem breached the contract. Clearly, once the jury determined that Anthem breached its contract with Mrs. Dardinger, the only available measure of damages would be to refund the premiums paid during the period of the breach as Mrs. Dardinger could no longer be put in as good a position as she would have been in had the contract been performed by Anthem. We also conclude the refund of premiums paid, during the period of the breach, to be a proper measure of damages because said breach was substantial in nature. The denial of medical treatment, under a policy of health insurance, goes to the essence of the contract. Anthem's Third Assignment of Error is overruled.

Anthem also argues that the questioning of James Murphy about the number of complaints filed with the Ohio Department of Insurance was merely a sham used for the purpose of introducing this highly inflammatory evidence. We disagree and instead find that the trial court did not abuse its discretion when it permitted the introduction of this evidence to impeach the testimony of James Murphy. Finally, Anthem maintains this evidence should have been excluded under Evid.R. 403(A) because it was unfairly prejudicial. Evid.R. 403 provides: (A) Exclusion mandatory Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.

Based upon our review of this information, we conclude the trial court properly admitted this evidence under Evid.R. 403(A) because it was not unfairly prejudicial. "Unfair prejudice results when a party reaps an unfair advantage from the capacity of the evidence to persuade by illegitimate means." State v. Ramsey (March 6, 1989), Stark App. No. 7558, unreported, at 2, citing 6 Wigmore, Evidence (3d Ed. 1940), Section 1865, p. 491. The Advisory Committee Notes to Fed.R.Evid. 403 states that "`[u]nfair prejudice' within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one." We find this information did not have the tendency to suggest a decision upon an improper basis and therefore, its probative value was not outweighed by the danger of unfair prejudice. This evidence merely established the number of complaints filed against Anthem. We agree that it is impossible to determine, from this exhibit, the basis for each complaint filed against Anthem or the validity of the complaints. However, the document warns that "[e]very complaint filed with the Ohio Department of Insurance has been counted, with no judgment as to `validity.'" Thus, the exhibit itself did not attest to the validity of these complaints. This evidence suggests no decision since the reasons for the complaints and the validity of the complaints are unknown. C. List of Dr. Newton's Patients Anthem next maintains that appellee was improperly permitted to introduce a list of Dr. Newton's patients who had allegedly undergone intra-arterial chemotherapy paid for by other insurance companies. At the time of his deposition in August 1998, Dr. Newton produced a list with the names of patients whom he had allegedly treated with intra-arterial chemotherapy. For confidentiality purposes, the patients were identified by number. Each patient's insurer was disclosed. Of the eighty-two patients identified on the list, over twenty were listed as insureds of Anthem. On September 2, 1998, the trial court conducted a hearing on pending discovery issues. Both parties requested discovery of documents relating to the patients identified on the list. The trial court stated that it could not order Dr. Newton to produce records relating to patients who were not insured by Anthem. However, the trial court suggested to the parties that they request those records from Dr. Newton. Specifically, the trial court's order states as follows: An issue has arisen with regard to Dr. Newton's previous similar procedures which Dr. Newton undertook on other patients. With regard to Anthem patients upon which Dr. Newton has performed similar procedures, Dr. Newton shall provide the names of those patients directly to the defendants' counsel, defendant shall search those records, redact the names, and provide the redacted information to counsel for the plaintiff. With regard to non-Anthem patients upon whom Dr. Newton has performed like or similar procedures, a joint request shall be made by counsel for the plaintiff and the defendant to Dr. Newton to search his files, redact patients' names and provide that information to counsel for the plaintiff and counsel for the defendant. The parties shall divide evenly whatever costs Dr. Newton charges for searching, redacting, and providing the information. Judgment Entry, Sept. 8, 1998, at 1-2. Pursuant to the trial court's order, Anthem requested the names of the twenty-plus patients, on Dr. Newton's list, who were identified as Anthem insureds. In response, Dr. Newton provided eight names. Anthem then searched its own records for documents relating to those eight alleged insureds. Following its search, Anthem concluded that only five of those eight patients were actually insured by Anthem. Dr. Newton refused the request to produce the records regarding the seventy-seven non-Anthem patients whom he had allegedly treated with intra-arterial chemotherapy. Anthem sought to exclude this evidence by filing a motion in limine and objecting to the introduction of this evidence at trial. In support of this request, Anthem argued that what other insurers do or may not do as to intra-arterial chemotherapy is irrelevant without some foundation as to the policy language, terms, conditions and circumstances under which payments were made. Second, Anthem contends that the evidence was not probative on the experimental question under the contract. Third, Anthem maintains the list was unreliable. Finally, Anthem argues that it could not test the reliability of any other information on the list because Dr. Newton and Ohio State University refused to produce even redacted information regarding the patients who were not Anthem insureds or redacted information regarding the patients whom they inaccurately identified as Anthem insureds. Anthem claims this information should have been excluded under Evid.R.401 and 403(A) as irrelevant, prejudicial and misleading to the jury. We disagree. The evidence concerning prior approvals of intra-arterial chemotherapy was relevant to rebut Anthem's argument that Dr. Newton and his nurse, Mary Ann Slivka, knew that at the time they informed the Dardingers that the denial was a "glitch", that other insurers were denying coverage for intra-arterial chemotherapy because it was experimental. As to the issue of reliability, Anthem extensively cross-examined Mary Ann Slivka concerning the list. Defense counsel obtained concessions from Ms. Slivka that she did not review the insurance policies of the other patients and that most patients had primary and not metastatic tumors. Vol. II at 109-111. Further, it is noted that the information relative to the specific patients on the list was only permitted to go to the jury once the entire policy of insurance, relative to that patient, was admitted into evidence. Also, the trial court indicated on the record, when it permitted the introduction of this evidence, that defense counsel would be given wide latitude in cross-examining Dr. Newton as to the reliability of the list. However, the record indicates that defense counsel failed to do so. D. Expert Testimony Regarding Terms of the Contract Finally, Anthem alleges that where a contract is unambiguous, it is error to allow expert testimony regarding the meaning of the contract, particularly when the testimony is proffered to contradict the plain meaning of the contract. In support of this argument, Anthem refers to the testimony of Dr. Linda Peeno. Anthem claims that Dr. Peeno testified that essentially the definition of experimental turns on the response of a particular patient and that it is the treatment of the individual patient that identifies whether a treatment is experimental or not. Anthem contends that under the terms of the policy of insurance, Mrs. Dardinger's response to the treatment did not define whether the treatment was experimental. Anthem maintains that instead, the determination as to whether intra-arterial chemotherapy is an experimental treatment must be based upon reliable evidence consisting of authoritative, medical and scientific evidence. We agree with Anthem's argument, but find that the admission of Dr. Peeno's testimony to be harmless error under Civ.R. 61. This rule provides: No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

"In short, harmless evidentiary error is not a ground for reversal or retrial." Staff Note to Evid.R. 103(A). As stated in Anthem's Third Assignment of Error, once Anthem approved three intra-arterial chemotherapy treatments for Mrs. Dardinger, it could no longer claim the treatments were experimental. Anthem's approval of the treatments either resulted in a determination that the intra-arterial treatments were not experimental or resulted in a waiver of Anthem's right to claim the exception from coverage. This is especially true when Mrs. Dardinger received positive, objective results following the treatments. Thus, under either conclusion, Anthem could no longer maintain that the intra-arterial chemotherapy treatments, with Carboplatin, were experimental as defined under the terms of the insurance policy. Therefore, Dr. Peeno's testimony explaining the term experimental, as defined in the policy of insurance, would have only been relevant had Anthem never approved one intra-arterial treatment for Mrs. Dardinger. However, Anthem's conduct of approving three intra-arterial treatments established the fact that at that time it did not consider the treatments to be experimental in Mrs. Dardinger's case. Thus, Dr. Peeno's testimony regarding the term experimental should have been excluded by the trial court. However, because the admission of this testimony did not affect Anthem's substantial rights, we find the admission of this testimony to be harmless error.

Accordingly, we sustain Anthem's Fifth Assignment of Error as it pertains to the introduction of evidence concerning the salaries of its executives. However, the remaining arguments under this assignment of error are overruled.

For the foregoing reasons, the judgment of the Court of Common Pleas, Licking County, Ohio, is hereby affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

________ Wise, J.

Edwards, J., concurs. Gwin, P.J., dissents.