
    Edward J. FUQUA, et ux, v. AETNA CASUALTY & SURETY COMPANY, et al.
    No. 89-C-1410.
    Supreme Court of Louisiana.
    Sept. 22, 1989.
   LEMMON, Justice, concurs.

In McDill v. Utica Mutual Insurance Co., 475 So.2d 1085 (La.1985), this Court recognized the obligation of an uninsured motorist insurer, in cases of indisputable liability, to make a good faith unconditional tender in an amount over which reasonable minds could not differ or be subject to penalties and attorney’s fees for arbitrary failure to do so. The court of appeal, although observing that the $617,000 judgment might be somewhat high, nevertheless assessed a twelve percent penalty on the full amount of the judgment. In my view the court of appeal, for purposes of the penalty, should have determined the lowest reasonable amount over which reasonable minds could not differ and then assessed the penalty only on that amount.

MARCUS, J., concurs for reasons assigned by LEMMON, J.  