I respectfully dissent from the majority opinion in this case. I do not disagree with the interpretation of the statute in question, T.C.A. § 6-640, nor do I think that any modification of the opinion of the Court in the case of City of Memphis v. Roberts, 528 S.W.2d 201 (Tenn.1975), is in order.
In the Roberts case, however, the affected employee himself was demanding indemnification from the municipal corporation. At the outset of the opinion, the Court stressed that:
“Plaintiff-appellee has made demand on the City of Memphis that these judgments be paid but the city has refused to do so. The Chancellor found that plaintiff-appellee was entitled to a judgment as a matter of law and ordered the city to pay all judgments.” 528 S.W.2d at 202.
Further, in the Roberts case, the Court rejected the theory of the employee that:
“. . .a recovery may be had as soon as liability is legally imposed, i. e., when the judgment becomes final.” 528 S.W.2d at 203.
In the present case it is not the employee who has demanded indemnification or exoneration from the municipal corporation. Rather, this suit is brought by the judgment creditor of the employee in a direct action against the municipal corporation, to collect the judgment from the corporation.
I do not believé that this procedure is authorized or justified by the statute. It is the employee who is entitled to be indemnified, and, in Roberts, the Court held that he was entitled to be indemnified from liability, as well as from the actual payment of a judgment or actual loss incurred by him.
A right of indemnification is frequently a personal one, and is to be asserted by the indemnitee, not by a third party who has no such right. 41 Am.Jur.2d, Indemnity, § 41 (1968).
An insured under a contract of liability insurance is entitled to maintain an action for indemnification against his liability insurer, for failure on the part of the insurer in bad faith to settle a claim against the insured. The insured is entitled to maintain such an action, whether he has paid the judgment against him or not, since an outstanding judgment is a detriment to him. Southern Fire & Casualty Co. v. Norris, 35 Tenn.App. 657, 250 S.W.2d 785 (1952). The judgment creditor of such an insured, however, may not maintain a direct action against the insurance carrier, requiring the carrier to exonerate and thereby indemnify the insured. Dillingham v. Tri-State Insurance Co., Inc., 214 Tenn. 592, 381 S.W.2d 914 (1964); Clark v. Hartford Accident and Indemnity Co., 61 Tenn.App. 596, 457 S.W.2d 35 (1970).
The foregoing rule, with respect to claims for an excess judgment by an insured, has *147been modified somewhat by the adoption of T.C.A. §§ 20-624 et seq., insofar as the death or insolvency of the insured are concerned, but otherwise continues to be operative.
In cases such as the present, the municipal corporation involved may, of course, purchase general liability insurance to protect its employees. Otherwise, it may furnish counsel and indemnify its employees out of the public treasury, but it is clear, from the opinion of this Court in Roberts and from prior cases that the right of indemnification is a personal one to the employee. In the case of City of Chattanooga v. Harris, 223 Tenn. 51, 442 S.W.2d 602 (1969) the Court spoke of the right of indemnification as a “fringe benefit” to the employee.
In my view, the affected employee may demand indemnification from the municipal corporation, and, if a judgment against him is not paid, he may maintain a direct action against the municipality to require it to pay the judgment, as was done in Roberts. This, however, is a different concept and a different matter from permitting the judgment creditor himself to maintain such an action. If the employee does not demand indemnity, he may waive it; if he prefers, he may pay the judgment against him personally or suffer bankruptcy, rather than call upon his employer for exoneration.
In my opinion the trial judge was correct in sustaining the motion to dismiss in the present case, which is a suit brought directly against the municipal corporation by the judgment creditor. I do not find this result in any way inconsistent with Roberts, or the theory of indemnification enunciated therein.
I am authorized to state that Chief Justice COOPER joins in this dissenting opinion.