concurring
Although I agree with the judgment of the majority, I arrive there by separate course.
The original, unamended complaint in the declaratory judgment action claimed that the victim alleged that the (insured) intentionally injured him.
When the tort claim was amended to delete a claim of intentional tort, this case, in its extant pleading posture, lost it raison d'etre. I would rule that the second assignment of error should be sustained, and the cause proceed as amended. The duty to defend/indemnify dilemma.
The whole area of when and how to determine duty to defend deserves reexamination. As a practical matter, when the insurance company decides it has no duty to defend, and adversary relationship with the insured is established. Whether that claim is ultimately supported must await another day under either the circumstance where (1) an independent declaratory judgment action is filed, or (2) the issue is determined in *130the primary tort casa The expectation that declaratory judgment action is a fast, effective way to clear the decks for the trial of the action is not realized in fact. What happens is the whole process is delayed and the bifurcated process, with intervening appeals, delays rather than expedites the procesa
Consideration should be given to whether the interests of everyone would be better served by litigating the coverage issues in the same case as the tort claim. The coverage issues could be first litigated and even separate juries impaneled if necessary to decide issues like that encompassed in the case sub judice (intentional tort). All of the actors in the tort case, plus the insurance carriers, would be present. Surely the trial court could keep the issues of coverage from the tortjury.