dissenting.
[¶ 32] I respectfully dissent.
[¶ 33] Section 32-23-06, N.D.C.C., clearly requires the court to “enter a declaratory judgment or decree in an action brought by or against an insurance company to determine liability of the insurance company to the insured to defend, or duty to defend, although the insured’s liability for the loss may not have been determined.” The reason for and the legislative history of the provision is discussed in Blackburn, Nickels & Smith, Inc. v. Nat’l Farmers Union Prop. & Cas. Co., 452 N.W.2d 319 (N.D.1990). The majority opinion concludes the order granting partial summary judgment was not intended to be a final order or final determination on the merits and is not appealable under N.D.C.C. § 28-27-02. But, N.D.C.C. § 32-23-01 provides:
No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect, and such declaration shall have the force and effect of a final judgment or decree. (emphasis supplied)
*792[¶ 34] The finality pronouncement in N.D.C.C. § 32-23-01, when read with the directive in N.D.C.C. § 32-23-06, are alone sufficient and, I believe, intended to make the declaratory judgment immediately appealable. If further authority for the declaratory judgment is necessary to make the judgment appealable under N.D.C.C. § 28-27-02, I agree with Justice Kapsner’s special concurrence to the extent it concludes that the declaratory judgment is appealable under subsection 2 of that statute, providing that a “final order affecting a substantial right made in special proceedings” is appealable. I cannot conclude the action taken by the Legislature in 1983 to specifically require a court to issue a declaratory judgment to determine the liability of an insurance company to the insured to defend, or duty to defend, was merely intended to require a district court to decide the issue only to have the parties face the possibility it could be overturned after a full trial and appeal to this Court. I therefore disagree with the analysis of this issue employed in the majority opinion.
[¶ 35] The trial court, as well as the majority opinion and the special concurrence, appear to assume that a declaratory judgment is a summary judgment. Although a summary judgment might be appropriately issued in a declaratory judgment action if there are no undisputed facts, summary judgments and declaratory judgments are not synonymous. Chapter 32-23, N.D.C.C., the Declaratory Judgments Act, does not prohibit the district court from taking evidence before issuing the declaratory judgment. To the contrary, N.D.C.C. § 32-23-09 specifically recognizes that when “a proceeding ... involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.” Indeed, it may be necessary to take evidence in order to resolve the issue raised under the declaratory judgment procedure. It is possible that such evidence might be some of the same evidence that would be adduced in the underlying action. Therefore, I disagree with the special concurrence that “the trial court was forced to make assumptions, based on allegations, to decide whether coverage existed because evidentiary findings had not yet been made.” Evidentiary findings could have been made before the declaratory judgment was issued.
[¶ 36] If there are issues of fact which remain to be decided before declaratory judgment on the duty to defend and the duty to indemnify can be determined, we ordinarily would reverse the summary judgment and remand for further proceedings. I therefore would not dismiss the appeal. Rather, I would hear the appeal on its merits. If we cannot decide the appeal because there are issues of fact which remain, I would reverse the order for partial summary judgment and remand it to the district court to take sufficient evidence to decide any factual issues necessary to determine whether or not Mea-dowbrook Insurance Group, Inc., and Star Insurance Company have a duty to defend and a duty to indemnify James Ziegler in the action brought against him by Dakota West Credit Union.
[¶ 37] GERALD W. VANDE WALLE, C.J., and DALE V. SANDSTROM, JJ., concur.