dissenting.
I have no difficulty with the majority’s conclusion that State Farm was entitled to a separate determination on the question of coverage. The fact that State Farm defended Paget in the negligence action did not bar it from asserting in a separate proceeding that Paget acted outside the conduct covered by the policy. The question of coverage under the policy is different from the question of Paget’s liability to Colvin, which was determined in Colvin v. Paget, and State Farm is therefore not precluded from showing that the policy did not provide coverage for Paget’s conduct. However, the majority is absolutely wrong in concluding that State Farm was entitled to try this case for the purpose of taking evidence concerning Paget’s conduct.
The nature of Paget’s conduct was necessarily and conclusively determined by a jury in Colvin v. Paget, and State Farm is precluded from relitigating that question. In this separate proceeding to determine coverage, the only relevant evidence concerns the basis for the judgment in Colvin v. Paget. See Heider v. Commercial Ins. Co., 248 Or 564, 566, 436 P2d 268 (1968); Jarvis et ux v. Indemnity Ins. Co., 227 Or 508, 363 P2d 740 (1961); Mutual of Enumclaw Ins. Co. v. Gass, 100 Or App 424, 786 P2d 749, rev den 310 Or 70 (1990). If the evidence in this proceeding shows that the judgment in Colvin v. Paget is based on facts that bring it within the coverage of the policy, then State Farm has a duty *565to pay. If the evidence shows that the judgment in Colvin v. Paget is based on facts that exclude it from the coverage of the policy, then there is no duty to pay. Because I would conclude that the evidence shows conclusively that the judgment in Colvin v. Paget is based on covered conduct, I would uphold the trial court’s judgment for Colvin notwithstanding the jury verdict for State Farm. State Farm is obligated to pay the judgment in Colvin v. Paget, because, according to the uncon-troverted evidence in this proceeding, it is precisely the obligation that State Farm has agreed to pay under the terms of the policy.