(dissenting).
Plaintiffs, while covered by an insurance policy written by Allstate, were involved in a collision with an uninsured motorist. They sued the uninsured motorist and joined Allstate as a defendant under a provision of the policy which provided that they could recover from Allstate such sums as they would be legally entitled to recover as damages from the owner or operator of an uninsured automobile.
On motion made by Allstate, the trial court dismissed the complaint on the grounds that there was a misjoinder of remedies and also an improper joinder .of parties.
As to the improper joinder of parties, it is settled law in Utah that an insured can sue his insurer directly under the uninsured motorist provisions of his policy. Barnhart v. Civil Service Employees Insurance Co., 16 Utah 2d 223, 398 P.2d 873 (1965). Other states holding the same way are listed in Section 4 of an annotation appearing in 24 A.L.R.3d at page 1334.
It may well be that the naming of an insurance company as a party defendant will have some effect on a jury, and for that reason insurance companies do not want a third party to join the insurer as a party defendant. Besides, in such a case the contract of insurance is with the insured and not with the one bringing the action. The insurance company in issuing its policy agrees to pay third parties up to the limits of its policy but only after a judgment is recovered against its own insured. Utah does not permit a joinder in such cases. Young v. Barney, 20 Utah 2d 108, 433 P.2d 846 (1967).
Allstate seeks refuge from the claim of the plaintiffs herein under Condition No. 4, page 16, of its policy, which reads:
No action shall lie against Allstate until after full compliance with all the *415terms of this policy nor, as respects insurance afforded under Section I, until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and Allstate.
Any person or organization or the legal representative thereof having secured such judgment or written agreement, shall he entitled to recover under this policy to the extent of the insurance afforded, but this policy shall not give any right to join Allstate in any action to determine the insured’s liability, nor shall Allstate be impleaded by the insured or his legal representative. * * *
It is apparent from reading this Condition that it does not apply to the uninsured motorist provision of the policy, for those provisions are to be found in Section II and not in Section I. Section I applies to third parties who sue the insured and attempt to join the insurer. It is an entirely different matter when the insured sues his own insurer on the contract between themselves.
Since Allstate can be sued directly by the plaintiffs, why cannot it be joined with the uninsured tort-feasor? The trial court apparently thought that an action on contract could not he joined with one in tort. This is true under common law pleadings, and in Young v. Barney, supra, it was said:
* * * [I]t is generally held that it is not proper to join an action such as the primary one here, which is based on negligence, and therefore in tort, with one like the claimed supplemental action, which would be in contract, and thus based upon a claim of an entirely different character.
However, Rule 20(a), Utah Rules of Civil Procedure, provides as follows:
* * * All persons may be joined in one action as defendants if there is asserted against them jointly, severally, or in the alternative, any right to relief in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of them will arise in the action * * *.
The occurrence which gives the plaintiffs a right of action against both the uninsured motorist and Allstate is the claim of a right to recover from the tort-feasor. This is as true against Allstate as it is against the uninsured motorist. While it is true the action against Allstate is based upon contract, nevertheless, the liability of Allstate will not be established unless there is also established a legal right to recover from the uninsured driver.
*416This need not be established in a prior action if there is a question of fact or law common to the claim against each of the defendants. It seems clear to me that such common questions are involved in this action.
A further reason for holding that plaintiffs be not required to sue the tort-feasor and have liability determined before an action can be maintained against Allstate is pointed up in those cases where jurisdiction of the uninsured motorist cannot be obtained. Examples are: hit and run drivers; drivers who give false and fictitious names and addresses and cannot thereafter be located; citizens of this state who leave the jurisdiction before process can be served upon them; etc. In such cases the insured cannot have a determination of his right to recover unless he can establish that right in an original suit against his own insurer.
While the matter was not raised in Russell v. Paulson, 18 Utah 2d 157, 417 P.2d 658 (1966), the plaintiff sued both her own insurer and the uninsured driver in one action.
Since there was neither an improper joinder of parties nor a misjoinder of remedies in this case, I would remand the matter to the trial court with directions to reinstate Allstate as a party defendant and would award costs to the appellants.