dissenting.
The majority’s use of our compulsory automobile liability insurance laws as a bar to recovery of any excess coverage by victims and as a bar to excess protection by insureds is a mystery to me.
I believe that the public policy of the State of Georgia is to encourage drivers to be financially responsible by requiring certain minimum liability insurance coverage, OCGA § 33-34-4, and to further encourage drivers to protect themselves and others by obtaining more than the mere statutory minimum amounts, OCGA § 33-34-5.
As the majority notes, prior to 1963 liability insurance was purchased by the insured for the benefit and protection of his or her assets. That is no less true today than it was then. In 1963 the legislature enacted an uninsured motorist act, Ga. L. 1963, p. 588; now OCGA § 33-7-11, to encourage insured drivers to carry additional protection from the negligent uninsured. The statute states in part, “No automobile liability policy ... shall be issued or delivered in this state . . . unless it contains an endorsement or provisions undertaking to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle . . .” (Emphasis supplied.) Apparently the legislature was so intent on protecting the insured that it required any rejection of the minimum coverage to be in writing. OCGA § 33-7-11 (3). The legislature’s intention can only be seen as encouraging the already financially responsible driver to obtain additional protection.
In 1974 the legislature enacted the “no-fault” insurance act, Ga. L. 1974, p. 113; now OCGA § 33-34-1 et seq. Although the advent of compulsory motor vehicle liability insurance may have established a *344public policy of providing that “innocent persons who are injured should have an adequate recourse for the recovery of their damages. [Cit.]” Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556, 557 (307 SE2d 499) (1983), it did not change what I perceive to be the public policy of this state to encourage financially responsible drivers to protect themselves and others.
The addition of the “no-fault” law was not designed only to protect the victims, otherwise the legislature would not have stated, “Nothing in Code Sections 33-34-4 and 33-34-5 shall be construed to prohibit the issuance of policies providing coverage more extensive than the minimum coverage required by those Code sections.” OCGA § 33-34-3 (b). The legislative intent of promoting greater financial responsibility is even clearer when we look at the wording of OCGA § 33-34-5 which states in part, “Each insurer shall also make available on an optional basis the following coverage: (1) An aggregate limit of benefits payable without regard to fault up to $50,000 per person.” Insurers have a statutory obligation to oifer the optional coverage, which is well above the lowest part of our statutory minimum in OCGA § 33-34-4. The legislature very wisely has indicated a position of encouraging the financially responsible driver to be insured beyond the mere minimum coverage required. This is a policy that benefits everyone, the insured, the innocent victims, and the public.
Apparently the states of Arizona and Mississippi, as viewed through the eyes of two federal courts, do not share in the wisdom of our legislature. Both states have similar statutes. The Mississippi statute provides, “[A]ny policy which grants the coverage required for a motor vehicle liability policy may also grant lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy, and such excess or additional coverage shall not be subject to the provisions of this chapter.” Universal Underwriters Ins. Co. v. American Motorists Ins. Co., 541 FSupp. 755, 760 (1982) citing Section 63-15-43, Subsection 7 of the Mississippi Code Annotated. The federal court found that “Subsection 7 expressly exempts such excess or additional coverage from the provisions of the state’s Financial Responsibility Act.” Id. at p. 761. A similar result was reached by the other federal court based on the wording of the Arizona statute. Weekes v. Atlantic Nat. Ins. Co., 370 F2d 264, 273 (9th Cir. 1966).
Our statute is not similar to the one in Arizona or Mississippi. Our statute encourages additional coverage. Where their statutes provide that additional coverage may be granted, our statute provides that insurers shall make optional coverage available. OCGA § 33-34-5. Their statute specifically exempts excess coverage and our statute provides that nothing in §§ 33-34-4 and 33-4-5 shall be construed to prohibit excess coverage. OCGA § 33-34-3 (b). We are not bound by *345federal court’s interpretation of other state’s statutes. We interpret our own statutes, and it seems clear to me that we encourage additional coverage.
The legislature wisely enacted OCGA § 33-34-4 to provide for minimum required coverage for all drivers, it was not intended to become a barrier for those insureds who purchased additional protection, nor was it intended to become a barrier for victims who happen to be involved with an insured who had excess coverage available.
The majority stated in Division 1 that the exclusion is “unenforceable on grounds of public policy as to the deceased, . . .” Once the majority declared the exclusion unenforceable on grounds of public policy it could not legally declare that it was enforceable only up to the statutory limit. “ ‘No court can properly concern itself with the enforcement of a contract which is contrary to public policy and for that reason void, nor with the adjustment of alleged rights or equities growing out of such a contract. This doctrine is so thoroughly established and so universally recognized that it will not, we apprehend, be questioned; but it has evidently been too often overlooked by the courts in their efforts to do what they conceived to be “justice.” ’ Exchange Bank of Macon v. Loh, 104 Ga. 446, 459 (31 SE 450).” Gordon v. Gulf American Fire &c. Co., 113 Ga. App. 755, 760 (149 SE2d 725) (1966). Not only has the court concérned itself with an exclusion it found against public policy, it has found that the insured and the victim will only be allowed to rely on the lowest statutory minimum, OCGA § 33-34-4, rather than the optional coverage which was required to be offered, OCGA § 33-34-5.
2. The question before this court when the case came to us on certiorari was whether or not the exclusionary clause was void. Somehow the majority has gone beyond that question in Division 3 by turning to the “claims of the two passengers.” There was no question of “claims of the two passengers” before us.
A contract of insurance is between the insured and the insurer. Subsequent acts of either party may affect the contract, but the acts of a party not privy to the contract should have no bearing on the contract. As regards the insurance policy, there is either coverage or there is not. Once the majority decided that the exclusion was against public policy, there was coverage. Not only has the majority addressed a question that was not before us, it has confused the issue of contractual coverage and the tort concept of assumption of the risk. As cited above, this court had no business trying to involve itself with adjusting the equities involved once it found that the clause was unenforceable as against public policy.
*346Decided April 30, 1985 — Rehearing denied May 21, 1985. E. Wycliffe Orr, for appellant. C. Michael Roach, Nicholas E. Bakatsas, James D. Hogan, Jr., for appellees.