dissenting.
I join in the dissent of the Chief Justice. I write only to summarize what I believe is the basic controversy and some of the reasons supporting the dissent.
Both the majority and the dissent assume for the purposes of their legal differences that Sevier and Henderson colluded. I probably would not so find on a de novo hearing but I will make that same assumption in order to take a position in the principal controversy.
I join the dissent because of what I believe are the logical implications, of the majority opinion which I am unwilling to accept.
The majority holds that an injured third party can recover against the liability insurer although the insurer has no duty to the insured under its insurance contract. Previously we have always held to the contrary. For examples, Allegretto v. Ore. Auto Ins. Co., 140 Or 538, 544, 13 P2d 647 (1932); Bonney v. Jones, 249 Or 578, 580, 439 P2d 881 (1968).
*311The majority is of the opinion that the principal reason why an injured third party should be permitted to recover is because of a strong state public policy to protect victims of vehicle accidents.
In State Farm Ins. v. Farmers Ins. Exch., 238 Or 285, 387 P2d 825, 393 P2d 768 (1964) and Bailey v. Universal Underwriters Ins., 258 Or 201, 474 P2d 746, 482 P2d 158 (1971) we expressed this policy. In those cases however, we did not hold the injured third party could recover on an insurance policy although the insurer owed no duty of indemnity to its insured.
This same public policy just as logically can be invoked to hold that an injured third party can recover although the insurer owes no duty of indemnity to the insured because the insured has faded to perform any of the expressed or implied duties the insured has in a liabdity insurance contract. Included in these are such duties as giving notice of an accident, cooperating in the defense, etc.
The legislatures of Oregon and other states have enacted legislation depriving insurers of certain policy defenses when insurers issue policies as proof of financial responsibility. The legislatures expressly exempted other insurance policies from this legislation. ORS 486.551; 40 Or L. Rev. 351 (1961). The rationale behind such legislation probably is that financially irresponsible drivers who have to furnish proof of financial responsibility after an accident, as a class, probably are apt to fail to perform obligations assumed by them in their insurance contract. Apparently the legislatures believed that other classes of drivers were not apt to be so irresponsible. I have no knowledge that the legislative belief was not well founded and the distinction between these classes continues to exist.
Another facet in the present case evidences that *312it is not vital for the protection of traffic victims that we judicially change the contract law of Oregon. All contracts of liability insurance are required to provide uninsured motorist coverage in order to protect parties injured by tortfeasors having no insurance. ORS 743.-786 and following. The defendant Mutual of Enumclaw Insurance Company provided such coverage to the Suttons. A portion of this litigation is not to recover damages for a traffic victim but to determine if State Farm or Mutual of Enumclaw is to bear the loss.