specially concurring:
I agree with the result reached in the foregoing opinion, which is the only proper result in the posture of the case as it is received from the District Court by this Court.
What puzzles me is the fact that the insured sued his insurer in the first instance by a direct action to establish liability against the uninsured motorist. I believe all insurance companies writing uninsured motorist coverage in this state use a common form for such coverage, last amended, I believe, in 1966. Under that common form, the insured injured motorist may, after notice to his insurance company, sue the responsible uninsured motorist to determine the extent of the uninsured motorist’s legal liability, if they are not otherwise able to agree. Until the legal liability of the uninsured motorist is determined, which in turn determines the liability of the insurer, a direct action against the insurer, in my opinion, is premature.
Suit first against the uninsured motorist would be in conformance with the long-established rule in Montana that a direct action against an insurer does not lie until the liability of the insured has *161been established, Conely v. U. S. F. & G. Co. (1934), 98 Mont. 31, 37 P.2d 565, Cummings v. Reins (1910), 40 Mont. 599, 107 P. 904, and our further long-standing, rule that the injection of insurance into the action determining liability is improper. Vonault v. O’Rourke (1934), 97 Mont. 92, 33 P.2d 535.
If plaintiff here had properly sued Buckingham to determine liability in the first place, the problem of this cause would not have arisen.