dissenting.
I agree with much of the court’s opinion but not with its application in this case.
The precise question before the court is whether a plaintiff who has been awarded both compensatory and punitive damages for injuries caused by a reckless and intoxicated driver may not collect the punitive damages under the driver’s liability insurance contract with defendant, because insurance coverage for such an award would violate a public policy.1
Justice Holman’s opinion asserts, and the majority denies, that such a public policy is necessarily implied in the grounds for awarding punitive damages in the first place. Thus, if there is a public policy forbidding recovery under the insurance contract in this case, it is at best a court-made policy derivative from and in aid of the court’s premise for the underlying award of punitive damages. The answer, in my view, should not be treated as general doctrine for the insurability of all "punitive” or similar claims beyond straight compensation.
A court-made public policy against otherwise lawful liability insurance can be defended, not because the purpose of punitive damages is always deterrence and because insurance will always destroy their deterrent effect, but only when these considerations apply. Neither premise is true in all cases. The court’s frequent statements that punitive damages are meant to deter are true of any sanction in the sense that society would prefer avoidance of the harmful conduct and hopes the sanction will discourage it. A leading *232student of punitive damages long ago pointed out that compensatory damages based on fault similarly rest on deterrence of harmful conduct; yet arguments against liability insurance on that ground were long since rejected.2 But aside from deterrence, statutory or common law measures of recovery beyond actual compensation may be designed to make a private suit worthwhile where individual damages are small or difficult to prove, or to channel plaintiffs anger from retaliation into a court when the tort is to his dignity more than to his pocketbook, or they may simply reflect social outrage apart from any remedial purpose.3
In turn, a public policy governing insurance against such liability may be derived from state or federal legislation, see Dairyland County Ins. Co. v. Wallgren, 477 SW2d 341 (Tex Civ App 1972),4 or implied from the legislative or judicial premise of the underlying liability itself. Where that premise is simply outrage at willful misconduct, liability for punitive damages will be uninsurable on the same principle as liability for a criminal fine. Cf., Isenhart v. General Casualty *233Co., 233 Or 49, 377 P2d 26 (1962).5 If statutory recovery beyond compensation aims at letting private plaintiffs with small claims hold defendants to socially responsible conduct, a derivative public policy against insurance is not so easily implied. Deterrence as an aim of punitive damages is most plausible when addressed to a deliberate, repeated or continuous course of conduct, for instance when it is profitable to take the risk of occasional liability for the actual damages done to others, see, e.g., McElwain v. Georgia-Pacific Corp., 245 Or 247, 421 P2d 957 (1966), Cf., Kinzua Lumber Co. v. Daggett, 203 Or 585, 281 P2d 221 (1955), or when a defendant is prepared for a noneconomic purpose to pay the economic cost of an injury he imposes on another, such as cutting a neighbor’s trees to gain a view, Fisher v. Carlin, 219 Or 159, 346 P2d 641 (1959). Even then, the deterrent effect on an enterprise may not in fact be much different whether the enterprise negotiates an insurance premium for the contingency of punitive damages or must provide for that contingency itself. In a case of unanticipated or nonrecurring liability the effect may be quite different. Of course, it is not always possible to match a rule precisely to its reason; a line must be broad enough to be visible to courts and *234counsel. Where the threat of overcompensating damages is addressed squarely to deterring the cionduct charged to a defendant, it will often be reasonable, in the absence of other policy sources, to imply that the potential defendant is not to insure against the deterrent.
The difficulty when we turn to the present 'case is that punitive damages for reckless driving while drunk are rather implausibly explained as a deterrent. A defendant who has not been deterred by the sanctions of criminal punishment, loss of license and risk of death or serious injury to himself and others, is not likely to be deterred by the probably unknown fact that his insurance policy will not cover the equally unfamiliar assessment of punitive damages,6 and as a lesson "not to do it again,” this is too random and destructive a stroke to the average family’s resources compared with, for instance, stricter enforcement of license revocation laws. If the matter were open, I would not ground punitive damages in this kind of case on a theory of deterrence.
But the matter is not open. The punitive damages involved here were awarded by a jury under express instructions to set them at the amount required as a deterrent, and this court affirmed on that premise, Harrell v. Ames, 265 Or 183, 508 P2d 211, 65 ALR3d 649 (1973), as is set forth in Justice Holman’s dissent in the present case. That decision fixes the premise of punitive damages for this case, whether or not one shares it; and given the premise, recovery from the liability insurer is an anomaly. It is not easy to speculate what amount of damages, when recoverable under an automobile liability insurance policy, "would be required to discourage the defendant and others from engaging in such conduct in the future.”
*235For this reason, I dissent from the disposition of this case.
I agree with the court that if coverage of punitive damages is legally proper, the insurance policy contained nothing to put a purchaser on notice that such damages were excluded.
N. Morris, Rough Justice and Some Utopian Ideas, 24 Ill L Rev 730 (1930) ; Morris, Punitive Damages in Tort Cases, 44 Harv L Rev 1173 (1931) ; see Appleman, Insurance Law and Practice, § 452. Professor Morris also called for more empirical evidence on the circumstances under which punitive damages do or do not serve as an added deterrent beyond ordinary civil or criminal liability, 44 Harv L Rev supra at 1206, but nearly a half century later such judgments still reflect a search for a rational premise more than confidence in its realism. :
To say that a social purpose, e.g., deterrence, is the only justification for a sanction is not to say that it is its only explanation, as the long-standing debates over the scope and purposes of criminal punishment show. ¡
If a legislative policy toward the contract or the claim at issue can be discerned in some relevant enactment or regulation, it will be the governing "public policy.” Wheeler v. O’Connell, 9 NE2d 544 (Mass 1937); Hartford Acc. & Ind. Co. v. Wolbarst, 57 A2d 151 (NH 1948); compare, United States v. Atlantic Mutual Ins. Co., 343 US 236, 72 dS Ct 666; 96 L Ed 907 (1951). But a search of relevant Oregon statutes and regulations reveals no policy pertinent to insurance coverage for the punitive damages in this case.
Justice O’Connell’s explanation in Isenhart, though addressed to an intentional tort, is pertinent to the public policy issue in this case:
"A contract to indemnify the insured for damages he is forced to pay as a result of an intentionally inflicted injury upon another should not be regarded as contrary to public polity unless the fact of insurance coverage can be related in some substantial way to the commission of wrongful acts of that character. Plaintiff contends that a person’s decision as to whether he will intentionally inflict an injury upon another will not ordinarily turn upon the existence or non-existence of insurance covering the insured’s loss resulting from an action brought against him for such conduct. Generally this is probably true, although depriving insured of coverage for intentionally inflicted injuries might have such a deterring effect in some cases. However, punishment rather than deterrence is the real basis upon which coverage should be excluded. A person should suffer the financial consequences flowing from his intentional conduct and should not be reimbursed for his loss, even though he bargains for it in the form of a contract of insurance. * * *” Isenhart v. General Casualty Co., 233 Or 49, 52-53, 377 P2d 26 (1962).
One review of the available information concluded that the role of civil liability in deterrence is "much discussed but little understood.” Cramton, Driver Behavior and Legal Sanctions: A Study of Deterrence, 67 Mich L Rev 421, 445 (1969).