(specially concurring).
American Family seeks to impose a condition precedent, namely that it did not receive a copy of a Summons and Complaint.
Where an insurance company denies liability because it believes its insured to be at fault rather than the uninsured motorist, a condition precedent (receiving a copy of a Summons and Complaint) is inapplicable. Childs v. Allstate Ins. Co., 237 S.C. 455, 117 S.E.2d 867 (1961). Accord: Stephens v. State Farm Mutual Automobile Ins. Co., 508 F.2d 1363, 1366 (5th Cir.1975), wherein the rationale was as follows:
The rationale behind holding to this particular waiver theory is that a claimant should not be required to approach his insurer, hat in hand, and request consent to settle [or sue] with another when he has already been told, in essence, that the insurer is not concerned, and he is to go his way. It is difficult to see why an insurer should be allowed, on the one hand, to deny liability and thus, in the eyes of the insured, breach his contract and, at the same time, on the other hand, be allowed to insist that the insured hon- or all his contractual commitments.
Amen, Brother. I agree. An insurance company cannot cavalierly disclaim liability on an uninsured motorist policy and then claim immunity from a later judgment obtained by its abandoned insured. See also, Aristonico Infante v. Preferred Risk Mut. Ins. Co., 364 So.2d 874 (Fla.App.1978); Shook v. Hertz Corp., 349 A.2d 874 (Del.Super.Ct.1975).
Therefore, although the jury and trial court concluded that (1) notice was required and (2) notice was given, my legal posture is different, i.e., American Family was not entitled to any notice. American Family abandoned its insured. My philosophical funny bone is theoretically amused when I note that American Family’s first reaction, upon learning of Kremer’s suit against Schmidt, was to become concerned *773over its own subrogation rights (and, you see, there is nothing to subrogate if Kremer was contributorily negligent). Rather than to set about its contractual obligations, it became acutely apprehensive of its corporate coffer, leaving Kremer to fend for herself. In point of fact, American Family, from the inception of this scenario, knew that Gary Schmidt was an uninsured motorist. Knowing this, it rejected Kremer’s claim under the policy.
CHRONOLOGY
• February 13, 1986, accident takes place; Kremer had a provision in her policy for uninsured motorist coverage.
• February 15, 1986, American Family’s agent, Kendall, prepared a telephone loss report reflecting Schmidt had no liability automobile insurance at the time of accident. Kendall filed a loss report with his company.
• March 5, 1986, Kremer was interviewed by a claims agent of American Family.
• American Family neglected its policy obligations. Finally — on
• February 8, 1989, worried and disgusted, Kremer called the company complaining. She expressed her concern over the three year statute of limitations running and wanted to obtain a settlement on her uninsured motorist claim.
• February 8, 1989, Carlson informed Kremer: “It was our feeling we would not honor an uninsured motorist’s claim.” Kremer advised Carlson that she had only 5 days left and she was contacting an attorney.
• February 13, 1989, Kremer filed suit against Schmidt.
• June 28, 1990, Attorney Brad Gordon contacted the Kendall Insurance Agency informing said agency that Kremer was suing the uninsured motorist.
• In July, August, September and the first half of October, 1990, insurance company, like an ostrich, stuck its head in the sand and did nothing.
♦ October 16, 1990, Attorney Gordon again contacted American Family’s adjuster in Sioux Falls, South Dakota, to secure a breakdown of medical bills. Adjuster furnished same.
♦ November 14, 1990, same adjuster called Gordon to find out what was going on with the lawsuit. Attorney Gordon told her.
Insurance company refused to protect its insured and it neglected to protect itself. When an insurance company, such as the one here, repudiates its liability, it has breached the policy and releases the insured from a condition precedent (notification). Thus, the 29 cent stamp dissent on a letter is ill-founded. See Vanguard Ins. Co. v. Polchlopek, 18 N.Y.2d 376, 275 N.Y.S.2d 515, 222 N.E.2d 383 (1966).
Under the circumstances of this case, the “29 cent stamp” dissent is basically flawed in fact and in law. For the writer of said dissent to charge attorneys Fuller and Gordon with concealment and deception is extremely unfair. Both of these lawyers are highly principled men, one a recent law clerk who ably served this Court — the other being the Chairman of the Judicial Qualifications Commission, a state Constitutional body. These men are the messengers and the dissent tries to shoot the messengers. They were the legal messengers of Kremer who had a contract with, and a legitimate beef against, an insurance company which, in effect, told their policyholder to go jump in the lake. Fuller and Gordon are not the culprits in this legal scenario; the insurance company, which took the insurance premium and would not honor its legal obligation, is the culprit. A stamp would have told American Family only what it knew already and spawned: Litigation.