concurring specially.
1. In this case, the insured’s assignee, who provided health care, sued to enforce his right to proceeds of the insured’s coverage. In Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79 (380 SE2d 751) (1989), the insured sued to enforce both his and the assignee/providers’ recovery of the proceeds. In both cases the contract itself was not assigned, only the benefits due after the loss occurred, so that the assignments did not affect the risk insured by the policies. In both cases the insurer attempted to avoid payment of the proceeds on the ground that the party suing under the policy was not authorized to do so in its own name because of the assignments. Both cases reached the same result, i.e., allowing the plaintiffs to bring suit in their own names and directly recover the insurance benefits.
*483Decided June 28, 1990 Rehearing denied July 20, 1990 — Cert, applied for. Glenville Haldi, for appellant. Crim & Bassler, Harry W. Bassler, Philip G. Pompilio, for appellee. Leon Van Gelderen, James D. Hollingsworth, Jason T. Schneider, amici curiae.Davenport allowed the action to be maintained by the insured, who had assigned some of the benefits under the policy to the health care provider, for the “use” of the assignee under the authority of Reserve Life Ins. Co. v. Peavy, 94 Ga. App. 31 (93 SE2d 580) (1956), which was governed by former Code Ann. § 81-1307. This decision permits the assignee/provider to sue in his own name for the benefits due as the real party in interest under OCGA § 9-11-17 (a), noting that the latter provision repealed the former. Since the “use” theory relied upon in Peavy was derived from the repealed statute, that portion of the quote in Division 6 of Davenport from Peavy indicating by dicta that only the insured could sue is properly disapproved. However, the result reached was not inconsistent with the holding in this case.
2. I cannot adopt as the law of Georgia the entire statement quoted from CJS, insofar as it equates an assignment of the policy with an assignment of the claim for loss. The two are distinct and different. Davenport and Santiago both involve only assignments of the right to benefits, that is the claim, not the policy contract itself.
I am authorized to state that Presiding Judge Deen, Presiding Judge Banke, and Judge Birdsong join in this special concurrence.