concurring in part and dissenting in part.
Because I believe the release agreement violated public policy to the extent that it provided that State Farm would not be bound by any judgment against Davis, I would affirm the trial court’s grant of summary judgment to Terry and its denial of summary judgment to State Farm.
1. “The following general principles apply to an interpretation of [the uninsured motorist] statute: The purpose of uninsured motorist legislation is to require some provision for first-party insurance coverage To facilitate indemnification for injuries to a person who is legally entitled to recover damages from an uninsured motorist, and thereby to protect innocent victims from the negligence of irresponsible drivers.’ Uninsured motorist statutes are remedial in nature and must be broadly construed to accomplish the legislative purpose.” (Citation omitted.) Smith v. Commercial Union Assurance Co., 246 Ga. 50, 51 (268 SE2d 632) (1980). We have held that “any policy provision which attempts to contravene the clear intent of the Uninsured Motorists’ Act is void and not enforceable.” State Farm Mut. Auto. Ins. Co. v. Harper, 125 Ga. App. 696, 698 (188 SE2d 813) (1972).
The uninsured motorist statute evinces a clear public policy that an insured need only obtain a judgment against an uninsured motorist to trigger liability on the part of the uninsured motorist carrier. Indeed, OCGA § 33-7-11 (g) expressly provides that “[nothing] may ... be required of the insured, subject to the other provisions of the policy or contract, except the establishment of legal liability.” “The phrase legal liability’ in the statute means exactly what transpired here, viz., the securing of a judgment against the uninsured motorist.” Continental Ins. Co. v. Echols, 145 Ga. App. 112, 113 (243 SE2d 88) (1978). To the extent that the dismissal agreement provides that the judgment against Davis is not binding upon State Farm, and purports to require Terry to relitigate the issue of Davis’ liability, it directly contradicts the statute’s proscription against requiring anything other than the securing of a judgment against the tortfeasor. Accordingly, the agreement violates clearly expressed public policy and cannot be enforced.
This policy of requiring the tortfeasor’s legal liability to be established in a single action is also reflected in other parts of the statute. Under OCGA § 33-7-11 (d), the plaintiff must serve his uninsured motorist carrier with a copy of the complaint and all pleadings as if it were a defendant in the action, in order to protect any uninsured motorist claim which he then has or may have in the future. The carrier has an absolute right to participate in the proceeding, either in *25its own name or in the name of the uninsured motorist. Id. Although a carrier may elect not to participate in the proceeding, it does so with the statutory knowledge that adjudications as to the tortfeasor’s liability will be binding upon the carrier in a subsequent action for uninsured motorist benefits. Echols, supra. When these facts are considered in conjunction with the statute’s prohibition against requiring anything “except the establishment of legal liability,” OCGA § 33-7-11, it is clear that the agreement in this case is violative of public policy to the extent that it negates the effect of the judgment against Davis for uninsured motorist insurance purposes.
The approach taken by the majority — allowing Terry to recover from State Farm if he can show at a second trial that Davis was liable for the accident — is not satisfactory. “A judgment obtained against the uninsured motorist is a condition precedent to recovery against an automobile liability carrier under the provisions of uninsured motorist coverage.” (Emphasis supplied.) Echols, supra at 113. If the majority is correct that the dismissal agreement is an enforceable contract, then the judgment obtained against Davis in the underlying tort action is not binding upon and does not create any exposure for State Farm. Thus, such judgment cannot constitute the necessary condition precedent to State Farm’s liability. The majority attempts to solve this problem by mandating a second trial, between Terry and State Farm (but not Davis), at which Terry must convince a jury that the original decision was correct. However, this second trial cannot result in a judgment against the tortfeasor, who would not be a party thereto. Thus, we would be left with a situation in which the original judgment against Davis cannot be used to create any liability for State Farm, and the second adjudication cannot satisfy the condition precedent to State Farm’s liability under the uninsured motorist coverage (i.e., a judgment against the tortfeasor).
For the above reasons, I must respectfully dissent as to the reversal of the grant of summary judgment to Terry. Because Terry was entitled to summary judgment, I concur specially with the majority’s conclusion that the trial court properly denied summary judgment to State Farm.