concurring specially.
I concur because the impossibility of a judgment against the uninsured motorist is created by law unrelated to the merits of the case and not through any inaction or procedural misstep of the injured party.
That is, the law prevents the condition precedent from being satisfied. In Wilkinson v. Vigilant Ins. Co., 236 Ga. 456 (224 SE2d 167) (1976), it was the discharge in bankruptcy; in this case it is the sovereign immunity of defendant. In both cases, the merits of tort liability could not be reached because of the legal bar to reaching them. It is for this reason that the law does not insist that the condition precedent be fulfilled, for to insist would clothe the insurer with the insulation afforded the tortfeasor, which insulation is not intended to shield the insurer from compliance with its contractual obligation.
*812Decided March 17, 1994 Reconsideration denied April 1, 1994 Dodd & Turner, Roger J. Dodd, for appellants. Tillman, McTier, Coleman, Talley, Newbern & Kurrie, George T. Talley, Hicks, Casey & Young, Mark A. Barber, for appellee.