(specially concurring).
Under these circumstances, it is far better to decide this case through declaratory judgment, prior to trial of the underlying lawsuit.
Since it appears clear that Arthur broke Patricia’s arm, it follows that he will be liable for the damages, either negligently or intentionally.
If intentional, Arthur pays. If negligent, North Star pays. Since the only real issue is whether Arthur or North Star pays, declaratory judgment can resolve the real issue and eliminate the complicated conflict of interest question that North Star would otherwise face in the underlying lawsuit. It would not be fair to force North Star into a complicated conflict of interest position against its insured (Arthur) in the underlying lawsuit when it can so easily be avoided beforehand. See generally, Carver v. Heikkila, 465 N.W.2d 183 (S.D.1991) (for benefits of declaratory judgment action).