(dissenting.) I find it very challenging but difficult to write a dissent in this case. What started out as a case simply involving the trial court’s application of declaratory judgment law has developed through this majority opinion to overthrowing a rule of law regarding declaratory judgment which was decided by this court in 1932 and applied by this court numerous times since and a misapplication of excess carrier rights. The court now hypothesizes that the 1932 court “went too far in its requirement that all adjudicatory facts be resolved as a prerequisite to a declaration of rights.” (Supra, at 413.) The rule that is expressly overruled, however, does not seem related to the previous statement. It is:
*432“[T]he declaratory relief statute [only justifies] a declaration of rights upon an existing state of facts, not one upon a state of facts that may or may not arise in the future.” Heller v. Shapiro, 208 Wis. 310, 313, 242 N.W. 174 (1932).
This quoted statement does not provide a foundation for the majority’s fear that Heller required all adjudicatory facts be resolved for a valid declaratory judgment to be rendered. Heller did not, in the quoted portion which is being reversed, speak to the completion of all issues in the case, but instead, held that a declaratory judgment was limited to facts existing at the time of the application for it, rather than relying upon hypothesis as to which might happen. If the law is altered to call upon judges to declare rights based on non-existing, imagined or hypothesized facts, the age-old basis for determining issues on the basis of established facts will be lost. Even in applications for injunctions where the trial judge must predict the likelihood of success of the applicant’s action in determining the issuance, that prediction is based on known, existing facts. I would not reverse the Heller language; it should remain applicable, since it makes it clear that trial courts should not offer advisory opinions, no matter how sorely tempted.
This court’s interpretation of the text Borchard, Declaratory Judgments (1941), in State ex rel. La Follette v. Dammann, 220 Wis. 17, 22, 264 N.W. 627 (1936), is found to have been in error only by the majority’s unduly fragmenting the single rule or standard of Borchard. According to the majority, all that Borchard requires is “justiciability,” as Borchard defines it. The court now holds that the change in the law in Wisconsin regarding declaratory judgments is brought about due to a possible printer’s error in the La Follette case caused by a misplaced colon.
As previously noted, the majority holds that all that is required for a court to be properly asked for a declara*433tory judgment is “justiciability.” Lister v. Board of Regents, 72 Wis. 2d 282, 240 N.W.2d 610 (1976), however, interpreted Borchard the same as State ex rel. La Follette v. Dammann, supra, and merely placed the “colon” properly. Lister listed the same four elements as the La Follette case necessary for a controversy to be a proper subject for declaratory relief: (1) Involves a claim of right on the part of the plaintiff which is asserted against one who has an interest in contesting it; (2) is between two persons whose interests are adverse; (3) involves a legally protectible interest in the person seeking declaratory relief; and (4) is ripe for judicial determination.
The majority cites the case of Lister v. Board of Regents, supra, at 307, as follows:
“The underlying philosophy of the Uniform Declaratory Judgments Act is to enable controversies of a jus-ticiable nature to be brought before the courts for settlement and determination prior to the time that a wrong has been threatened or committed. The purpose is facilitated by authorizing a court to take jurisdiction at a point earlier in time than it would do under ordinary remedial rules and procedures. As such, the Act provides a remedy which is primarily anticipatory or preventative in nature.”
Though that is good law, it is not applicable to this case. The wrong that was sought to be prevented in Lister was the position taken by the university that the plaintiff’s students were nonresidents for tuition purposes. In the instant case, there was no wrong sought to be prevented; rather the wrong involved was the negligence which earlier caused the death of Mrs. Loy and which was not preventable.
In addition to the material cited by the majority from Borchard, Declaratory Judgments, that text also states:
“In general, it may be said that the facts on which a legal decision is demanded must have accrued, for the *434principle of a declaratory judgment is that it declares the existing law on an existing state of facts. The danger or dilemma of the plaintiff must be present, not contingent on the happening of hypothetical future events —although it may involve future benefits or disadvantages — and the prejudice to his position must be actual and genuine and not merely possible or remote.” Id. at 56.
Borchard between pages 26-57 does state: “Justicia-bility is the necessary condition of judicial relief.” Id. at 33. However, the same section of the text also states: “What, then, are the ‘necessary features’ of justiciability?” Id. at 33-34. The author then lists the necessary features of justiciability as adverse interest, actual controversy, legal interest and ripeness of issue.
Nowhere does Borchard set out the elements of jus-ticiability in the form cited in State ex rel. La Follette v. Dammann, supra, and as quoted from that case that has been criticized in the majority opinion.
In any given case, the court must determine whether the facts are sufficiently developed to permit a conclusive adjudication or whether they are so contingent and uncertain as to justify a refusal to render a decision. Borchard, supra, at 26-57.
The majority uses convoluted and inverted reasoning when it states: “If the controversy is ‘justiciable,’ by definition it has all the characteristics set forth in the paragraph above.” {Supra, at 410.) That is putting the proverbial cart before the horse, since the elements described by Borchard must be present to determine jus-ticiability.
The majority also states that Borchard defines a jus-ticiable controversy as one ripe for determination. However, Borchard requires as an element in determining justiciability that the controversy must be ripe for determination. It is not rational to say that a controversy *435is justiciable and, therefore, has all of the necessary elements, but rather it must have all of the elements present for a court to determine that it is justiciable.
Some writers have stated that: “‘Justiciability’ is a concept of uncertain meaning and scope.” 23A Words and Phrases, (1981 Pocket Part).
1 Anderson, Actions for Declaratory Judgments, sec. 9, (1951) states:
“The adjudicated cases are without dissent in holding that in order for the courts to entertain an action for declaratory relief, there must be a justiciable controversy; sometimes this is referred to as actual, real or bona fide controversy.” Id. at 38.
“To state a cause of action for declaratory relief, it is necessary to state facts from which the court can see that a valid present controversy is presented. . . .
“The apprehended risk of an applicant for declaratory relief must not exist in the future and rest upon some future or hypothetical contingency that may occur or may not. . . .
“The rule with respect to the necessity for a justiciable controversy may be stated in the vernacular in this wise: The Uniform Declaratory Judgment Act does not license litigants to fish in judicial ponds for legal advice.” Id. at 46-47.
“A Declaratory Judgment Statute cannot be so construed as to authorize the courts to deliver advisory opinions or pronounce judgments on abstract questions, but there must be the invariable justiciable controversy present in such cases.” Id. at 50.
“A mere advisory opinion upon an abstract question is obviously not a judgment at all when no parties are to be bound, and the rights of no one are directly affected.” Id. at 55.
As a demonstration of the advisory nature of the opinion in this case, the following is language of plaintiff’s attorney and the attorney for General Casualty at the hearing:
*436“[General Casualty has] offered to pay it, if the plaintiff can get Court approval, for a particular kind of release. . . .
“And if indeed we get Court approval for this settlement, that’s a condition General Casualty imposed upon entering into the settlement. . . .
“[T] hat’s exactly why we have made as a condition of settlement we told Mr. Rosenberg you want twenty for everything or twenty and you get Court approval. That’s why we are seeking Court approval. . . .
“And I don’t think it’s bad faith for General Casualty to seek Court advice before entering into any settlement before that’s done.” (Emphasis added.)
It’s obvious that absent the court’s favorable ruling, General Casualty would not have bound itself to the settlement agreement.
The court of appeals discerned the nature of the motion brought by plaintiff when that court stated:
“If plaintiff were to have received an adverse decision regarding the effect of the proposed release, nothing prevented him from returning to the court as often as necessary to devise a release satisfactory to him. Courts should not act in a mere advisory capacity.” Loy v. Bunderson, 101 Wis. 2d 215, 222, 304 N.W.2d 140 (Ct. App. 1981).
The majority concedes it was a proposed settlement in its statement: “The parties to the proposed settlement moved for a declaration of rights permitting the parties to the proposed ‘special release’ to settle and asked that the court declare that, . . .” {Supra, at 406.) (Emphasis added.)
The majority cited sec. 805.04(2), Stats., which is irrelevant to the issue in this case, because no permission of the court was needed to dismiss the action against Ralph Truesdill or to enter into a settlement and release.
*437McCleary v. State, 49 Wis. 2d 263, 182 N.W.2d 512 (1971), was improperly relied upon by the majority. If the motion before the court in this case was not justiciable, then the court had no discretion to render an advisory opinion. McCleary involved an abuse of discretion by the trial court in imposing sentence in a criminal case.
I disagree with the majority that the settlement which included the rights of all parties except Travelers was a subject “ripe for judicial determination.” If the decision of the trial court had been that Travelers’ position on excess coverage was correct rather than General Casualty’s, it would be ludicrous to presume that Truesdill, Chambers & Owen and General Casualty would have been bound by that opinion and would have been required to sign releases accordingly. It cannot be any reasonable person’s opinion that the parties would have been bound to a negative holding with respect to their positions. The releases had not been signed, and, therefore, the court merely gave an advisory opinion which in this case favored and was therefore acceptable to the proponents, Truesdill, General Casualty and Chambers & Owen. For that reason alone, they complied with the opinion by subsequently signing the release. The only party negatively affected by the trial court’s decision was Travelers, which was the only party opposing the proposed nonbinding settlement. The decision did not affect existing “legal relations” as required by Borchard; it merely told the parties what their proposed action would mean, and thus, it must properly be characterized as an advisory opinion.
It follows that declaratory judgment was not appropriate, and an advisory opinion was given contrary to established law.
It is difficult to tell how the majority reverses the court of appeals and sustains the trial court, since at the trial court, the parties agreed that Travelers was an *438excess carrier as opposed to the primary carrier, General Casualty, and the trial court treated Travelers accordingly. The majority opinion, however, first finds that Travelers was not an excess carrier and then proceeds to analyze Travelers’ rights, duties and obligations as an excess carrier. At various points in the decision, the majority finds:
(1) Travelers’ policy read under its terms that the coverage afforded was as “excess insurance over any other valid and collectible insurance available to the Insured.” {Supra,, at 402.)
(2) “It is only because of the recital in the Travelers’ policy that its coverage is claimed to be excess over the limits afforded by the General Casualty policy.” {Supra, at 404.)
(3) “In the absence of General Casualty’s policy, Travelers’ coverage would commence at ‘dollar-one.’ It is clear, then that Travelers is not a true excess carrier, because the policy was not written under circumstances where rates were ascertained after giving due consideration to known existing and underlying basic or primary policies. Nothing in the record shows that Chambers & Owen was in any way benefited in its premium structure by reason of the existence of Truesdill’s General Casualty policy.” {Supra, at 404.)
(4) “Because the plaintiff has agreed that the payment made to him by General Casualty will be credited in the amount of $50,000 against any possible recovery against Travelers, Travelers has received the benefit of its policy provision and is only exposed to liability for sums in excess of the policy limits of the primary carrier. As the trial judge succinctly stated in his opinion:
“ ‘Travelers will not be called upon to pay any loss that General Casualty might have paid if the plaintiff is successful in the trial.’ ” {Supra, at 417.) (Emphasis added.)
(5) “We note in passing to what we have alluded to before — that, under the state of this record, where the insured did not purchase two insurance policies, one primary and one excess, Travelers is not in fact an excess insurer which had the opportunity, consciously, to *439adjust its premium rates on the basis that there was an underlying policy purchased by the same insured.” (Supra, at 417.)
(6) “Here, the fact that there were two policies, one Truesdill’s and the other Chambers & Owen’s is sheer coincidence.” (Supra, at 417.)
It is assumed the majority is sustaining the trial court’s misapplication of excess coverage law, even though the majority holds Travelers’ coverage was not excess. That makes writing this dissent similar to holding smoke, since there is no substance to which this author may directly respond.
It appears that the majority does not believe that Travelers’ coverage is excess with respect to General Casualty’s coverage, even though the trial court did so believe and decided the matter on that basis. However, the relationship between the two coverages makes a great deal of difference in the resolution of this case.
If both coverages are primary and as the court holds, Travelers’ “had the contractual duty to defend ab initio and to pay from ‘dollar-one’ ” (supra, at 417), then there is a good argument that the release of Truesdill was the release of both his primary carriers, General Casualty and Travelers, regardless of the language of the “special release.”
If Travelers’ coverage was excess for non-owned vehicles, i.e., non-owned by Chambers & Owen, as stated in its policy, there is a well-established legal precedent that General Casualty had to pay all its policy limits .before Travelers’ exposure arose.
16 Couch, Insurance 2d, sec. 62.60 (1966) at 508-09 states:
“Where the owner of an automobile or truck has a policy with an omnibus clause and the additional insured also has a policy with a nonownership clause which provides that it shall constitute excess coverage over and above any other valid, collectible insurance, the owner’s *440insurance has the primary liability. In such a situation, the liability of the excess insurer does not arise until the limits of the collectible insurance under the primary policy has been exceeded. It follows that the so-called ‘other insurance’ clause in the primary policy excluding or modifying liability if the additional insured has other valid and collectible insurance is inapplicable because the insurance under the excess coverage policy is not to be regarded as other collectible insurance available to the insured until the primary policy has been exhausted.”
The majority twice refers to the lack of proof in this case with regard to Travelers’ premium charge to Chambers & Owen demonstrating its coverage was excess. This ignores the language of the policy and the known fact in the record that Truesdill was an employee of Chambers & Owen. Truesdill carried his own policy with General Casualty Company on his owned automobile. To cover the risk that Chambers & Owen had as his employer, it insured non-owned vehicles (non-owned by Chambers & Owen) driven by employees. This was necessary for the employer’s protection for the acts of Truesdill, its employee, and therefore its agent, while he operated his own vehicle. Chambers & Owen was protecting its interests as Truesdill’s principal with excess coverage over and above his policy with General, the primary carrier. There was no need for proof as to premiums to demonstrate this obvious and admitted relationship.
To state as the majority does that: “Here, the fact that there were two policies, one Truesdill’s and the other Chambers & Owen’s, is sheer coincidence” is to ignore the facts of the relationship of employer-employee, owned — non-owned automobiles, the agreement of the parties that General had primary coverage and Travelers had excess coverage, and the basis on which the trial judge decided the issue.
In the trial court, as previously noted, the parties agreed that General carried the primary coverage and *441Travelers the excess coverage. That fact was before the trial court when the judge improperly entertained the motion. Yet, here the majority rewrites the facts agreed to in the trial court and states that Travelers owed from dollar-one.
If Travelers’ policy was excess coverage, then that policy only required it to “pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages . . .” As the excess carrier, Travelers was not legally obligated to pay until General’s $50,000 limits were exhausted and not just forgiven by the plaintiff.
This action went through the pleading stages as a tort case. It was not until sometime after the action commenced that the plaintiff, Truesdill, Chambers & Owen and General Casualty moved the court to give an advisory opinion as to the legal ramifications of a proposed settlement. The trial court stated in its decision that: “[I]t appears that Travelers does have the right to contest that interest [General’s right to settle its interest] so that the test of ‘justiciable controversy’ is met.”
In reality, Travelers opposed the motion for declaratory judgment, because it was not a proper motion. Travelers, in contesting the appropriateness of the motion, did not thereby lend the necessary opposition to the propriety of hearing the motion whereby the other parties sought the advice and opinion of the court regarding the contemplated settlement. The opposition to the motion did not create a justiciable issue with respect to the content of the motion.
When the court entertained the plaintiff’s motion to give an advisory opinion, Travelers had no option but to oppose the motion on its merits having lost in its efforts to convince the court to refrain from acting. In reality, the plaintiff, General Casualty, Truesdill and Chambers & Owen were giving up Travelers’ rights and *442legal interest in the amount between $20,000 and $50,000, General’s policy limits.
It is obvious from the record that all of the parties, other than Travelers, agreed to plaintiffs bringing the motion to approve a proposed special release.
The record is clear that the plaintiff sought the court’s advisory opinion, since the release had not been signed at the time of the motion. Its signing awaited the court’s favorable advisory opinion. No amount of vituperation in the majority opinion can stifle this part of the dissent. It is not sophomoric to believe that unless the trial court agreed it was proper to do what the parties proposed, the deal would have been off between them. There was no way the court could render any judgment binding on the parties when the judge gave his opinion. In fact, the judge signed an order1 not for judgment but *443establishing duties and rights of the parties. The only-part of the order that resembles an order for judgment is: “(3) Upon completing the above transaction, Ralph Truesdill and General Casualty Company shall be dismissed as parties to this action, with prejudice.” Even that part of the order, however, is based on a future contingency, i.e,, the completion of the transaction of signing the special release.
The language in Lubow v. Morrissey, 13 Wis. 2d 114, 123, 108 N.W.2d 156 (1961), makes clear the obligations of the primary carrier to continue at least until its full policy limits have been exhausted, “the excess clause would prevent payment of any portion by Liberty Mutual until full collection had been made from the other two.” (Emphasis added.)
Also, in Lubow, supra, at 125 the court states: “[A]ny judgment ultimately rendered in favor of a plaintiff must reflect the fact that the insurers who afford insurance which is not excess are primarily liable up to the applicable policy limits” (Emphasis added.)
The majority cites Deblon, et al. v. Beaton, et al., 103 N.J. Super. 345, 247 A.2d 172 (1968) with approval and then states: “An insurer is directly liable to the plaintiff if the underlying conditions of negligence are satisfied although, after commencement of the action, the insured is released or protected by an absolute covenant not to *444sue.” (Supra, at 426.) This is absolutely contrary to a plethora of Wisconsin cases holding that the release of the insured releases the insurer and especially in this case where the policy stated: “The Travelers will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages . . . .” Obviously, when the insured no longer has a legal obligation to pay, then there is no further obligation for that insurer.
A significant fact was present in the New Jersey case relied on by the majority that distinguishes that case from the one we are considering, though it is not mentioned in the present majority opinion.2 The plaintiffs in the New Jersey case did not release Jersey Insurance Company, but also did not waive any rights of plaintiffs against Jersey’s insureds under the Jersey policy. Therefore, in that release, the defendants were still liable along with Jersey under terms of the Jersey policy.
In the case under consideration, the “special release” released all claims against Travelers’ insured.
The liability of Travelers is predicated upon the liability of its insured, Chambers & Owen, as employer and principal for the negligent employee, Truesdill. There was no way the plaintiff could legally release the liability of Chambers & Owen without releasing Travelers whether by release, special release or covenant not to sue. A covenant not to sue in perpetuity under these circumstances is a ploy and could give rise to a defense by Travelers of lack of cooperation of their insured, Chambers & Owen. Chambers & Owen’s actions attempted to cause a loss to Travelers of its legal interest in $30,000 worth of coverage in the General Casualty’s policy.
*445General Casualty had no incentive to settle the claim for the agreed value of $30,000 as long as it could save the difference between the $20,000 which was paid and its $50,000 limit, even though it was the primary carrier.
Again, the majority bemoans the fact that too often insurance companies come to courts asking the courts to fill the gaps or repair the defects in their contracts; however, it does the companies little good to use artfully drawn language when the courts ignore common meaning and usage, as the court has done here. Travelers could not have more clearly expressed the fact that it was an excess carrier than it did in its policy, and yet its policy is treated here as an accidental coincidence in which the language used is rendered meaningless.
I would affirm the court of appeals.
The trial court’s amended order on motion to settle, dated June 15, 1979, states as follows:
“IT IS HEREBY ORDERED:
“1. That the court has the authority and does in fact enter a declaratory judgment in this matter on the motion.
“2. Plaintiff is permitted to settle his action against Ralph Truesdill and General Casualty Company on a payment by General Casualty Company of $20,000.00 to the plaintiff. Plaintiff in turn must release any obligation of Ralph Truesdill with respect to damages allocated to his causal negligence in the amount of $50,-000.00 in accordance with the policy limits of the General Casualty Company policy.
“3. Upon completing the above transaction, Ralph Truesdill and General Casualty Company shall be dismissed as parties to this action, with prejudice.
“4. Travelers Insurance Company has the obligation to defend the allegations of causal negligence against Ralph Truesdill by virtue of his employment with Chambers & Owen, Travelers’ insured.
“5. Travelers Insurance Company is obligated to pay any judgment based on the causal negligence of Ralph Truesdill in excess of $50,000.00 in accordance with and within the limits of the Travelers’ policy. This settlement with General Casualty by the *443plaintiff automatically credits any judgment based on the causal negligence of Ralph Truesdill in the amount of $50,000.00.
“6. Travelers shall have no cause of action against Ralph Truesdill, Chambers & Owen or General Casualty Company either by virtue of their dismissal from the lawsuit or by reason of any payments Travelers has made or may make in the future either in the defense of the lawsuit or pursuant to any judgment based on the causal negligence of Ralph Truesdill in excess of $50,-000.00.
“7. The defendant Travelers shall pay motion costs to the plaintiff in the amount of $50.00 on this motion.”
“Additional language of the instrument stated that ‘Christina Deblon in no way releases (Jersey) and no rights are waived against said parties [Beaton and Foley] as named assureds under . . . said policy ....”' Deblon v. Beaton, supra, at 348.