(concurring in part and dissenting in part).
I concur in that portion of the majority opinion which holds that a liability insurer who undertakes control of the defense of a suit against its insured without giving notice of a reservation of rights is estopped from later denying coverage for the liability under the policy; and, further, that an insurer who contracts to pay on behalf of the insured all damages the insured is obligated to pay for bodily injury arising out of the use of an automobile *444is liable under that policy when a person is run over by the subject vehicle.
However, I dissent from that portion of the opinion which limits the maximum recovery to a total of $50,000' on each policy in this case. The trial court allowed father and son each a recovery of $50,000 under the Tri-State policy. The rationale for its decision is set forth in its memorandum:
“It is evident that the school sought to cover its liability as set out in Chapter 466 by the purchase of insurance and Tri-State knew it was to insure the liability of the school within the provision of said Chapter. The school had every right to expect that the Tri-State policy covered liability to the extent of $50,000 for each claimant. The Tri-State policy incorporates Chapter 466 as a matter of law. Liability of the school district to the extent of $50,000 to each claimant is therefore covered by such policy.
“The rationale for the doctrine of estoppel and waiver is clearly seen in this case. The assumption of control and defense of a lawsuit by the insurer deprives the insured of its right to retain its own counsel so as to control its own defense and further requires the insured to cooperate with the insurer in such defense. In this case, Tri-State argued in post-trial motions and in the Supreme Court that the Fabers were one ‘claimant’ for purposes of 466.04 and at no time did it ever claim that there was no coverage if Fabers were one or two claimants. The school never knew it was facing an uncovered liability to the claimant father. Tri-State’s failure to raise this issue, to reserve its rights to deny coverage, denied the school the opportunity to retain its own counsel to protect it on this issue. In fact, the interests of TriState and the school are adverse on this issue and Tri-State should not now be allowed to deny full $50,000 coverage as to each claimant, father and son.
“Even if this Court is in error in its position that Chapter 466 is included in Tri-State’s policy, Tri-State is estopped or has waived its right to deny the same.”
*445It appears incongruous to me to find on the first time this case came before us that the father and son are separate claimants under the statute, and yet to now hold that under the policy they are to be treated as one “person” and thus limit the total recovery for both to $50,000 under that same policy instead of allowing father and son to each recover $50,000.
A school district had liability at the time of the accident only to the extent that it had insurance. If the school district took out liability insurance, it appears logical to me it intended to take the insurance to cover the limits and policy risks for which the statute allowed recovery. The trial court found that the school district did intend to do so and that Tri-State knew it was to insure that liability. The record, however, contains no testimony to support that finding. I would, therefore, remand to the district court for the sole purpose of determining whether the school district intended to take out insurance for the risks and the recovery limits contemplated by the statute, and whether the insurance was, in fact, so written.
The majority finds it difficult to find the insurance company liable for a risk it did not contemplate and for which it did not collect a premium. I would agree with that concern, but I find it just as objectionable that an insurance carrier would collect a premium for a contemplated risk and then not be obligated to pay when there was a loss within that risk.
Todd, Justice(concurring in part and dissenting in part).
I join in the opinion of Mr. Justice Yetka.
MacLaughlin, Justice(concurring in part and dissenting in part).
I join in the opinion of the Mr. Justice Yetka.
Scott, Justice(concurring in part and dissenting in part).
I agree with Mr. Justice Yetka.