(dissenting)—I dissent from the majority holding that Postlewait Construction Co. is not an intended third party beneficiary under the insurance policy and is, therefore, precluded from pursuing its claim against Great American Insurance Companies. For the reasons which follow I would reverse the trial court's order granting summary judgment in favor of the insurer.
The majority concludes Postlewait was not an intended third party beneficiary because Great American did not expressly assume a direct obligation to Postlewait. The majority would limit the inquiry to the insurer's intent to benefit the third party. However, Grand Lodge of Scandinavian Fraternity of Am., Dist. 7 v. United States Fid. & Guar. Co., 2 Wn.2d 561, 569, 98 P.2d 971 (1940), noted:
Ordinarily, it is sufficient if the contract was evidently made for the benefit of the third person. Where the contract between the first party and the second party was entered into for the benefit of others, and where it appears that such benefit must be the direct result of *769performance and so within the contemplation of the parties, the third persons may enforce the contract, as such third persons are not incidental beneficiaries without rights under such contract.
Restatement (Second) of Contracts § 302, at 439-40 (1981) also provides:
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a promise is an intended beneficiary if recognition of a right to performance in the beneficiary is appropriate to effectuate the intention of the parties and either
(b) the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.
Intention may be inferred from the facts. Burke & Thomas, Inc. v. International Org. of Masters, 92 Wn.2d 762, 767, 600 P.2d 1282 (1979). Here, the facts are uncontroverted that the lease required P.K. Contractors to procure insurance coverage for Postlewait's equipment, and that P.K. Contractors, as promisee under the insurance policy, obtained such insurance from Great American with the intent to benefit Postlewait.
Although the majority relies upon Hertz Equip. Rental Corp. v. Homer Knost Constr. Co., 273 So. 2d 685 (La. Ct. App. 1973) in affirming the trial court's dismissal, that case is clearly distinguishable by the requirement under Louisiana statutes that contracts for the benefit of third persons must clearly express such an intention in writing.1 Hertz, at 688. In the context of an airplane lease, the Alaska Supreme Court recently determined a third party beneficiary contract should be implied at law in a similar insurance dispute. Stewart-Smith Haidinger, Inc. v. Avi-Truck, Inc., 682 P.2d 1108 (Alaska 1984). There, the insurer also claimed the lessor lacked standing to enforce the contract because it was not a named beneficiary under the policy. *770Holding a third party beneficiary contract would be implied at law, the court found the facts satisfied a 2-part inquiry: (1) the risk to the insurer remained unchanged; and (2) the third party was within the class intended to be benefited by the parties to an insurance contract. Avi-Truck, at 1113.
Applying the same 2-part inquiry to the present case, the facts indicate Great American intended to insure the equipment, and the risks and performance contemplated were identical whether P.K. Contractors or Postlewait possessed the insurable interest in the equipment during the lease term. Consequently, Postlewait should be allowed to pursue its action as an intended third party beneficiary under the policy.
Review granted by Supreme Court November 22, 1985.
This statutory requirement is referred to in Louisiana case law as a "stipulation pour autrui". See Whittington v. Louisiana-Pacific Corp., 385 So. 2d 863, 865 (La. Ct. App. 1980).