BREWER, C.J.

Plaintiff, an alleged third-party beneficiary under a motor vehicle insurance policy, appeals from a judgment dismissing, for failure to state facts sufficient to constitute a claim for relief (ORCP 21 A(8)), and failure to prosecute the action by the real party in interest (ORCP 26 A), this action for breach of contract, negligence, and declaratory judgment. We conclude that the trial court lacked authority to adjudicate plaintiff's claim for declaratory judgment under ORS 28.110, because plaintiff failed to join the named insured as a party to that claim. In addition, we conclude that the trial court properly dismissed plaintiff's negligence claim for failure to state a claim. However, we conclude that the trial court erred in dismissing plaintiff's claim for breach of contract on the grounds that defendants urged before the trial court.

Because this action was dismissed at the pleading stage, we liberally construe the pleadings and consider as true the facts alleged in plaintiff's complaint and all reasonable inferences that may be drawn from those facts. ORCP 12 A; Simonsen v. Ford Motor Co., 196 Or.App. 460, 462, 102 P.3d 710 (2004), rev. den., 338 Or. 681, 115 P.3d 246 (2005). In her complaint, plaintiff alleged that she was injured in a motor vehicle collision and, as a result, incurred medical expenses and wage loss in excess of $100,000. The collision was the fault of a driver whose liability insurance provided only $25,000 in coverage. At the time of the collision, plaintiff was driving a 2004 Ford Ranger that had been loaned to her by Greer, the owner of MD & D Construction.

Plaintiff further alleged that MD & D maintained an insurance policy (the policy) with defendant Truck Insurance Exchange (Truck) that included substantial underinsured motorist (UIM) coverage benefits as well as personal injury protection (PIP) coverage for medical expenses and wage loss for injuries to occupants of an insured vehicle. Shortly before loaning the vehicle to plaintiff, Greer called defendant Parham Insurance Agency (Parham) and asked that the Ranger be added to the MD & D policy. Parham sold insurance as an agent of various insurers, including Truck. Based on the statements of Parham, Greer "reasonably believed that he had insurance which covered the vehicle and therefore, loaned the vehicle to plaintiff." However, Truck denied plaintiff's claim for PIP and UIM benefits under the MD & D policy.

In her claim for breach of contract, plaintiff alleged that she was a third-party beneficiary of the policy and that Truck had refused to pay the benefits that she claimed under the policy. In her declaratory judgment claim, plaintiff realleged those operative facts in support of her request for a judgment that the policy was in force and effect when she was injured and that she was covered under the PIP and UIM provisions of the policy. In her negligence claim, plaintiff alleged, in addition to the other facts alleged in the complaint, that Parham was negligent in failing to procure the insurance that Greer had requested before the collision.

Defendants filed a motion to dismiss the complaint. As noted, the sole grounds for the motion were defendants' assertions that the complaint failed to state facts sufficient to constitute claims for relief and that plaintiff was not the real party in interest in the action. Defendants argued that the complaint was insufficient under ORCP 21 A(8) because plaintiff was "a stranger" to the insurance policy who was, at most, an "indirect third party beneficiary" who had "no relationship whatsoever to Parham." Defendants argued that the only real party in interest under the policy was MD & D and that, because plaintiff had failed to join MD & D as a party, the action must be dismissed under ORCP 26 A. Defendants made no separate argument that the court lacked authority to adjudicate the declaratory judgment claim under ORS 28.110, nor did defendants argue that the action should be dismissed because MD & D was a necessary party under ORCP 29.

At the hearing on defendants' motion to dismiss, the trial court opined that the complaint was deficient because, in the absence of MD & D's joinder, plaintiff lacked "standing" to assert the breach of contract and negligence claims. In the ensuing order granting the motion to dismiss, the court afforded plaintiff "leave to re-plead and/or bring in any other necessary parties by" a date certain. After plaintiff failed to file an amended pleading, the court entered a judgment dismissing the action.

On appeal, plaintiff reiterates her arguments before the trial court that, as a third-party beneficiary of the policy and Parham's undertaking to obtain the requested insurance coverage for MD & D, she has stated claims for breach of contract and negligence as a real party in interest seeking PIP and UIM benefits or equivalent damages on the ground that those losses are personal to her. Defendants reply that,

In addition, for the first time on appeal, defendants rely on ORCP 29 A, which provides:

According to defendants:

We begin with the sufficiency of plaintiffs' complaint to state a claim for breach of contract; in this case, that issue is inextricably entwined with defendants' argument that plaintiff is not a real party in interest with respect to that claim. ORCP 21 A(6) provides that a complaint may be dismissed on the ground that "the party asserting the claim is not the real party in interest." The rule flows from ORCP 26 A, which requires that

Case law describes the rule as recognizing two classes of persons who may be regarded as "real parties in interest" under ORCP 26 A. First, there is the class of parties who will be "`benefitted or injured by the judgment in the case.'" Association of Unit Owners v. Dunning, 187 Or.App. 595, 607, 69 P.3d 788 (2003) (quoting Pulkrabek v. Bankers' Mortgage Corp., 115 Or. 379, 238 P. 347 (1925)). Second, there is the class of persons who are "statutorily authorized to bring an action." Id.

To be sure, plaintiff's complaint in this case is not artfully framed. However, giving plaintiff the benefit of all reasonable inferences flowing from the facts alleged in the complaint, we conclude that she has adequately stated a claim for breach of contract as well as her real-party-in-interest status for purposes of that claim. From the allegations that Greer, MD & D's owner, asked Parham to add the 2004 Ranger to the existing insurance policy, which included particular PIP and UIM benefits for occupants of a covered vehicle, and that, based on Parham's statements, Greer reasonably believed that the Ranger was covered, the following inferences reasonably flow: (1) that Truck issued the policy; (2) that Parham was acting as Truck's agent; (3) that, as Truck's agent, Parham promised to add the Ranger to the policy; and (4) that plaintiff was claiming PIP and UIM benefits under the policy. In addition, the allegations that Greer loaned the Ranger to plaintiff because he believed from his conversation with Parham that the vehicle was covered under the policy and that plaintiff was injured in a collision and, therefore, was entitled to PIP and UIM benefits, are sufficient to permit inferences that plaintiff was covered under the policy because she was occupying the Ranger with permission at the time of her collision with an underinsured driver. In fact, at oral argument on the motion to dismiss, defendants' counsel acknowledged that plaintiff "alleges she was a permissive driver—a driver of a vehicle owned by MD & D Construction." Plaintiff was not required to plead more to state a claim for PIP and UIM benefits as a real party in interest.

For purposes of UIM coverage, "insured" means every person "occupying an insured vehicle" with permission. ORS 742.504(2). Oregon motor vehicle insurance policies must provide UIM coverage that is no less favorable to the insured than the terms required by ORS 742.504. ORS 742.502; Vega v. Farmers Ins. Co., 323 Or. 291, 302, 918 P.2d 95 (1996). Because the complaint permits the inference that plaintiff was a permissive occupant of the Ranger, plaintiff has sufficiently alleged that she is an intended third-party beneficiary of the insurance policy who will be "benefited or injured by the judgment in the case." Dunning, 187 Or.App. at 607, 69 P.3d 788. Accordingly, the trial court erred in dismissing plaintiff's breach of contract claim on either of the grounds raised in defendants' motion to dismiss.

There remains to be considered defendants' argument that ORCP 29 requires dismissal of plaintiff's breach of contract claim in the absence of MD & D's joinder as a party, because defendants otherwise would be left "subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of" MD & D's interest in the policy. Even though, in its order granting defendants' motion to dismiss, the trial court referred to the joinder of "necessary" parties, defendants did not rely on ORCP 29, and the trial court did not address the standards for making a determination under that provision. We may not consider that argument for the first time on appeal. ORCP 21 G(3) (defense of failure to join indispensable party may be raised by pleading, motion, or at trial); Waddill v. Anchor Hocking, Inc., 330 Or. 376, 384, 8 P.3d 200 (2000), adh'd to on recons., 331 Or. 595, 18 P.3d 1096 (2001) (defense enumerated in ORCP 21 G may not be raised for the first time on appeal).

We next consider plaintiff's argument that the trial court erred in dismissing her claim against Parham for negligent failure to procure coverage for the Ranger and its permissive occupants, including plaintiff. We begin with the issue whether plaintiff alleged facts sufficient to constitute a claim for negligence under ORCP 21 A(8). In Hale v. Groce, 304 Or. 281, 744 P.2d 1289 (1987), the defendant lawyer had promised a testator that he would include in the testator's will a specific bequest to the plaintiff. The lawyer then failed to carry out that promise. After unsuccessfully attempting to reform the will, the plaintiff brought an action against the lawyer for breach of contract and negligence. The Supreme Court held that the plaintiff's complaint stated claims both for breach of contract and for negligence.

The court began by observing,

304 Or. at 283-84, 744 P.2d 1289 (citations omitted). The court then turned to the question whether the allegations in the plaintiff's complaint were sufficient to permit him to assert "third-party beneficiary" status. The court stated:

Id. at 286, 744 P.2d 1289. The court went on to hold that,

Id.

The court in Hale considered the beneficiary of a will to be a classic "intended" third-party beneficiary when the facts satisfy the standards in the Restatement (Second) of Contracts, section 302 (1981), which provides:

In Caba v. Barker, 341 Or. 534, 145 P.3d 174 (2006), the court distinguished Hale. In that case, two residual legatees of a will brought an action against the lawyer who drafted it. The plaintiffs asserted that, in addition to their status as residual legatees, they were the intended third-party beneficiaries of what they characterized as an "implied" promise that they alleged that the defendant made to the testator in connection with that will. The plaintiffs further alleged that the defendant failed to carry out the terms of his implied promise to the testator, that they suffered damages as a result of that failure, and that they had either a viable breach of contract claim or a viable negligence claim (or both) against the defendant as a result.

The plaintiffs invoked Hale (and the Restatement), alleging that the defendant's promise to the testator to draft a will that included a specific bequest to them (to make them residual legatees) "included an implied promise to make the will invulnerable to a will contest so as to achieve [the testator's] plan to maximize gifts to residuary beneficiaries." The Supreme Court rejected the plaintiffs' argument:

Caba, 341 Or. at 540-41, 145 P.3d 174.

Plaintiff in this case, like the plaintiff in Caba, has not pleaded a qualifying basis for the implication of an actionable promise by Parham for the benefit of plaintiff. There is nothing in plaintiff's complaint that would permit an inference that Parham undertook a duty, apart from the foreseeability of the harm, for the benefit of any permissive occupant of the Ford Ranger. Unlike in Hale, where the plaintiff was a classic intended beneficiary of the defendant attorney's promise to include the plaintiff as a specific beneficiary in the testator's will, here, there is no allegation that plaintiff was an intended beneficiary of Parham's alleged promise or, for that matter, that MD & D told Parham that it sought coverage for the Ranger so that it could loan the vehicle to a permissive user. Instead, plaintiff merely alleged that, as a result of communications with Parham, Greer "reasonably believed that he had insurance which covered the vehicle and, therefore, loaned the vehicle to plaintiff." Accordingly, at most, plaintiff's negligence claim supports an inference that plaintiff, as with any other potential permissive occupant of the Ranger, was an incidental beneficiary of Parham's promise. That is insufficient to give rise to negligence liability in these circumstances. Lord v. Parisi, 172 Or.App. 271, 277-78, 19 P.3d 358, rev. den., 332 Or. 250, 27 P.3d 1044 (2001) (concluding that, under Hale, an incidental beneficiary could not maintain a legal malpractice claim).1

We turn, finally, to plaintiffs' argument that the trial court erred in dismissing her claim for a declaratory judgment that she was covered under the PIP and UIM provisions of the policy. It is important to note at the outset that, although the declaratory judgment claim is based on the same operative facts alleged in the breach of contract claim, the analyses of the two claims are different in important respects. First, at least in their reply memorandum in support of the motion to dismiss, defendants asserted before the trial court that the declaratory judgment claim must be dismissed based on cases decided under ORS 28.110. That statute provides, in part:

In particular, defendants relied on Nolan v. Jackson National Life Ins. Co., 155 Or.App. 420, 963 P.2d 162 (1998), where we said:

155 Or.App. at 430-31, 963 P.2d 162.

As Nolan and the cases on which we relied there indicate, defendants' argument that MD & D is a party that must be joined under ORS 28.110 would be cognizable even if it had been raised for the first time on appeal. See also State ex rel Dewberry v. Kulongoski, 346 Or. 260, 273, 210 P.3d 884 (2009) (quoting Stanley, Adm., 211 Or. at 202, 315 P.2d 125, "(`[C]ourts have no authority to make a declaration unless all persons "who have or claim any interest which would be affected by the declaration" are parties to the proceeding.') (quoting ORS 28.110)."). Thus, unlike our disposition of defendants' tardy contention that ORCP 29 requires dismissal of plaintiff's other claims, we must address defendants' contention, made for the first time on appeal, that ORS 28.110 requires dismissal of plaintiff's declaratory judgment claim.

Accordingly, we turn to plaintiff's challenge to the dismissal of her declaratory judgment claim, focusing on defendant's argument under ORS 28.110. It is axiomatic that MD & D, as a party to a contract of insurance, has an interest that would be affected by a declaration that a putative intended beneficiary is or is not covered under the policy. If, for example, defendants were to prevail on the declaratory judgment claim, MD & D would be exposed to risk of liability to plaintiff for having loaned her an uninsured vehicle. Moreover, it is equally axiomatic that, in MD & D's absence, a declaration in this case that the Ranger was not covered or that plaintiff was not a covered occupant would expose defendants to the risk of successive litigation by MD & D and an inconsistent adjudication in such an action. Those risks present a classic circumstance in which, even though plaintiff has adequately alleged that she is a real party in interest, declaratory judgment cannot be rendered without the joinder of all parties to the insurance policy. See Lotches, 276 Or. at 85-86, 554 P.2d 169 (in insurer's declaratory judgment action against claimants on an insurance policy, insured was required to be joined under ORS 28.110).

We turn to the appropriate disposition on appeal. That issue is complicated by the fact that, even though defendants' motion to dismiss did not expressly focus on ORS 28.110, and the trial court did not address that statute, the court did give plaintiff an opportunity to file an amended complaint that joined MD & D as a party, and she failed to avail herself of that opportunity. For two reasons, we conclude that plaintiff's failure to join MD & D does not require outright affirmance of the trial court's dismissal of her declaratory judgment claim. First, we believe that plaintiff is entitled to one more opportunity to join MD & D as a party to the declaratory judgment claim in light of our application— for the first time on appeal— of ORS 28.110, the controlling statute. Second, because we have concluded that the trial court erred in dismissing plaintiff's breach of contract claim, the parties will have an opportunity on remand to address the necessity of MD & D's joinder as a party to that claim under ORCP 29 and ORCP 21 G(2). It makes little sense, given the inextricable relationship between the breach of contract and declaratory judgment claims, to dismiss the latter without recourse when the parties will have an opportunity to contest under ORCP 29 the necessity of joining MD & D as a party to the breach of contract claim.2

Judgment dismissing breach of contract claim reversed and remanded; judgment dismissing declaratory judgment claim vacated and remanded to the trial court for dismissal unless MD & D Construction is joined within a time to be set by the court; otherwise affirmed.