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Hooks v. Colonial Life & Accident Insurance Co.

Filed: November 6, 1979.

JAMES G. HOOKS
v.
COLONIAL LIFE & ACCIDENT INSURANCE COMPANY



Appeal by plaintiff from Kivett, Judge. Judgment entered 30 June 1978 in Superior Court, Caswell County. Heard in the Court of Appeals 18 September 1979.

Martin (Harry C.), Judge. Judges Hedrick and Clark concur.

Martin

The now familiar rules applicable to summary judgment are stated by Justice Huskins for the Supreme Court in Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 469-70, 251 S.E.2d 419, 421-22 (1979):

Authoritative decisions, both state and federal, interpreting and applying Rule 56 hold that the party moving for summary judgment has the burden of "clearly establishing the lack of any triable issue of fact by the record properly before the court. His papers are carefully scrutinized; and those of the opposing party are on the whole indulgently regarded." 6 Pt. 2 Moore's Federal Practice, § 56.15[8], at 642 (2d ed. 1976); Singleton v. Stewart, 280 N.C. 460, 186 S.E.2d 400 (1972). "This burden may be carried by movant by proving that an essential element of the opposing party's claim is non-existent or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim. If the moving party meets this burden, the party who opposes the motion for summary judgment must either assume the burden of showing that a genuine issue of material fact for trial does exist or provide an excuse for not so doing." Zimmerman v. Hogg & Allen, 286 N.C. 24, 209 S.E.2d 795 (1974).

The language of the rule itself conditions the rendition of summary judgment upon a showing by the movant that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The court is not authorized by Rule 56 to decide an issue of fact. It is authorized to determine whether a genuine issue of fact exists. The purpose of summary judgment is to eliminate formal trials where only questions of law are involved by permitting penetration of an unfounded claim or defense in advance of trial and allowing summary disposition for either party when a fatal weakness in the claim or defense is exposed. {PA}

Page 608} Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). "The device used is one whereby a party may in effect force his opponent to produce a forecast of evidence which he has available for presentation at trial to support his claim or defense. A party forces his opponent to give this forecast by moving for summary judgment. Moving involves giving a forecast of his own which is sufficient, if considered alone, to compel a verdict or finding in his favor on the claim or defense. In order to compel the opponent's forecast, the movant's forecast, considered alone, must be such as to establish his right to judgment as a matter of law." 2 McIntosh, N.C. Practice and Procedure, § 1660.5 (2d ed. Phillips Supp. 1970). "If there is any question as to the credibility of witnesses or the weight of evidence, a summary judgment should be denied. . . ." 3 Barron and Holtzoff, Federal Practice and Procedure, § 1234 (Wright ed. 1958).

We now apply these principles to the record before us to determine the propriety of the summary judgment for the defendant.

The one basic fact issue that plaintiff must prove at trial is that the 15 September 1973 automobile accident was the direct, independent and exclusive cause of his disability. The evidence before the court at the hearing showed that the prior physical condition of plaintiff at least contributed to plaintiff's alleged disability. There was no evidence that plaintiff's condition is solely the result of the 15 September 1973 accident. Plaintiff does not argue to the contrary in his brief; nevertheless, plaintiff contends the entry of summary judgment was error because of the incontestability clause in the policy.

The policy contains the following provision:

Time limit on certain defenses: After two years from the effective date of this Policy no misstatements, except fraudulent misstatements, made by the applicant in the application for such Policy shall be used to void the Policy or to deny a claim for loss incurred or disability (as defined in the Policy) commencing after the expiration of such two-year period.

No claim for loss incurred or disability (as defined in the Policy) commencing after two years from the effective date of this Policy shall be reduced or denied on the ground that a disease or physical condition not excluded from coverage by name or specific description effective on the date ...


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