Fajen v. Allstate Ins. Co., 11772
| Decision Date | 06 August 1975 |
| Docket Number | No. 11772,11772 |
| Parties | Roy Estel FAJEN, Plaintiff-Appellant, v. ALLSTATE INSURANCE COMPANY, Defendant-Respondent. |
| Court | Idaho Supreme Court |
Lloyd J. Webb, of Webb, Pike, Burton & Carlson, Twin Falls, for plaintiff-appellant.
Craig Marcus, of Marcus & Marcus, Boise, for defendant-respondent.
This is an appeal from a summary judgment in favor of a defendant insurance carrier and against a plaintiff named as insured in the policy. The sole issue presented is the entry of summary judgment based on the 'other insurance' defense advanced by the insurance carrier. We reverse.
On April 4, 1970 in the State of Nevada a Chevrolet automobile driven by one Billy Sublette collided with a Mercedes automobile driven by Wanda Fajen and this action resulted. The collision resulted in injuries to Mrs. Fajen and her passenger Lucille Smith. Roy Fajen was not involved directly in the accident. He was driving a Mercury automobile owned by his father-in-law and following the Mercedes driven by his wife when he observed the collision between the Chevrolet and the Mercedes. He stopped the Mercury, got out and went to the assistance of his wife, and it is alleged that he sustained injures to his back as he was assisting in lifting the Mercedes automobile to free his wife.
Sublette, the driver of the Chevrolet, was uninsured but the owner, one Nelda McCallister, was covered by Foundation Reserve Insurance Company. Foundation Reserve paid for the injuries to the occupants of the Mercedes but allegedly has failed and refused to compensate Fajen for his injuries. Fajen was the named insured in a policy issued by respondent Allstate on the Mercedes. S. B. Smith, Fajen's father-in-law, was the named insured in a policy issued by Allied Mutual Insurance Company on the Mercury. This suit was instituted by Fajen against Allstate to recover for his injuries under the uninsured motorists provision of the Allstate policy. Upon earlier motions the trial court correctly denied summary judgment on respondent's theory of uninsured motorists, a release of claim in violation of terms of the policy and the non-applicability of the rescue doctrine. Respondent seeks to raise these and other theories which tend to support the trial court's summary judgment above and beyond its specific ruling of 'other insurance' as a basis therefor. All of said arguments are at least susceptible to the rule that controverted facts may not be resolved at the summary judgment stage and thus will not be considered.
In its memorandum of decision the trial court wisely noted that the record did not contain a copy of the Allstate policy except the uninsured motorist provisions thereof. The court stated therein:
This defect in the record has not to this day been remedied. Hence this...
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