Hostetler v. State Farm Fire and Cas. Co.

• Citation: 521 N.E.2d 1357
• Decision Date: 28 April 1988
• Docket Number: No. 27A04-8710-CV-332,27A04-8710-CV-332
• Parties: Daniel P. HOSTETLER, and Brenda K. Hostetler, Appellants (Plaintiffs Below), v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 1357

521 N.E.2d 1357

Daniel P. HOSTETLER, and Brenda K. Hostetler, Appellants (Plaintiffs Below), v. STATE FARM FIRE AND CASUALTY COMPANY, Appellee (Defendant Below).

No. 27A04-8710-CV-332.

Court of Appeals of Indiana Fourth District.

April 28, 1988.

David M. Payne, Ryan, Welchons & Payne, Marion, for appellants.

Jerome T. Holderead, Browne Spitzer Herriman Browne Stephenson & Holderead, Marion, for appellee.

CONOVER, Judge.

Plaintiffs-Appellants Daniel and Brenda Hostetler (Hostetlers) appeal from the trial court's grant of summary judgment in favor of Defendant-Appellee State Farm Fire and Casualty Company (State Farm) in a case to recover for damages under an insurance policy.

We affirm.

The sole issue presented on appeal is whether the trial court erred in granting State Farm's motion for summary judgment.

The Hostetlers purchased their home in December, 1976. Thereafter, State Farm issued an insurance policy covering it against damage from snow and ice, but excluding loss from structural defects.

In March, 1984, after a period of heavy snow, the Hostetlers noticed their roof sagging and filed a claim for $3,597.16 with State Farm for roof and ceiling damage. State Farm denied the claim, believing the damage was not caused by ice and snow. The Hostetlers then initiated the current action to recover for damages under the insurance policy. State Farm filed a motion for summary judgment which was granted by the trial court. The Hostetlers contend summary judgment was inappropriate because a genuine issue of material fact exists regarding the cause of their sagging roof.

Summary judgment is appropriate only in limited situations. Ind. Rules of Procedure, Trial Rule 56 provides in part

(C) Motion and Proceedings Thereon ... The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions and affidavits filed pursuant to Trial Rule 5(D), together with any testimony show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.....

(E) Form of Affidavits--Further Testimony--Defense Required....

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.... (Emphasis supplied).

Thus, the moving party carries the burden of establishing:

(a) there is no issue as to any material fact, and

(b) he is entitled to judgment as a matter of law.

Hinkle v. Niehaus Lumber Co. (1987), Ind.App., 510 N.E.2d 198, 200, reh. denied. The moving party must fulfill these two requirements before any burden shifts to the non-movant. Id.

In Hinkle, we discussed this proposition stating

The method of ascertaining whether a material factual issue exists is as follows: Facts alleged in the complaint are taken as true except to the extent that they are negated by other pleadings, depositions, answers to interrogatories, affidavits, or other evidence presented by the moving party. (citing cases) All of which amounts to requiring the party moving for summary judgment to shoulder the burden of establishing the lack of material factual issue.... Once the movant makes such a showing, the opposing party may not rest on his pleadings, but must then demonstrate the existence of a genuine issue for trial. (citing cases)

Hinkle, supra, at 200, quoting Kahf v. Charleston South Apartments (1984), Ind.App., 461 N.E.2d 723, 729, trans. denied. Therefore, the nonmovant may rest upon his pleadings until the moving party establishes no genuine factual issue exists. Hinkle, supra, at 200-201. If, however, the moving party successfully demonstrates no genuine issue exists, the non-moving party must show the presence of such a fact to stave off summary judgment. Fort Wayne Community Schools v. Fort Wayne Education Association, Inc. (1986), Ind.App., 490 N.E.2d 337, 339; Conard v. Waugh (1985), Ind.App., 474 N.E.2d 130, 134. In doing so, the non-moving party may not merely rest upon his pleadings, but his response must set forth specific facts indicating an issue of material fact exists. Raymundo v. Hammond Clinic Assoc. (1983), Ind., 449 N.E.2d 276, 281; Popp v. Hardy (1987), Ind.App., 508 N.E.2d 1282, 1284; Fort Wayne Community Schools, supra, at 340; Ind. Rules of Procedure, T.R. 56(E). If the nonmovant fails to meet this burden, summary judgment may be granted. Raymundo, supra, at 280; Williams v. Lafayette Production Credit Association (1987), Ind.App., 508 N.E.2d 579, 582, reh. denied; Conard, supra, at 134; Ind. Rules of Procedure, T.R. 56(E).

When reviewing the grant of a summary judgment motion, we stand in the shoes of the trial court. Hinkle, supra, at 201. All evidence must be construed in favor of the nonmovant and all doubts as to the existence of a material issue must be resolved against the movant. Raymundo, supra, at 280; Hinkle, supra, at 201; Penwell v. Western & Southern...