Hunter v. Farmers Ins. Group, 4591

• Decision Date: 15 October 1976
• Docket Number: No. 4591,4591
• Citation: 554 P.2d 1239
• Parties: Doris HUNTER, Appellant (Plaintiff below), v. FARMERS INSURANCE GROUP, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 1239

554 P.2d 1239

Doris HUNTER, Appellant (Plaintiff below), v. FARMERS INSURANCE GROUP, Appellee (Defendant below).

No. 4591.

Supreme Court of Wyoming.

Oct. 15, 1976.

Hunter Patrick, Patrick & LaCroix, Powell, signed the brief and Daniel R. Spangler, Cheyenne, appeared in oral argument on behalf of appellant.

James S. Allison, Associate of Ross D. Copenhaver, P. C., Powell, signed the brief and appeared in oral argument on behalf of appellee.

Before GUTHRIE, C. J., and McCLINTOCK, RAPER, THOMAS and ROSE, JJ.

RAPER, Justice.

The defendant-appellee insurance company moved for summary judgment in the district court, claiming that as a matter of law the defendant insurance company is free of liability for medical expenses related to a covered automobile accident and person, which did not become payable until more than one year from the date of the occurrence under the following medical expense policy obligation:

'To pay all reasonable expenses actually incurred within one year from the date of accident for necessary medical services.'

From a ruling favorable to the defendant insurance company, the plaintiff appeals. We will reverse the district court because of the insufficiency of the summary judgment proceedings.

The plaintiff was injured in an automobile accident which took place on September 6, 1972. She now asserts that medical expenses arising out of a knee operation in November, 1974, were the result of that occurrence and, therefore, the insurance company should be responsible for medical expenses claimed. Defendant paid medical expenses billed to the plaintiff in the one-year period. The defendant insurance company, on the other hand, asserts that it is absolved from liability for the 1974 medical expenses on the basis of the quoted provisions contained in the policy.

We are unable to reach the real merits of the case, namely, the construction which should be placed on the questioned policy provision. The motion for summary judgment and supporting affidavit are woefully inadequate; the parties and the trial court lost sight of and ignored the controlling rule and decisions of this court in that regard. Rule 56, W.R.C.P., in pertinent part, with respect to summary judgment, provides as follows:

'(b) A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in his favor as to all or any part thereof.

'(c) * * * The adverse party prior to the day of hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show 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. * * *

'(e) Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. 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.'

The defendant's attorney attached his own affidavit in support of the defendant's motion, declaring that:

'3. Deponent believes that there is no genuine issue of material facts to be determined in connection with this action since the provisions of the Defendant's insurance policy, a copy of which is attached hereto, only provides coverage for all reasonable medical expenses actually incurred within one year from the date of the accident and the medical expenses sought to be recovered by the Plaintiff in the above entitled action were incurred more than one year from the date of the accident, September 6, 1972.'

There was nothing more to support the motion; only that naked hearsay statement. There was not compliance with the rule that affiant must demonstrate personal knowledge of the facts to which has swore. (There is no issue about the policy provision-the record plainly shows that to be the provision involved.)

The response of the plaintiff was to file a counter-affidavit, signed by plaintiff's attorney, which was not shown to be based on personal knowledge but only that 'he is familiar with the facts and circumstances.' That was likewise no more than hearsay. To that was attached a letter from a doctor, indecisive and unsworn. ¹ That was hearsay on top of hearsay.

The plaintiff's complaint alleges:

'6. That as a result of said accident, your Plaintiff incurred reasonable expenses for necessary medical services as follows: To Saint Vincent's Hospital, Billings, Montana, from June 27, 1974, to July 6, 1974, daily service charge, $423.00, pharmacy, $16.70, laboratory, $13.00, medical supplies, $26.55, operating room and surgical supplies, $100.80, anesthesia supplies, $13.00, intensive care, $12.00 physical therapy, $54.00, emergency room, $11.00, for a total of $670.05; to Dr. Stephen P. Robison, Billings, Montana, for anesthesia, June 28, 1974, $96.00; to Dr. W. T. Daniels, Billings, Montana, from March 29, 1974, to July 19, 1974, examination of right knee, $8.00, x-ray of right knee, $10.00, patellar tendon transfer, $405.00, and knee immobilizer, $23.00; to Murray's Apothecary Shop, Cody, Wyoming, from December 29, 1973, to July 8, 1974, pharmaceuticals in a total amount of $92.00; and to Dr. Frederick Deiss, Powell, Wyoming, July 15, 1974, reinforcement of cast,.$7.00 for a total of $1,311.05.

'7. That the above medical services became necessary at the time of the accident on September 6, 1972, and were the result of a continuous period of treatment following the accident through July 19, 1974.'

The defendant's answer specifically denies both paragraphs!

The only possible source of undisputed facts is that the defendant, by its brief, admits the facts stated in plaintiff's brief. The only problem is that the admitted facts are obviously based on the hearsay gathered up by plaintiff's counsel and not specific enough to be useful. They are:

'* * * The pleadings and affidavit showed that Appellant was insured by Appellee at the time of an automobile accident in which she was injured on September 6, 1972. Her medical services for injuries suffered in the accident continued well into 1974. Appellee undertook by its policy 'to pay all reasonable expenses actually incurred within one year from the date of accident for necessary medical services,' up to a certain amount. Appellant has been paid for medical care which she received and paid for within one year from the accident. Appellee refused to reimburse her for care which she received and paid for more than one year after the accident. * * *

'* * * her (plaintiff's) physician recommended waiting for surgery, in hopes that she would recover from her knee injury without the necessity of surgery. She waited, a year passed, and the surgery was performed. * * *'

There are no other admissions mentioned in the trial court's order overruling the motion for summary judgment nor in the file.

Evidence which is relied on to sustain or defeat a summary judgment must be such as would be admissible in evidence. Neither of affiants, both attorneys for the parties, could testify in the case because their information is not based on personal knowledge and is merely inadmissible hearsay. Wunnicke Finance Company v. Tupper, Wyo.1962, 373 P.2d 142; Low v. Sanger, Wyo.1970, 478 P.2d 60.

A burden is imposed on both parties to demonstrate to the court the absence or existence of a conflict as to material facts and this is done by the showing of specific facts. A party cannot rely on conclusions nor can they be employed by a court in disposing of a motion for summary judgment. McClure v. Watson, Wyo.1971, 490 P.2d 1059, 1062. The defendant-counsel's affidavit is in non-compliance for that reason, even if he was qualified...