Kavon Enterprises, Inc. v. American Universal Ins. Co., 75--18
Decision Date | 05 October 1976 |
Docket Number | No. 75--18,75--18 |
Citation | 245 N.W.2d 695,74 Wis.2d 53 |
Parties | KAVON ENTERPRISES, INC., a Wisconsin Corporation, Appellant, v. AMERICAN UNIVERSAL INSURANCE COMPANY, a Foreign Insurance Corporation, Respondent. |
Court | Wisconsin Supreme Court |
Alvin Richman, Milwaukee, for appellant; Roger Pettit, Milwaukee, of counsel.
Terrance E. Davczyk and Kasdorf, Dall, Lewis & Swietlik, Milwaukee, for respondent.
Initially the trial court denied defendant's motion for summary judgment on the ground that the question of estoppel raised a material issue which could best be resolved at trial. Subsequent to such pronouncement and during the hearing on the motion, defendant claimed it was entitled to summary judgment despite the existence of a question of estoppel because, as is admitted, plaintiff filed no affidavits in opposition to defendant's motion. Thereupon the trial court reversed its original denial of defendant's motion and granted summary judgment to the defendant.
The facts are not in dispute. We are asked to construe the effect of plaintiff's failure to file affidavits opposing defendant's motion for summary judgment. The issue is whether the trial court abused its discretion when it granted summary judgment on the sole ground that plaintiff had failed to file an affidavit in opposition to defendant's motion for summary judgment. 1 Put differently, the issue presented is whether the trial court was either initially correct when it denied summary judgment on the ground that an issue remained warranting a trial, or whether the court was subsequently correct when it granted summary judgment because no affidavit was filed by plaintiff opposing the defendant's motion for summary judgment.
Our court has '. . . set forth for the aid of trial courts the precise methodology which should be employed in determining whether the case then before them is an appropriate one for disposition by summary judgment.' 2 That 'precise methodology' has been set out in Marshall v. Miles (1972), 54 Wis.2d 155, 160, 161, 194 N.W.2d 630, 633, cited with approval in Peninsular Carpets, Inc., supra, footnote 1, as follows:
'Summary judgment is a drastic remedy that should not be granted where material evidentiary facts are in dispute, or, where reasonable inferences can be drawn from undisputed facts that would lead to alternative and opposite results. (Cases cited) The summary judgment procedure initially requires an examination of the pleadings to determine whether a cause of action has been stated and whether material issues of fact are presented. (Case cited) However, the allegations of the pleadings may not be considered as evidence or other proof on a disposition of the motion. (Cases cited) Assuming a cause of action and the existence of factual issues, an examination is then made of the moving party's (defendant's) affidavits and other proof to determine whether a prima facie defense has been established. (Case cited) If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (plaintiff's) affidavit and other proof to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. (Case cited) The summary judgment procedure is not a trial on affidavits. (Case cited) 3
Under this 'precise methodology' the trial court 'decides on summary judgment whether there is a substantial issue to be tried.' 4 Initially the trial court here found that there was precisely such substantial issue to be tried. Subsequently that holding was reversed and summary judgment granted. Thus the question before us becomes whether, with the defendant's affidavits in support of summary judgment uncontroverted by affidavits filed by the plaintiff, there remained to be tried a material issue of fact regarding equitable estoppel as a substitute for the sworn proof of loss required by the insurance policy.
This takes us to the defendant's affidavits and other proof to determine whether, at the summary judgment stage, a prima facie defense was established to plaintiff's amended complaint. Two affidavits were filed by the defendant. One was by its attorney, counsel stating: (1) That upon review of the pleadings, in his opinion, the action had no merit; (2) that plaintiff admits failure to give immediate notice in writing of the alleged loss and fails to provide sworn proofs of loss within the prescribed time period; (3) that such proof of loss is a condition precedent to defendant's duty to perform on the insurance contract; and (4) failure to file a timely proof of loss is a material breach of the insurance contract. The second affidavit, subscribed to by the assistant secretary of the defendant corporation, was a verification that the insurance policy attached to the motion was a true and correct copy.
The narrowed question becomes whether these two affidavits, both relating to the written policy of insurance and its provisions, are 'denials or defenses (which) are sufficient to defeat the plaintiff.' 5 Here in its amended complaint the plaintiff goes outside the terms and provisions of the written policy to assert a claim based on estoppel and waiver. Nothing in either of the two affidavits mentions or relates to the matters of estoppel and waiver. The plaintiff's amended complaint goes outside the provisions of the policy to assert a cause of action based on actual notice and proceeding to investigate the claim. The affidavits of defendant do not deal with actual notice and the accompanying assertions of estoppel and waiver. The factual issue, left untouched by the affidavits of defendant, is whether plaintiff can establish equitable estoppel or prove waiver as to the notice of loss provision contained in the policy. The affidavits stay within the four corners of the insurance contract. The case of the plaintiff does not.
We find the situation now before us analogous in material aspects with that before this court in the Frohna v. Continental Ins. Companies Case. 6 There the defendant insurer moved for summary judgment under a contract of airline liability insurance, which contract on its face did not cover the category of loss for which plaintiff sought recovery. Plaintiff sought reformation of the contract. In support of its motion for summary judgment, the defendant submitted affidavits claiming that the case had no merit, and setting forth the provisions of the insurance policy involved. Our court concluded...
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