Durham v. Margetts

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Janie DURHAM, Plaintiff and Appellant, v. Cheryl MARGETTS, Defendant and Respondent.

No. 14858.

Supreme Court of Utah.

Nov. 7, 1977.

tion and which became effective on October 1, 1974. The monthly premium on this policy was $3.50 which, when added to the prior deduction of $30.70, increases the sum withheld to $34.20, the amount of the deduction for October. When it was learned that the deductions for the old policy had been made after its cancellation, the amounts withheld were returned to the heir of Mr. May, together with the payments made on the accident policy.

While there was a credit due Mr. May of $14.40 per month for the amounts withheld on the canceled policy, there was never a payment of $17.19 per month made on the anticipated policy, either by cash or by deduction.

We think the court ruled correctly in holding that Mr. May was not insured under the No. 509 application and that Elaine Aho was not entitled to recover on her complaint.

The judgment is affirmed. No costs are awarded.

WILKINS, J., concurs.

HALL, J., concurs in the main opinion and also in the concurring opinion of CROCKETT, J.

CROCKETT, Justice (concurring with comments).

Concurring:

I note my agreement with the proposition relied upon by the plaintiff: that if an applicant for insurance has done everything required of him, including payment of the premium, or arranging credit for its payment, for insurance to begin on a day certain, then the insurance should be effective from the stated date; and this should be so notwithstanding a proviso that the insurance will not be in effect until approval by the company‘s home office, or other such condition. The premium pays for insurance from the stated date; and if the company can avoid any liability that occurs before it approves the policy, (or other condition is fulfilled), it is exacting payment for a period for which it gives no coverage.

For that reason it has been correctly and justly held that if liability occurs after the promised date of coverage, the company cannot arbitrarily refuse approval and thus avoid liability, but can refuse approval only if it is made to appear that there was some good cause which would have justified its refusal to approve the policy, if the liability had not occurred. See

Long v. United Benefit Life Insurance, 29 Utah 2d 204, 507 P.2d 375 (1973);

Prince v. Western Empire Life Insurance, 19 Utah 2d 174, 428 P.2d 163 (1967);

Moore v. Prudential Insurance, 26 Utah 2d 430, 491 P.2d 227 (1971);

Parker v. California State Life, 85 Utah 595, 40 P.2d 175 (1935).

In this case, however, according to the figures as set forth in the main opinion, even though it appears that if the deceased had lived arrangements would have been made to pay the premium on the new policy, that had not been accomplished and, therefore, the conditions prerequisite to insurance coverage had not been fulfilled.

MAUGHAN, J., concurs in the concurring opinion of CROCKETT, J.

LaMar Duncan, Salt Lake City, for plaintiff and appellant.

James L. Sadler, Timothy R. Hanson, Salt Lake City, for defendant and respondent.

CROCKETT, Justice:

Plaintiff Janie Durham sued for damages suffered from being struck by defendant‘s car as she walked westward in the Social Hall Avenue crosswalk (about 50 South) on State Street, in Salt Lake City on the afternoon of September 30, 1975.

The district court granted defendant‘s motion for summary judgment for the reason that it appeared from the “submissions”¹ that the plaintiff‘s medical expenses did not exceed $500 and her cause of action was barred by 31-41-9(e), U.C.A.1953 of the “No-Fault Insurance Act.”² Plaintiff appeals challenging that ruling.

Because the issue just stated is the sole problem confronted here, the details of the accident as to fault or lack thereof of the parties is not material. Our concern is with things that happened after the accident. The plaintiff was taken to the hospital where she was examined and X-rays were taken. They showed nothing affirmative by way of broken bones or otherwise. She was then released and directed to contact her doctor, from whom she received further medical treatment for some bruises and contusions.

This action was filed October 9, 1975. On March 22, 1976, defendant took plaintiff‘s deposition. Therein, she stated that she no longer suffered any ill effects as a result of the accident and that she did not plan on going back for any further treatment. In the deposition she reported various hospital and medical expenses, including to a Dr. Hebertson, of $64 and a Dr. Woodruff of $20, totaling about $350.

Prior to the hearing on defendant‘s motion for summary judgment the plaintiff filed an affidavit making further averments: that after her deposition had been taken “she had recurring effects from the accident and that she was then examined by one Eugene L. Hawkins, a chiropractic orthopedic, from whom she was still receiving treatments.” Attached to the affidavit was a letter and a medical report from Dr. Hawkins and a statement of expenses showing an amount of $486.75 up to the date of September 16, 1976. It also included a recital that Dr. Hawkins “made a report showing damage to affiant‘s cervical spine” and that “such damage appears to be a direct result of the September 30, 1975 accident.” She also stated: “that her loss is a direct result of the accident and injury, including medical expenses, far exceed the sum of $500.”

Concerning the plaintiff‘s deposition and her affidavit, which stands undenied, these comments are pertinent:

We recognize the merit in defendant‘s argument that the affidavit must be of evidence which would be competent and material and thus admissible at the trial;³ and that therefore those portions of plaintiff‘s affidavit which purport to state Dr. Hawkins’ findings and opinion are hearsay and must be disregarded. It must also be conceded that plaintiff‘s averments seem somewhat ambiguous.

The summary judgment procedure has the desirable and salutary purpose of eliminating the time, trouble and expense of a trial when there are no issues of fact in dispute and the controversy can be resolved as a matter of law. Nevertheless, that should not be done on conjecture, but only when the matter is clear; and in case of doubt, the doubt should be resolved in allowing the challenged party the opportunity of at least attempting to prove his right to recover. For that reason the “submissions” should be looked at in the light favorable to her position;⁴ and unless the court is able to conclude that there is no dispute on material facts, which if resolved in her favor would entitle her to recover, the court should not summarily reject her claim and render judgment against her as a matter of law.⁵ Upon review we apply the same standard as that applied by the trial court.⁶

Under those rules disregarding the improper portions of the affidavit, when the remainder thereof is considered in conjunction with her deposition, it will be seen that plaintiff asserts that her medical expenses are in excess of $500; and this obviates the application of the statute quoted above. Accordingly, the summary judgment against her was improperly granted. It is necessary that it be vacated and that the case be remanded for further proceedings. Costs to plaintiff (appellant.)

MAUGHAN, WILKINS and HALL, JJ., concur.

ELLETT, Chief Justice (dissenting).

Mrs. Durham was knocked down by a car driven by Cheryl Margetts on September 30, 1975. She began this action nine days later wherein she prayed for damages as follows:

$2,500 general damages.

$750 medical expenses and other special damages.

$306.21 for lost wages.

Her deposition was taken on March 22, 1976, at which time she testified that she was entirely healed and had no cuts or lacerations.

Our statute provides for all insurance policies to provide coverage for medical expenses up to $2,000 per person and disability benefits of 85 percent of gross income, not in excess, however, of $150 per week for one year.¹ Section 9 of the chapter set out in footnote 1 provides that where there is no death, fracture, permanent disability, or permanent disfigurement, one injured in a motor vehicle collision cannot maintain an action unless he has incurred medical expenses in excess of $500.

Mrs. Durham testified in her deposition that her total medical, hospital and doctor bills amounted to $349.39 and that she was entirely cured of all injuries received in the collision.

A motion for summary judgment was made by Cheryl Margetts on April 12, 1976, but due to illness of appellant‘s counsel, it was not set for hearing until September 24, 1976. The day prior to the hearing, September 23, 1976, Mrs. Durham filed her own affidavit wherein she stated that she was suffering from recurring effects from the accident and that a chiropractic orthopedic doctor had made a thorough examination of her and prepared a report “showing damage to affiant‘s cervical spine which radiated across the top of the skull area; that such damage appears to be a direct result of the September 30, 1975, accident and injury.” She further stated that her “losses as a direct result of the accident and injury, including medical expenses far exceed the sum of $500.”

It readily appears that she did not state in her affidavit that the medical expenses exceeded $500; she merely said her losses, including medical expenses exceeded $500. The substance of the affidavit was deficient in that it did not comply with Rule 56(e), Utah Rules of Civil Procedure which provides that “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.”

It is patently apparent that the affidavit does not show that Mrs. Durham is qualified to relate her headaches to the accident and the statements regarding the findings of the chiropractor are pure hearsay and not admissible in evidence. The other evidence before the court at the hearing on the motion for summary judgment was the deposition of Mrs. Durham. I think the trial court ruled correctly when he granted the motion.

I desire to comment on the statement in the main opinion to the effect that “the submissions should be looked at in the light favorable to her position.” On motion for summary judgment, the court does not look at anything for or against either party. He simply looks to see if there is a conflict on a material issue. If there is no dispute on a material issue, then he applies the law to

the undisputed facts and grants or refuses to grant a summary judgment.

In this case, the judge could not find any dispute as to whether the medical expenses exceeded $500. I, therefore, think the judgment should be affirmed. The respondent should be awarded its costs on appeal.

Notes

1

1. This refers to pleadings, depositions, admissions and affidavits. 1. Laws of Utah, 1973, Chapter 55, Sec. 6.

2

2. That section provides:
No person . . . shall be allowed to maintain a cause of action for general damages arising out of personal injuries alleged to have been caused by an automobile accident except where there has been caused by this accident . . . (e) Medical expenses to a person in excess of $500.

3

3. Rule 56(e) U.R.C.P.;

Walker v. Rocky Mountain Recreation Corp., 29 Utah 2d 274, 508 P.2d 538 (1973);

Western States Thrift & Loan Co. v. Blomquist, 29 Utah 2d 58, 504 P.2d 1019 (1972).

4

4.

Henry v. Washiki Club Inc., 11 Utah 2d 138, 355 P.2d 973 (1960);

Frederick May & Co. v. Dunn, 13 Utah 2d 40, 368 P.2d 266 (1962);

Mermis v. Weeden & Co., 8 Ariz.App. 166, 444 P.2d 524 (1968);

Technicolor, Inc. v. Traeger, Hawaii, 551 P.2d 163 (1976).

5

5.

National American Life Ins. Co. v. Bayou Country Club, Inc. 16 Utah 2d 417, 403 P.2d 26 (1965);

Transamerica Title Ins. Co. v. United Resources, Inc., 24 Utah 2d 346, 471 P.2d 165 (1970); Rule 56(c) U.R.C.P..

6

6.

Hunter v. Farmers Ins. Group, Wyo., 554 P.2d 1239 (1976).

Case Details

Case Name: Durham v. Margetts

Court Name: Utah Supreme Court

Date Published: Nov 7, 1977

Citation: 571 P.2d 1332

Docket Number: 14858

Court Abbreviation: Utah