Holloway v. Government Employees Insurance Co.

329 So. 2d 529, 295 Ala. 328, 1976 Ala. LEXIS 1923

• Court: Supreme Court of Alabama
• Decided: March 26, 1976
• Docket: SC 1444
• Status: Published

Opinions

PER CURIAM.

We reverse and remand the summary judgment rendered in favor of the defendant insurer because it did not bear the burden placed upon it (as the movant) to show that it was entitled to summary judgment — i. e., that there is no genuine issue as to a material fact. Ray v. Midfield Park, Inc., 293 Ala. 609, 308 So.2d 686 (1975); Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co., 293 Ala. 719, 310 So.2d 200 (1975). We refer the reader to the dissent for a copy of the judgment.

There is a genuine issue as to a material fact, in our judgment, as to whether there was a policy of liability insurance in effect on the date of the accident. Putting the issue another way, we cannot say as a matter of law that the policy was cancelled before the accident occurred. Fleming v. Alabama Farm Bureau Mut. Cas. Ins. Co., supra.

“On motion for summary judgment, summary judgment is not appropriate unless it appears that the non-moving party could not prevail under any set of conceivable circumstances.” Fleming, supra.

Plaintiff alleged in his complaint that Mrs. Davis, with whom he had the accident, was insured. Defendant insurer denied this allegation.

In an affidavit supporting the motion for summary judgment, defendant insurer states that a policy of insurance with the Davises was cancelled and notice of cancellation mailed December 12, 1973, a copy thereof being attached. The cancellation notice attached states that “PAYMENT OF THE AMOUNT INDICATED ABOVE PRIOR TO THE CANCELLATION DATE WILL VOID THIS CANCELLATION NOTICE AND - YOUR POLICY IN EFFECT. ...”

Further, the notice adjures: “ACT NOW TO PREVENT CANCELLATION OF YOUR INSURANCE PREMIUM.”

In reply thereto, plaintiff proffered his affidavit which read, inter alia:

“. . . That at the time of the accident, Faye Anna Davis was insured with Government Employees Insurance Company, a corporation, under Policy 662-41-13-3 as evidenced by general change endorsement to the policy, a copy of which is attached hereto and marked Exhibit‘A’ . . . .”

* * * * * *

“Affiant further says that on November 1, 1973, Faye Anna Davis mailed a payment to the defendant, Government Employees Insurance Company, a corporation, in the amount of $124.12, a copy of the check is attached hereto and marked Exhibit ‘B’. A copy of the policy adjustment notice is also attached hereto and marked Exhibit ‘C’.”

Although the plaintiff’s affidavit is not a model of clarity, nor does it contain more than a modicum of allegations we consider that it is sufficient for summary judgment purposes in this case. To hold it subject to the insurer’s criticisms that it is not based on personal knowledge and fails to state facts would require that we take a hypercritical view of the meaning of Rule 56(e) A.R.C.P.

We think the pleading allegations, supporting and countervailing affidavits make out a genuine issue as to a material fact — was the policy cancelled as the insurer contends, or was it in full force and effect, as plaintiff contends?

REVERSED AND REMANDED.

HEFLIN, C. J., and BLOODWORTH, JONES, ALMON and SHORES, JJ., concur. MERRILL, MADDOX, FAULKNER and EMBRY, JJ., dissent.