GODWIN SPRAYERS, INC.
v.
UTICA MUTUAL INSURANCE CO.
No. 8211DC7.
Court of Appeals of North Carolina.
November 16, 1982.*844 Lytch & Thompson by Benjamin N. Thompson, Dunn, for plaintiff-appellant.
Womble, Carlyle, Sandridge & Rice by Keith A. Clinard, Winston-Salem, for defendant-appellee.
ARNOLD, Judge.
Summary judgment under G.S. 1A-1, Rule 56(c) is proper when there is "no genuine issue as to any material fact ...." It is a "drastic remedy ... [that] must be used with due regard to its purposes and a cautious observance of its requirements in order that no person shall be deprived of a trial on a genuine disputed factual issue." Kessing v. Mortgage Corp., 278 N.C. 523, 534, 180 S.E.2d 823, 830 (1971). This remedy "does not authorize the court to decide an issue of fact. It authorizes the court to *845 determine whether a genuine issue of fact exists." Vassey v. Burch, 301 N.C. 68, 72, 269 S.E.2d 137, 140 (1980) (Emphasis in original). Summary judgment should be denied "[i]f different material conclusions can be drawn from the evidence." Spector Credit Union v. Smith, 45 N.C.App. 432, 437, 263 S.E.2d 319, 322 (1980).
In Koontz v. City of Winston-Salem, 280 N.C. 513, 186 S.E.2d 897, reh. denied, 281 N.C. 516 (1972), the court defined two terms that are determinative on a summary judgment question.
An issue is material if the facts alleged would constitute a legal defense, or would affect the result of the action, or if its resolution would prevent the party against whom it is resolved from prevailing in the action. The issue is denominated "genuine" if it may be maintained by substantial evidence.
280 N.C. at 518, 186 S.E.2d at 901 (Emphasis added). In addition to no issue of fact being present, to grant summary judgment a court must find "that on the undisputed aspects of the opposing evidential forecasts the party given judgment is entitled to it as a matter of law." 2 McIntosh, N.C. Practice and Procedure § 1660.5 (2d Ed., Phillips Supp. 1970). See also, W. Shuford, N.C. Civil Practice and Procedure § 56-7 (2d Ed. 1981).
Our examination of the record and briefs leads us to conclude that summary judgment was improperly granted here. The issue of fact that must be resolved is whether plaintiff's actions, and those of its agent Godwin, put it "in charge of" the USDA plane. We cannot say as a matter of law that the issue is clear. The task of an appellate court in ruling on a summary judgment motion is only to see if the issue of fact exists, not to determine the resolution of the issue.
But we do note some principles that the trial court on remand should consider. According to our case law, if terms in an insurance policy are "uncertain or capable of several reasonable interpretations, the doubts will be resolved against the insurance company and in favor of the policyholder." Woods v. Nationwide Mutual Insurance Co., 295 N.C. 500, 506, 246 S.E.2d 773, 777 (1978). See also, 7 Strong's N.C. Index 3d Insurance § 6.2 (1977).
In cases like this one, if an insured shows that his loss is apparently covered by the policy, "the burden is [then] upon the insurer to prove that the loss arose from a cause of loss which is excepted or for which it is not liable...." Flintall v. Insurance Co., 259 N.C. 666, 670, 131 S.E.2d 312, 315 (1963). See also, 44 Am.Jur.2d Insurance § 1938 (1982).
Research has not revealed cases in North Carolina that interpret the policy clause before us. However, other courts have dealt with similar clauses with varying results. See generally, Annot., 86 A.L.R. 3d 118 (1978). 12 Couch on Insurance 2d § 44A:15 and 21 (Rev. ed. 1981). Compare Fish v. Nationwide Mutual Insurance Co., 126 Vt. 487, 236 A.2d 648 (1967) (held covered since insured not "in charge" of damaged property because he did not have the right to exercise dominion and control over it) with Columbia Helicopters, Inc. v. Transport Indemnity Co., 428 F.2d 1385 (9th Cir.1970) (held no coverage because "in charge of" exclusion refers to physical possession with mechanical control which insured had in the case).
Reversed and remanded.
HILL and JOHNSON, JJ., concur.