with whom COLBERT, C.J. joins, concurring in part and dissenting in part:
"[ 1 I concur in the majority opinion only to the extent that it determines the trial court erred in granting summary judgment to the plaintiff/appellee, City of Choctaw (Choctaw). Nevertheless, I dissent to its reversal of course and remand of the cause for the sole purpose of entering judgment in favor of the defendant/appellant, Oklahoma Municipal Assurance Group (OMAG), on an issue of fact where there are conflicting material facts which must be addressed by the trier of fact on a level playing field.
12 The majority orders entrance of summary judgment in favor of OMAG based on OMAG's having limited its defense to the landowner's suit and its failure to have "misled" Choctaw concerning the scope of its coverage or defense. In so doing, it ignores other, competing facts which weigh in favor of Choctaw, i.e. OMAG's: having undertaken defense of the cause; its indication that the elimination of federal civil rights causes of action would allow coverage to the municipality at least to some extent; participation in the settlement conference in which it agreed to pay $250,000.00; and it's concession that it should be considered an insurer.
13 Questions of waiver and estoppel are ordinarily ones of fact.1 Summary judgment is proper only when the pleadings, affidavits, depositions, admissions, or other evidentiary material establish that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.2 Undoubtedly, there are disputed material facts in this cause. It is inappropriate for this Court to usurp the duty of the trier of fact to consider those facts and determine whether OMAG may be estopped to deny coverage.
T4 The trial court erred when it entered judgment in favor of Choctaw in the face of disputed material facts. The majority does so here as it places itself in the shoes of the *1168fact finders. I will do neither and so concur in part and dissent in part to the majority opinion.
. Robinson v. Texhoma Limestone, Inc., 2004 OK 50, ¶10, 100 P.3d 673. See also, Barringer v. Baptist Healthcare of Oklahoma, 2001 OK 29, ¶26, 22 P.3d 695.
. Sullivan v. Buckhorn, 2005 OK 41, ¶36, 119 P.3d 192; Bogart v. CapRock Communications Corp., 2003 OK 38, ¶20, 69 P.3d 266; Prichard v. City of Oklahoma City, 1999 OK 5, ¶19, 975 P.2d 914.