dissenting. I dissent from the affirmance of the trial court’s granting of the motion for summary judgment. As the majority opinion of this court recognizes, a summary judgment is an extreme remedy and should be granted only where the evidence submitted in support of the motion, when viewed most favorably to the party resisting it, establishes that there is no genuine issue of fact to be decided.
To determine if there is an issue of fact to be decided, let us first look at the insurance policy involved in this case. At the top of the first page under Item 1, the name of the insured is shown to be “Ray’s Tires, Highway 7, South, Smackover, Union Co., Arkansas.” Under Item 3 the figure $7,500.00 is typed to show the limits of the “Open Stock Burglary” coverage afforded by the policy. In Item 4 the location of the premises is shown to be the same as in Item 1, and the word “entire” is typed to show what part of the premises is “occupied by the insured.” In answer to the question as to the business conducted in the premises, the words “Tire Sales and Mounting” are typed. The pertinent part of the insuring agreement reads, “To pay for loss by burglary or by robbery of a watchman, while the premises are not open for business, of merchandise . . . within the premises.” The policy defines “premises” as “the interior of that portion of the building at the location designated in the declarations which is shown in the declarations as occupied by the insured in conducting the business. ...”
A deposition of the appellant, Donald Ray, d/b/a Ray’s Tires, was submitted by the insurance company in support of its motion for summary j udgment; In the deposition, Mr. Ray identified two pictures of the insured premises and the pictures are in the record. They show a building with an extension therefrom which has a roof supported by posts, and which is enclosed on one side by a wall of the building but is open on the other three sides. The pictures show a number of tires under this extension, and Mr. Ray testified that these tires were stored there with a chain threaded through each one and secured around one of the iron supports of the extension. He testified that when he arrived one morning he found that the locks on the chain had been cut and that the tires were gone. He said the theft occurred while the business was closed between six o’clock at night and eight o’clock the next morning.
The appellee cites J. B. Kramer Grocery Co., Inc. v. Glens Falls Insurance Co., 497 F.2d 709 (8th Cir. 1974), as holding that insurance policies are to be “construed in their plain, ordinary, and popular sense.” The case also says, “It is settled law in Arkansas, as elsewhere, that provisions of an insurance contract must be considered as a whole, keeping in mind the purpose for which the contract was written.” (Emphasis added.) The majority opinion of this court relies upon the policy language that defines “premises” as “the interior of that portion of the building at the location designated in the declarations,” but fails to explain why the word “building” does not include the extension — or shed as the opinion puts it — attached to the building. Since it is proper in deciding what the word “premises” means to consider the purpose for which the policy was issued, evidence of the insurance agent’s assurance that the policy he sold to appellant would cover the theft of the tires stored in the extension to the appellant’s building is of extreme importance. That evidence is found in appellant’s deposition where he said that before he purchased the policy involved in this case the insurance agent came to his place of business, looked at the tires stored in the extension to the building, and specifically stated that the policy would cover the theft of those tires stored at that place.
In Countryside Casualty Co. v. Grant, 269 Ark. 526, 601 S.W.2d 875 (1980), the court found a latent ambiguity in the policy involved “when considered in relation to the purpose and circumstances surrounding the making of the insurance contract,” even though the policy was not ambiguous on its face. The court said that parol evidence is admissible to bring out the latent ambiguity and to explain the true intention of the parties. Here, we have the insurance agent who sold the policy telling the insured that the policy would cover the very thing that happened. In the case of King v. Travelers Insurance Company, 84 N.M. 550, 505 P.2d 1226 (1973), the court said:
Finally, in addition to a question of ambiguity resulting from a mere reading of the policy, Appellants point out, and the record supports, the logical inference that the insurer’s agents were also in doubt as to the applicability of the pertinent provisions of the policy in question. Although Appellants do not argue that theories of waiver and estoppel are applicable here, Appellants’ argument is persuasive evidence of the policy’s ambiguity.
5.05 P.2d at 1232.
I do not agree with the majority opinion’s assertion that the policy in this case is clear and unambiguous and leaves no genuine issue of fact to be determined. I would reverse this case and remand it for trial.
Cloninger and Corbin, JJ., join in this dissent.