dissenting.
Rule 3:18 provides, “Summary judgment shall not be entered if any material fact is genuinely in dispute.” Nevertheless, the majority, in affirming entry of summary judgment, has determined from the “evidence” that the plaintiff may not proceed to trial because of a purported “admission” contained in pretrial documents.
I disagree. In my view, there is a genuine dispute upon a material fact — the 1983 actual cause of death.
Responding to a request for admission, the plaintiff stated that the May 21, 1983 automobile accident was “the traumatic event which caused Mr. Macaulay’s death, in the opinion of Dr. Switz.” In addition, the plaintiff stated that “Mr. Macaulay’s death is explainable as the direct result of the [automobile] accident whether or not the cyst caused by his fall down the stairs in 1982 had occurred.” Thus, the plaintiff represented that her evidence would establish that “the” traumatic event causing death was the auto *654accident and that death was explainable as “the” direct result of that accident. Reasonably to be inferred from those representations is the conclusion that death occurred “as the direct result of accidental bodily injury and independently of all other causes,” within the meaning of the insurance policy.
Contrary to the majority’s position, there was no requirement for the plaintiff, at the pretrial stage of the case, affirmatively to negate any “indirect” or contributing cause of death, if any existed. An assertion of “the”, and not “a”, direct cause was sufficient.
Relying exclusively on another statement by Dr. Switz in the pretrial documents that the auto accident merely “exacerbated” the decedent’s underlying condition, the majority has concluded there is no material fact genuinely in dispute. That information only indicates an inconsistency in the opinions of Switz and presents an evidentiary conflict. Questions of credibility of witnesses and conflicts in the evidence are within the province of the fact finder to be decided during a trial on the merits and not when ruling on a motion for summary judgment. Therefore, I would reverse the judgment of the trial court and permit the case to proceed to trial.
CARRICO, C.J., joins in dissent.