dissenting.
I do not agree with the majority that plaintiff adduced satisfactory evidence to rebut Valley’s showing that it did not consent to the settlement of plaintiffs underlying action against Trythall and Allstate. Accordingly, I would affirm the summary judgment.
The majority correctly notes that “the most favorable evidence of consent” is contained in plaintiffs attorney’s affidavit pertaining to his conversation with Valley’s adjuster, Weahunt. The affidavit relates that Weahunt agreed to a settlement between plaintiff and Allstate, but instead of the *676$45,000 that plaintiff informed Weahunt he was prepared to accept from Allstate:
“Weahunt stated that if [plaintiff] did not receive the policy limits from the Allstate policy, i.e. $50,000, Valley would not entertain an UIM claim by [plaintiff]. I told Weahunt that if I could get Allstate to increase the settlement to $50,000,1 would get back in touch with him.”
See 147 Or App at 673. There is no evidence that plaintiff either got Allstate to increase its settlement offer or got back to Weahunt, and it is undisputed that plaintiff settled the underlying action for $45,000.
The attorney’s affidavit, which is consistent with the other evidence in material respects, could not be plainer: Weahunt did not consent to a settlement of $45,000, but indicated that Valley would consent if plaintiff were able to settle with Allstate for $5,000 more.
The majority nevertheless finds a disputed question of material fact as to whether Valley consented to the $45,000 settlement. It reasons that the attorney and Weahunt were actually concerned with the policy’s exhaustion provision rather than or as much as with the consent-to-settlement provision that they appeared to be discussing. Piecing the two provisions together, the majority concludes that it was inferable:
“Weahunt’s representation that ‘if [plaintiff] did not receive the policy limits from the Allstate policy, * * * Valley would not entertain an UIM claim by [plaintiff]’ pertained not to any withholding of consent — which was actually given— but to Valle/s refusal to waive the exhaustion provision].]” 147 Or App at 673.
Thus, the majority concludes that a trier of fact could find that Weahunt actually consented to the $45,000 settlement, and that his statement that Valley would not entertain plaintiffs claim if he settled for less than $50,000 did not indicate a withholding of consent to the lower settlement amount, but pertained instead to a different policy requirement that neither party said a word about in the course of a conversation that, from beginning to end, related to a proposed settlement for which plaintiff sought Valleys consent.
*677Juries are not as imaginative as the majority is, and one of the reasons for the summary judgment procedure is to prevent them from being that imaginative.1 For the above reasons, I respectfully dissent.
In its response to this dissenting opinion, the majority states that I have failed to address the sentence in the attorney’s affidavit that “Weahunt consented to [plaintiff] giving a full release to Trythall/Allstate and settling [plaintiffs] claim with Trythall/Allstate.” 147 Or App at 675 n 6. However, the reason I have not singled that sentence out for isolated attention is that, unlike the majority, I think that that sentence must be read together with the two that follow it, which reflect the attorney’s and Weahunt’s mutual understanding that no settlement of less than $50,000 would be acceptable. Stated differently, neither I nor, in my view, a reasonable factfinder could conclude from the affidavit as a whole that consent to any settlement short of $50,000 was given. Perhaps the reason why I think that a rational factfinder could not view the evidence in the way that the majority does is that the factfinder could not reasonably base a finding on a single sentence, taken out of context, as the majority does.