Holloway v. Government Employees Insurance Co.

I respectfully dissent. Paul Holloway, plaintiff below appeals from the following:

"ORDER

"May 30, 1975 — Summary judgment rendered in favor of Defendant and against Plaintiff. Counter-affidavit filed by Plaintiff not sufficient under Rule 56(e) ARCP; therefor (sic) court find (sic) from pleadings and affidavit filed by Defendant that there is no genuine issue of fact in this cause and that the Defendant is entitled to judgment as a matter of law."

The appeal was to the Court of Civil Appeals. The amount claimed by plaintiff being in excess of ten thousand dollars ($10,000), the case was transferred to this court.

The sole issue presented for review is the sufficiency of plaintiff's affidavit filed in response to defendant's motion for summary judgment, and its affidavit in support thereof, to set forth "specific facts showing that there is a genuine issue for trial." Rule 56(e) ARCP.

The crucial fact dispositive of the case as a matter of law is whether a policy of liability insurance had been effectively cancelled by the mailing to, and receipt by, the insured of a notice of cancellation. Plaintiff's affidavit failed to controvert facts recited in the affidavit of defendant's employee to the effect that the policy had been cancelled by notice mailed to the insured. There was no error in entry of the order set out above. Although the trial court did not enter a judgment dismissing the plaintiff's action, it is evident the order was a "judgment" within the purview of Rule 58(b) ARCP and therefore appealable.

MERRILL and FAULKNER, JJ., concur. *Page 334