dissenting.
I concur with that portion of the majority opinion that finds the trial court erred in granting summary judgment in favor of plaintiff Watson on its claim against defendant Price. I do not agree with the majority’s conclusion that plaintiff Watson was entitled to summary judgment as to defendant Price’s counterclaim *634against Watson, and I dissent from that portion of the majority’s opinion.
In its counterclaim defendant Price alleged:
41. That Watson undertook to process the claims made by Price in all of the above-described claims and, Price, is informed and believes and therefore alleges that, in the alternative to the foregoing, that Watson did on numerous occasions negligently fail to properly process the claims submitted by Price and, in the event, Aetna is found to have properly denied claims by Price as a result of the failure of Watson to properly process said claims and to that extent Price is entitled to recovery from Watson for its damages aforesaid[.]
Plaintiff Watson did not file an answer to defendant Price’s counterclaim. Instead, plaintiff filed only a motion to dismiss the counterclaim, alleging that the counterclaim failed to state a claim upon which relief can be granted. In its judgment granting summary judgment for Watson, the trial court stated that it had considered affidavits, pleadings and all discovery conducted. In our review of those documents, I find nothing which would indicate that plaintiff Watson denied the allegation made in defendant Price’s counterclaim. In her deposition, Carolyn Greene, the branch manager of Watson Insurance, testified that it was the practice of defendant Watson to take the claims for their insureds, such as Price, and submit them to the company. She further testified that it was the duty of Watson Insurance to “protect and try to advance our insureds and help them out all we can.”
In his deposition, Thomas C. Watson, apparently the owner of the plaintiff insurance agency, made reference to a disputed claim filed by Price with Aetna. And, while Watson avers that he tried to assist Price in that claim filed with Aetna, he never denies the specific allegations made by Price in his verified counterclaim.
■ Thus, if any party is entitled to summary judgment on Price’s counterclaim, it would be defendant Price because plaintiff Watson has never denied the allegations made by Price and has never presented any evidence contrary to the verified allegations made by defendant Price in the counterclaim. I find that the correct ruling for the trial court would be to find that the Price counterclaim does state a claim for relief and that plaintiff Watson’s motion *635under Rule 12(b)(6) should be denied. It was simply too early for the trial court to try to convert that motion to a motion for summary judgment. I vote to reverse summary judgment for Watson on defendant Price’s counterclaim and to remand the counterclaim to . the trial court for further proceedings.