DISSENTING OPINION OF
MARUMOTO, J.I dissent. I would reverse and remand to the circuit court, but not to have a judgment entered in favor of appel*392lant. Remand would be for further proceedings.
The circuit court granted appellee’s motion for summary judgment, and denied a like motion for appellant, upon the piosture of the case at the time the motions were heard. In my opinion, the posture of the case at that time was such that neither appellant nor appellee was entitled to summary judgment.
For appellant to be entitled to summary judgment, the pleadings and other papers, which may properly be considered on its motion, must clearly show that appellee was a mere loss-payee under an open loss-payable clause and that there was no genuine issue of material fact on that question.
In directing the entry of summary judgment for appellant, this court states in its opinion:
“In the case before us, the policy itself indicated merely who the prior loss-payee was and the subsequently attached endorsement indicated that appellee had been substituted as the loss-payee.”
The sole support of the above statement is Exhibit G attached to appellee’s motion for summary judgment.
Exhibit G consists of 6 sheets of xerox copies of carbon copies of documents which appear to have originated in appellant’s office. The first sheet is entitled “Yacht Daily Report — Producer’s Copy”, reproduces the first page of the yacht policy used by appellant, and contains the entry: “Loss payable in U.S. currency to Assured and United California Bank, Encino, California.” The sixth sheet is entitled “Endorsement No. 3”, and has the following entry: “2. The following is added as Loss Payee: ARTHUR FRED, as Special Administrator of the Will Annexed of the Estate of RUTH FRED, Deceased.”
Under H.R.C.P., Rule 56(c), summary judgment is rendered upon “pleadings, depositions and admissions on file, together with the affidavits, if any”.
In this case, the only pleadings which may be considered on the motions for summary judgment is appellee’s complaint.
*393Exhibit G is not a part of the complaint. Nor is it a part of the affidavits on file, for it is not mentioned in any affidavit. It bears no signature, and there is no certificate as to authenticity on any of the sheets or on a separate paper. It is mentioned only in the appellee’s memorandum of points and authorities in support of his motion for summary judgment and in opposition to appellant’s motion for summary judgment.
Under those facts, I do not think that Exhibit G may be considered on either of the motions for summary judgment. H.R.C.P. Rule 56(c); Cane City Builders v. City Bank, 50 Haw. 472, 443 P.2d 145 (1968).
The complaint indicates that appellee might have been an additional assured, instead of being simply a loss-payee, in which case the wrongdoing of Conway would not have given a defense to appellant. Neal, Clark & Neal Co. v. Liverpool & London & Globe Ins. Co., 178 App. Div. 730, 165 N.Y.S. 204 (1917).
It alleged that, in consideration of the premium it received from Conway, appellant was obligated to issue its policy insuring Conway as the assured and any duly designated loss-payee “as an additional assured”. It further alleged that the loss-payee shown on the policy issued to Conway was United California Bank.
It also had attached thereto, as Exhibit C, a telegram from appellant’s agent to appellee’s attorney, which read: “ARTHUR FRED AS SPECIAL ADMINISTRATOR WILL ANEXED OF THE ESTATE OF RUTH FRED NAMED LOSS PAYABLE ON PACIFIC INDEMNITY INSURANCE FOR HAROLD CONWAY GULF FORTY EFFECTIVE MARCH 22, 1969”.
The allegations mentioned above raise, but do not answer, the question whether United California Bank was merely a loss-payee or whether it was an additional assured, besides being a loss-payee.
The telegram is not a paragon of clarity. Considered alone, it may indicate that appellee was named as a loss-payee under an open loss-payable clause. But considered *394together with the allegations of the complaint, it raises the question whether appellee was named as loss-payee in the place of United California Bank. If. appellee was named as loss-payee in the place of United California Bank, and if United California Bank was an additional assured, there was the possibility that appellee would also be an additional assured, besides being a loss-payee.
The record does not contain definite answers to the questions posed above. In the circumstance, it cannot be said that there was no genuine issue as to any material fact and that appellant was entitled to judgment as a matter of law.
With reference, to appellee’s motion for summary judgment, I think that the circuit court erred in granting the motion on the ground of estoppel.
In the complaint, appellee alleged that the terms and conditions of the policy were not known or disclosed to him until June 2, 1969, more than two months after the yacht was stolen. I cannot see any estoppel by the loss-payable designation in the telegram when appellee did not know the terms and conditons of the policy.
As I see this case, appellee may recover only if he can prove by relevant evidence either that he was an additional assured under the policy or that his designation as loss-payee was as a loss-payee to whom the law with respect to standard mortgage clause was applicable. The record does not conclusively establish that he was a loss-payee who had a right of recovery independent of, and not through, the named assured. So, here also, it cannot be said that there was no genuine issue of máterial fact and that appellee was entitled to judgment as a matter of law.