(dissenting) :
I dissent.
Plaintiff, on the basis of his pleadings, deposition, and certain admissions on file, together with his affidavit, moved for summary judgment, which the trial court granted. Defendant Insurance Company, which had filed an opposing affidavit, appeals on the ground that there was a genuine issue as to material facts and, therefore, the trial court erred in granting plaintiffs motion.
In his complaint, plaintiff alleged that on or about April 30, 1965, he was issued a binder on a boatowners policy of insurance and thereafter the policy itself for which he paid a premium1 and that on or about May 2, 1965, while on Utah Lake, his insured boat struck a submerged object, sank and was lost.
Defendant answered the complaint with a general denial. Subsequently, the defendant, in answer to plaintiffs Request for Admission, admitted the execution of the binder and delivery of the policy. Thereafter, it took plaintiff’s deposition and had an opportunity to examine him in detail as to the existence of the boat and the circumstances surrounding its loss.
Attached to plaintiffs motion for summary judgment was his affidavit in which he attested to the fact that he was alone in his boat and that it struck a submerged object and sank and that the boat, motor, and all personal property aboard were lost. He also attested to the fact that the defendant had refused to make any payment in accordance with the insurance policy although, at one time, • it indicated that it would.
Defendant filed an opposing affidavit of Keith Lambourne, its property claims supervisor. The problem arises as to whether this affidavit complies with Rule 56(e), *389U.R.C.P.,2 thus raising genuine issues of material facts which would preclude summary judgment.
Lambourne’s affidavit fails to meet the requirements of Rule 56(e). In it, he states that the defendant Company was not notified of the claimed loss on May 2, 1965, until May 17, 1965, when plaintiff filed a written report. However, if this statement amounts to a valid defense, which we doubt, it is to be noted that neither a copy of the report nor of the insurance policy was attached to the affidavit and is not in evidence.
If sworn or certified copies of all papers referred to in an affidavit are not attached as Rule 56(e) requires, they cannot be relied upon to raise a genuine issue of fact.3
The foregoing principle is equally applicable to affiant’s statement that plaintiff has failed to meet the conditions of the policy in that he has not proved that he had an insurable interest in the boat which was allegedly lost.
Lambourne further attests that after the report of the alleged loss, representatives of defendant went to the site on Utah Lake where plaintiff claimed his boat had sunk and, with the assistance of plaintiff, conducted a methodical search of the entire area, and no indications were found that there was a sunken craft in the area where plaintiff indicated his boat had sunk.
The foregoing is hearsay and, as such, would not be admissible at trial.4 An affidavit under Rule 56(e) “must be made on the personal knowledge of the affiant, set forth facts that would be admissible in evidence, and show affirmatively that the af-fiant is competent to testify to the matters stated therein.” 5
The affidavit of Lambourne continues with a statement that on numerous occasions representatives of defendant have requested that plaintiff produce proof of *390ownership, which'plaintiff has refused and' failed to do. This statement is subject to the same infirmities previously mentioned. In addition, the facts appear to be more in the nature of a summary than the type of evidentiary facts required under Rule 56 (e).6
Lambourne’s affidavit states that plaintiff refused to furnish information regard-, ing the facts of the accident and that on June 25, 1965, plaintiff physically interfered, with defendant’s investigation of the loss while affiant was attempting to talk with plaintiff’s father, at whose residence plaintiff had claimed that he had stored the boat. Affiant states that the father had advised him that he knew nothing of the existence of the boat or of the son’s ownership and was about to sign a statement to that effect when plaintiff physically took the paper from his father and tore it up.
The father’s alleged statement to affiant is hearsay and does not qualify under Rule 56(e).7 It is. further of significance that plaintiff in his deposition testified that his father was now dead and defendant, although it had knowledge of plaintiff’s alleged interference with . its investigation, elected not to pursue' the matter in its deposition of the plaintiff.
Lambourne’s affidavit concluded:
Due to plaintiff’s failure and refusal to cooperate and to present proof of ownership and proof of loss, the defendant has refused, and still refuses to make any payment of any kind .on the grounds and for the reason that the plaintiff has failed and refused to show that he had an insurable interest, and that he suffered any loss in the event he had an insurable interest.
The foregoing, consists of factual conclusions and arguments. It does not come within the ambit of Rule 56(e), i. e., it does not “set forth specific facts showing that there is a genuine issue for trial.”
Was the award of summary judgment to plaintiff “appropriate” P
Plaintiff in his deposition described the manner in which he acquired the boat, i. e., he observed it on a parking lot and con-' tacted the owner through the information displayed thereon. . He paid $2,000 in cash to the former owner, who gave him a receipt that is in the possession of the de-. fendant. Defendant’s agent inspected the boat and copied the motor number therefrom. Plaintiff’s mother is alive, and he stored the boat at her residence.
All of the foregoing facts contained in the- deposition could have been met by defendant in opposing affidavits and created triable issues.
The uncontradicted testimony from plaintiff’s deposition establishes that he had an *391insurable interest.8 “The issuance of the policy and the payment of premiums establishes prima facie the liability of the insurer. * * * ” Peterson v. Western Casualty and Surety Co., 19 Utah 2d 26, 29, 425 P.2d 769 (1967).
Does plaintiff’s sworn version of the loss of the boat in both his deposition and affidavit entitle him to a summary judgment? Yes.
* * * If, however, the moving party presents evidence which would entitle him to a directed verdict if not controverted and the opposing party does not discredit it, the opposing party must at least specify some opposing evidence that he can present which will change the result. In other words, the opposing party must show a plausible ground for his claim or defense. Facts set out in the moving party’s affidavit showing that he is entitled to judgment must be. accepted as true when not met by counter-affidavits or testimony. The mere denial of the moving party’s contentions, without showing any facts admissible in evidence, raises no issue of fact. The opposing party must show how he will support his contentions that issues of- fact are'present.
But he need not submit all his evidence and it is sufficient if he shows that he has evidence of a substantial nature, as distinguished from legal conclusions, to dispute that of the moving party on ma-^ terial factual issues.
The rationale of these cases seems to be the moving party has ■ the burden of showing that there is no genuine issue as to a material fact and that he is entitled to judgment as a matter of law, but that when he has made a prima facie showing to this effect the opposing party cannot defeat a motion for summary judgment and1 require a trial by a bare contention that an issue of fact exists. He must show that evidence is available which would justify a trial of the issue.9
Finally, it is not correct that summary judgment must be denied where the case turns on facts peculiarly within the knowledge of the moving party. So long as the party opposing the motion has had full access to the facts — as normally he will through the discovery procedure— the motion should be granted if he has *392failed to show any genuine issue as to a material fact.10
In the instant action, defendant’s basic assertion, although cast in several legal arguments, has been that plaintiff’s claim is incredible, that in fact the boat never existed and that it never sank. However, as with any other fact, it takes more than vehement denials to place credibility in issue. To avoid summary judgment the opposing party must disclose “specific facts” ; this defendant has failed to do.
From the foregoing, it is evident that defendant’s contention that the trial court erred in denying its motion to alter and amend the judgment is without merit.
In the majority’s opinion’s synopsis of plaintiff’s deposition, there are certain omissions which are significant.
Although plaintiff could not recall the name of the town, he knew the boat was previously registered in California. These papers were on the boat and were lost when it sank. The plaintiff did receive a receipt for the cash he paid from the vendor, which defendant has retained and significantly has refused to tender as evidence. His wife knew after the purchase that he had acquired the boat, although this matter is hearsay. . His wife knew of the cash in the tin box but did not know the exact amount; this money was derived largely from the sale of a home they had previously owned. The plaintiff did not have a bank account but dealt strictly on a cash basis. The plaintiff did not immediately report the loss of the boat because he first made several attempts to locate it himself. Plaintiff’s mother also lived at tlic father’s residence and was still alive and available to testify about whether she observed the boat.
The mouse in the can situation cited by the majority is not analogous to the instant case. The insurance company could have indicated by affidavit of one of its agents that it was unable after a diligent search to locate the person whose name appeared on the receipt. Since defendant demanded the receipt shortly after the claimed loss thus indicating doubts as to the validity of plaintiff’s claim, it could have procured affidavits from personnel who worked in the shopping center as to the issue of whether a boat had been displayed on the parking lot. The company could have interrogated plaintiff’s mother as to her observations concerning the existence of the boat. Defendant could have presented the affidavit of its agent who plaintiff claimed inspected the boat and copied the motor number therefrom.
*393Upon a review of the entire record the defendant has, in effect, asserted that plaintiff is attempting to commit fraud without defendant’s compliance with Rule 9(b), U.R.C.P., that averments of fraud shall be stated with particularity. The majority opinion has adopted this theory by its reversal of the judgment of the trial court. The basic issues upon trial will be whether plaintiff has falsely represented his ownership and loss of a boat to his insurance carrier. “ * * * fraud is a wrong of such nature that it must be shown by clear and convincing proof and will not lie in mere suspicion or innuendo.” 11 Defendant has not only failed to allege fraud but also has not tendered any admissible evidence in support thereof.
This case constitutes a dangerous precedent, wherein an insurance company through insinuation and harassment can defeat at its election any claim for loss sustained by an insured. Furthermore, the majority opinion has nullified Rule 56(e) just as effectively as if it had been specifically repealed by this court from the Rules of Civil Procedure.
TUCKETT, J., concurs in the dissenting opinion of CALLISTER, J.. Photostatic copies of the binder and the front page of the policy were attached to plaintiff’s Request for Admissions.'
.“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supported or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.” [Emphasis added.]
. Washington Post Co. v. Keogh, 125 U.S. App.D.C. 32, 365 F.2d 965, 20 A.L.R.3d 972, 980 (1966) ; 6 Moore’s Federal Practice, § 56.11(3), p. 2170.
. 6 Moore’s Federal Practice § 56.22(1), pp. 2806-2809.
. Id., p. 2803.
. 3 Barron and Iioltzoff, Federal Practice and Procedure, § 1237, p.-165.
. Footnote 4, supra.
.See See. 33-19-4, U.C.A.1953; National Farmers Union Property and Casualty Co. v. Thompson, 4 Utah 2d 7, 12, 286 P.2d 249, 61 A.L.R.2d 635 (1955), where, in this court held that the insured has an insurable interest if he has a-substantial economic interest, and the nature of his interest or the status of his title or possession is immaterial.
. 3 Barron and. Holteoff, Federal Practice and Procedure, § 1235, pp. 146-149; also see Dupler v. Yates, 10 Utah 2d : 251, 269-270, 351 P.2d 624 (1960), and James v. Honaker Drilling, Inc., (C.A. 10, 1958) 254 F.2d 702.
. 3 Barron and Holtzoff, Federal Practice and Procedure, § 1232.2, p. 114; also see Bolack v. Underwood, (C.A.10, 1965) 340 F.2d 816, 819.
. Lundstrom v. Radio Corporation of America, 17 Utah 2d 114, 117-118, 405 P.2d 339, 341, 14 A.L.R.3d 1058 (1965).