dissenting.
I fully concur with Justice Johnstone’s well-reasoned defense of the rule-of-law against the majority opinion’s adherence to the rule-of-result. I write separately to lament the demise of Civil Rule 56.
The issue in this case is whether Mares-ca misrepresented to Karen Roethke whether the PALIC policy which was issued to her and her husband would provide coverage for her husband’s after-the-fact work-related injury. Such coverage would have been provided had the policy included the optional “occupational coverage.” Unfortunately, the Roethkes neither applied for nor paid a premium for that coverage. They blame Maresea for that omission and seek to hold the insurer vicariously liable. However, Karen Roethke admitted in her pre-trial deposition that when Maresea attempted to explain to her that she could purchase the occupational coverage for an additional premium of $15.00, she interrupted him and told him that she did not want the coverage. As we used to say, she thereby “testified herself (and her husband) out of *134court.” While acknowledging Roethke’s fatal admission, slip op. at 3, the majority opinion nevertheless concludes: “Whether Maresca was prevented by Karen from fully explaining the coverage of the group policy is a factual issue for the jury to resolve in determining if he misrepresented the coverage to her.” Slip op. at 9-10. In other words, it makes no difference that Karen admitted under oath that she prevented Maresca from doing precisely what she claims he failed to do, because she will have the opportunity to recant that admission at trial; or, perhaps, the jury will be so sympathetic with her husband’s plight that they will give him the money anyway.
Civil Rule 56.08 provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, stipulations, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Thus, if the plaintiff admits that the fact essential to his case did not occur, e.g., that Maresca could not have affirmatively misrepresented to Karen Roethke that her policy contained occupational coverage because Roethke prevented him from explaining that coverage to her, then there is no genuine issue of material fact and the movants are entitled to judgment as a matter of law.
However, in Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., Ky., 807 S.W.2d 476 (1991), this Court held that summary judgment is only proper “where the movant shows that the adverse party could not prevail under any circumstances.” Id. at 480 (emphasis added). Since even a party who has otherwise admitted himself out of court during pre-trial discovery might recant that admission at trial, most trial judges assumed after Steelvest that summary judgment was reserved to interpreting contracts and such, and that the absence of a genuine issue of material fact was insufficient to support a summary judgment. Simply put, any case which could not be settled was required to be tried.
But in Hubble v. Johnson, Ky., 841 S.W.2d 169 (1992), the defendant was granted summary judgment solely on the basis of his own affidavit setting forth his version of the material facts. Because the plaintiff did not file a counter-affidavit, summary judgment was granted. On appeal, this Court held that “a party opposing a properly supported summary judgment motion cannot defeat that motion without presenting at least some affirmative evidence demonstrating that there is a genuine issue of material fact requiring trial.” Id. at 171. In other words, the respondent did not meet his burden to show that there was a genuine issue of material fact. Nothing was said of the movant’s burden to show that the respondent could not prevail at trial under any circumstances.
Most trial judges assumed that Hubble represented a retreat from Steelvest and a-return to the literal language of CR 56.03. Not so. Today’s decision reaffirms that summary judgment is dead in Kentucky, at least with respect to determining whether there exists a genuine issue of material fact. Civil Rule 56 was a useful tool for sweeping meritless lawsuits out of our overburdened trial courts, especially where, as here, the plaintiff has admitted the essential fact which renders his case devoid of merit. I lament its passing.
GRAVES and JOHNSTONE, JJ„ join this dissenting opinion.