dissenting.
I dissent.
Green brought suit against General Accident, his insurer, on a home owners policy which provided coverage against theft. The policy contained proof of loss and time to sue provisions, neither of which were complied with by Green. General Accident requested admissions from Green to the effect that Green had failed to comply with these two provisions. Green’s response to the request for admissions was 168 days late. Green sought no extension of time within which to respond to the request for admissions. General Accident moved for summary judgment which the trial court denied. At trial, the trial court found that Green did not comply with the time to sue provision, but concluded that General Accident had waived this provision along with the provision governing proof of loss. The trial court then entered judgment for Green. I would reverse and remand for entry of summary judgment in favor of General Accident.
We have consistently held that the policy provisions we are dealing with are valid and enforceable. See Aetna Life Ins. Co. v. Nix, 85 N.M. 415, 512 P.2d 1251 (1973). By not responding or obtaining an extension of time within which to respond to the request for admissions, Green admitted each matter for which admissions were sought. See SCRA 1986,1-036 (Cum.Supp.1987).
Green’s failure to timely respond to the request for admissions entitles General Accident to summary judgment as a matter of law. See SCRA 1986, 1-056 (Cum.Supp. 1987). The majority’s reliance on Home Indemnity Co. v. Reynolds & Co., 38 Ill.App.2d 358, 187 N.E.2d 274 (1962) is misplaced. Home Indemnity deals with the legal fiction of merger rather than the procedural consequences of noncompliance with Rule 36(a).
The majority’s reasoning defeats the policy provisions concerning proof of loss and time to sue, and entices noncompliance with SCRA 1986, 1-036 by allowing a party refusing to provide necessary information to benefit by his inaction.
This case should be remanded to the trial court for entry of summary judgment in favor of General Accident.