(concurring and dissenting):
$22 I concur with the majority that the Homeowners' insurance policy excludes losses due to arson; but I do not believe that a genuine issue of material fact exists regarding the cause of the fire.
{23 Rule 56 of the Utah Rules of Civil Procedure, which governs motions for sum«mary judgment, states that the nonmoving party
may not rest upon the mere allegations or denials of the pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. Summary judgment, if appropriate, shall be entered against a party failing to file such a response. *810give assistance, and they terrorized her. A man coming home, unloading his baggage in his home, they robbed. A young woman walking down the street, who was out of gas, in the night, coming home from work, they attempted to rob her. She didn't have anything, so they couldn't take it. Random acts of violence, for example, on [one of the victims]. This is just outside the pizza store on 13th there. They pull up and point a gun at him and demand money. He only has five dollars, but he gives it to them. And on and on and on.
*803Utah R. Civ. P. 56(e). In addition, "a party puts the legitimacy of a fact, supported by affidavits, depositions, or other sworn testimony, in dispute by presenting equally meaningful, sworn testimony in the form of affidavits, depositions, or interrogatories, A generic denial is inadequate." Johnson v. Hermes Assocs., 2005 UT 82, ¶ 21, 128 P.3d 1151 (citation omitted). Similarly, "[to sue-cessfully defend against a motion for summary judgment, the nonmoving party must set forth facts 'sufficient to establish the existence of an element essential to that party's case'" Anderson Dev. Co. v. Tobias, 2005 UT 36, ¶ 23, 116 P.3d 323 (quoting Burns v. Cannondale Bicycle Co., 876 P.2d 415, 419 (Utah Ct.App.1994) (quotations and citation omitted)). Here, Bear River's motion was supported by the affidavits of two fire inspectors, establishing that the fire was a result of arson. The Homeowners failed to present any evidence contradicting the opinions of the fire inspectors. Therefore, the Homeowners have not "set forth specific facts showing that there is a genuine issue for trial," and summary judgment is proper. Utah R. Civ. P. 56(e). Speculation by the court of appeals about what the ultimate finder of fact may perceive from the Homeowners' lack of evidence does not satisfy this requirement. Cf. Kent v. Pioneer Valley Hosp., 930 P.2d 904, 907 (Utah Ct.App.1997) (stating that "[when the proximate cause of an injury is left to speculation, the claim fails as a matter of law" and summary judgment is appropriate (quotations and citation omitted)).
[ 24 Moreover, to the extent that the majority relies on Neely v. Bennett, 2002 UT App 189, 51 P.3d 724, that reliance is misplaced. The majority cites dicta in Neely for .the proposition that the Homeowners defeated Bear River's summary judgment motion simply by pointing out slight inconsistencies in the fire inspectors' depositions. I disagree. Neely dealt with a motion for directed verdict after the jury had heard all of the evidence. See id. at 110-15. The Neely court had already affirmed the trial court on the grounds that Neely "failed in her duty to marshal" when it gratuitously observed that the appellee's failure to rebut the opinions of Neely's expert witnesses did not establish causation as a matter of law. Id. at TT 12-18. See, e.g., State v. Daniels, 2002 UT 2, ¶ 35, 40 P.3d 611 (defining dicta as "not critical to the holding"). Similarly, Dizon v. Stewart, 658 P.2d 591 (Utah 1982), deals with the jury's ability to weigh expert testimony after all the evidence is in. See id. at 597. Because I do not believe Neely and Dixon are sound authority here, I would determine this case based upon rule 56(e) of the Utah Rules of Civil Procedure and its related case law. See Utah R. Civ. P. 56(e); Johnson, 2005 UT 82 at ¶ 21, 128 P.3d 1151.
T25 For the foregoing reasons, I would affirm summary judgment in favor of Bear River.