Opinion
[Copyrighted Material Omitted]
Oma H. Hester, Jr., Hickory, for plaintiff-appellee.
Randy D. Duncan, Hickory, for defendant-appellant.
Stephen M. Thomas, Hickory, for third-party defendant-appellee.
MARTIN, Judge.
Defendant contends that the court erred in granting summary judgment for Travelers because the evidence raises a genuine issue of material fact as to whether he was the third-party beneficiary of a contract between plaintiff and Travelers requiring Travelers to pay his truck repair bill.
When motion for summary judgment is made, the court must look at the record in the light most favorable to the party opposing the motion. However, when the motion is supported as provided in the rule, 'An adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits 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.' G.S. 1A--1, Rule 56(e). The affidavits contemplated by the rule, both those supporting and those opposing the motion, '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 the matters stated therein.' G.S. 1A--1, Rule 56(e).
In its answers to interrogatories, plaintiff stated that it never billed Travelers for the repair of defendant's truck and it never informed Bridges that it had made arrangements whereby Travelers would pay it for any such repairs. Contact between plaintiff and Travelers was limited to Travelers' verification that plaintiff's bill for repairs appeared to be proper and in order. There was no contract between the two and plaintiff assumed that Travelers would issue a settlement check made out jointly to Bridges and plaintiff because 'it is common practice for an insurance company to issue checks in settlement of claims that are made payable jointly to the insured, the repair agency, and the lien holder.' Hickory White's answers to interrogatories present no evidence whatsoever of any agreement such as Bridges alleged. Travelers' answers to interrogatories likewise are inconsistent with the existence of any such contract.
The motion for summary judgment having been made and properly supported, Bridges could not 'rest upon the mere allegation or denial of his pleading,' but was bound to 'set forth specific facts' showing the existence of a genuine issue for trial. Millsaps v. Contracting Co., 14 N.C.App. 321, 188 S.E.2d 663 (1972). Bridges' affidavit and other evidence failed to set forth specific facts showing the existence of the alleged contract, and summary judgment was properly rendered against him on this issue.
Defendant also contends that the pleadings, answers to interrogatories, and affidavits presented a triable issue of material fact as to whether the release signed by Bridges was procured through fraud.
In the instant case defendant Bridges, as third-party plaintiff, alleged in his complaint all the factual elements essential to constitute actionable fraud. Reading Bridges' complaint and answers to interrogatories, it appears that he signed the release under the representation that Travelers would pay the truck repair bill. Travelers, in its answer to the complaint and its answers to interrogatories, denied any misrepresentation, stated that the cost of repairing the truck was included in money paid to Bridges, and answered that it was not sure whether Bridges received a copy of the release at the time it was signed.
Travelers, as movant, has the burden of establishing that there is no genuine issue of fact on this point. The material produced by Travelers in support of its motion for summary judgment demonstrates that it cannot bear this burden of proof. Whether Travelers procured the release from Bridges through fraud was disputed by the parties and the conflicting evidence presented an issue of fact for the jury.
Defendant argues that the court erred in granting summary judgment for plaintiff because under Shearin v. Indemnity Co., 27 N.C.App. 88, 218 S.E.2d 207 (1975), summary judgment may not be granted for the party with the burden of proof when his right to recover depends on the credibility of his witnesses.
The case at bar is distinguishable from Shearin, because in Shearin the defendant against whom summary judgment was granted had expressly denied the material allegations in the complaint. In this case, defendant has not unambiguously denied the allegations of plaintiff's complaint, and has made admissions which are sufficient to establish his liability.
Finally, defendant contends that the court should not have granted plaintiff's motion for summary jugment because the motion did not state the number of the rule under which it was made. Defendant did not raise this issue when the motion was argued and therefore waived any objection to the form of the motion. This assignment of error is overruled.
The judgment as to the defendant's first claim against Travelers, based on contract, is affirmed.
The judgment as to defendant's second claim against Travelers, based on fraud, is reversed.
The judgment on plaintiff's claim against the defendant is affirmed.
Affirmed in part and reversed in part.
BROCK, C.J, and VAUGHN, J., concur.