Durham v. Margetts

¶1(dissenting).

¶2Mrs. Durham was knocked down by a car driven by Cheryl Margetts on September 30, 1975. She began this action nine days later wherein she prayed for damages as follows:

$2,500 general damages.

$750 medical expenses and other special damages.

$306.21 for lost wages.

¶3Her deposition was taken on March 22, 1976, at which time she testified that she was entirely healed and had no cuts or lacerations.

¶4Our statute provides for all insurance policies to provide coverage for medical expenses up to $2,000 per person and disability benefits of 85 percent of gross income, not in excess, however, of $150 per week for one year.1 Section 9 of the chapter set out in footnote 1 provides that where there is no death, fracture, permanent disability, or permanent disfigurement, one injured in a motor vehicle collision cannot maintain an action unless he has incurred medical expenses in excess of $500.

¶5Mrs. Durham testified in her deposition that her total medical, hospital and doctor bills amounted to $349.39 and that she was entirely cured of all injuries received in the collision.

¶6A motion for summary judgment was made by Cheryl Margetts on April 12, 1976, but due to illness of appellant’s counsel, it was not set for hearing until September 24, 1976. The day prior to the hearing, September 23,1976, Mrs. Durham filed her own affidavit wherein she stated that she was suffering from recurring effects from the accident and that a chiropractic orthopedic doctor had made a thorough examination of her and prepared a report “showing damage to affiant’s cervical spine which radiated across the top of the skull area; that such damage appears to be a direct result of the September 30, 1975, accident and injury.” She further stated that her “losses as a direct result of the accident and injury, including medical expenses far exceed the sum of $500.”

¶7It readily appears that she did not state in her affidavit that the medical expenses exceeded $500; she merely said her losses, including medical expenses exceeded $500. The substance of the affidavit was deficient in that it did not comply with Rule 56(e), Utah Rules of Civil Procedure which provides that “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 the matters stated therein.”

¶8It is patently apparent that the affidavit does not show that Mrs. Durham is qualified to relate her headaches to the accident and the statements regarding the findings of the chiropractor are pure hearsay and not admissible in evidence. The other evidence before the court at the hearing on the motion for summary judgment was the deposition of Mrs. Durham. I think the trial court ruled correctly when he granted the motion.

¶9I desire to comment on the statement in the main opinion to the effect that “the submissions should be looked at in the light favorable to her position.” On motion for summary judgment, the court does not look at anything for or against either party. He simply looks to see if there is a conflict on a material issue. If there is no dispute on a material issue, then he applies the law to *1336the undisputed facts and grants or refuses to grant a summary judgment.

¶10In this case, the judge could not find any dispute as to whether the medical expenses exceeded $500. I, therefore, think the judgment should be affirmed. The respondent should be awarded its costs on appeal.