Seay v. Allstate Ins. Co.

296 S.E.2d 30 (1982)

Wayne SEAY v. ALLSTATE INSURANCE COMPANY and Jack King.

No. 8121SC1361.

Court of Appeals of North Carolina.

October 19, 1982.

*31 Kennedy, Kennedy, Kennedy & Kennedy by Harold L. Kennedy, III and Harvey L. Kennedy, Winston-Salem, for plaintiff-appellant.

Womble, Carlyle, Sandridge & Rice, by Daniel W. Donahue and Keith A. Clinard, Winston-Salem, for defendants-appellees.

WELLS, Judge.

In the usual summary judgment situation, the burden is on the movant to show to the trial court that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law. Lowe v. Bradford, 305 N.C. 366, 289 S.E.2d 363 (1982), Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976). The procedure under the rule being designed *32 to allow a preview or forecast of evidence or proof of the parties in order to determine whether a jury trial is necessary and to allow the trial court to "pierce the pleadings" to determine whether any genuine factual controversy exists, Lowe, supra, it is therefore incumbent on the trial court to consider all of the papers before him on hearing the motion in order to make an appropriate disposition of the motion.[1]

All of the fraudulent or intentionally wrongful acts alleged by plaintiff in his verified complaint were alleged upon information and belief and therefore do not meet the "personal knowledge" requirements of Rule 56(e). Metal Works, Inc. v. Heritage, Inc., 43 N.C.App. 27, 258 S.E.2d 77 (1979). Plaintiff did not offer a personal affidavit or deposition.

The only witness whose testimony deals with the alleged representations of defendant King to plaintiff on 5 July 1977 was NCNB's loan officer, Watson. In his deposition, Watson testified as to the events in his office on 5 July. He testified that plaintiff applied for an automobile loan, that he informed plaintiff as to the bank's requirement for collision coverage; that plaintiff informed Watson plaintiff had insurance with Allstate and that King was his agent; that while plaintiff was in Watson's office, plaintiff made a phone call, and as a result of that call, Watson obtained plaintiff's insurance policy number and that the only information he had as to plaintiff's insurance coverage was what plaintiff told him. Thus, it is clear that Watson would not be competent to testify as to anything that King did or said on 5 July 1977. See Patterson v. Reid, 10 N.C.App. 22, 178 S.E.2d 1 (1970).

Edward Ballard's deposition testimony indicates that he had no personal knowledge of the events of July 5, 6, or 7, and thus he would not be competent to testify as to King's alleged acts on those dates. Ballard did testify that he went with plaintiff to see King in September or October (of 1977) and that in his presence, King made the statement to plaintiff that "If anything come (sic) up and we go to court, I'll deny everything that I said". This statement attributed to King by Ballard is not probative of any facts at issue in this case, but if offered at trial, would only bear upon King's credibility.

We are persuaded that the forecast of evidence before the trial court shows that plaintiff has failed to properly support his allegations of fraudulent conduct, Lowe, supra, and that there is no forecast of competent evidence which would raise an issue of punitive damages in this case. See Murray v. Insurance Co., 51 N.C.App. 10, 275 S.E.2d 195 (1981). Accordingly, the judgment of the trial court is

Affirmed.

VAUGHN and WEBB, JJ., concur.

[1] Although the record on appeal in this case does not make it clear that the depositions before the trial court were produced by the plaintiff, the opposing party, the briefs of the parties seem in agreement that such was the case, and we therefore presume that defendants, the movants, relied on plaintiff's deposition of defendant King to provide defendants' forecast of evidence or proof in support of their motion for partial summary judgment.