Bennion v. Allstate Ins

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Linda Bennion (Garcia),
Plaintiff and Appellant,

v.

Allstate Insurance Company,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981519-CA

F I L E D
April 6, 2000
  2000 UT App 91 -----

Third District, Salt Lake Department
The Honorable Stephen L. Henriod

Attorneys:
Franklin Richard Brussow, Salt Lake City, for Appellant
Paul J. Simonson and Tim Dalton Dunn, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

ORME, Judge:

Defendant supported its motion for summary judgment by affidavit. Plaintiff did not refute defendant's averments by affidavit, deposition, or other sworn testimony. The only document presented by plaintiff that contested defendant's position was the letter written by Dr. Kevin Lambert. The letter was merely attached as an exhibit to plaintiff's legal memorandum. A summary judgment motion can be opposed by affidavits and any "[s]worn or certified copies" of papers that are referred to in the affidavit. Utah R. Civ. P. 56(e). The letter was not in the form of an affidavit, nor was it sworn to or certified. Thus, it did not meet the requirements of Rule 56(e). Accordingly, the facts set forth in defendant's affidavits stand uncontroverted.

While there may well be another side to the story, the only side of the story properly before the trial court was that told by defendant. Defendant presented sworn affidavits showing its decision to terminate plaintiff's PIP benefits was reached only after it had made a careful and extensive review of plaintiff's medical and psychological treatment history and had obtained further medical and expert diagnosis of plaintiff's condition. According to defendant's submission, none of plaintiff's medical providers believed that further treatment of her shoulder or head injuries would be helpful or necessary. Thus, on the record before the trial court, it can indeed be said, as a matter of law, that plaintiff's claim for continuing PIP benefits was at least "fairly debatable" and that defendant did not act in bad faith in terminating those benefits. Moreover, because PIP benefits include only "the reasonable value of all expenses for necessary medical, surgical, X-ray, dental, rehabilitation, including prosthetic devices, ambulance, hospital, and nursing services," Utah Code Ann. § 31A-22-307(1)(a) (1999) (emphasis added), defendant's uncontroverted averments establish, as a matter of law, that plaintiff was entitled to no additional PIP benefits under the terms of the applicable insurance policy. Thus, defendant was entitled to summary judgment on both the "bad faith" and contract claims.

Finally, we reject plaintiff's contention that summary judgment was improper because she had not completed discovery. At the time of her opposition to defendant's summary judgment motion, plaintiff failed to submit to the trial court an affidavit, pursuant to Rule 56(f), stating why she was unable to present affidavits sufficient to support her opposition to the motion and how discovery would help in filling that void. See Utah R. Civ. P. 56(f). Absent such an affidavit, there was no reason for the court to continue the summary judgment motion and grant plaintiff additional time for discovery.(1)

Affirmed.
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Judith M. Billings, Judge

1. Even if plaintiff had submitted a Rule 56(f) affidavit, it is unlikely that the trial court would have granted her more time to conduct discovery. Plaintiff had almost two years to conduct discovery between the time she filed her complaint and when defendant filed its Motion for Summary Judgment. Although plaintiff failed to conduct any discovery during this time, she had ample opportunity in which to do so had she so desired.