#### JOE C. LINEBERGER v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY

No. 7127DC421

(Filed 4 August 1971)

1. Evidence §§ 28.5, 48; Rules of Civil Procedure § 56— letters from physicians— incompetency on motion for summary judgment

Letters written by various physicians relating to their examination and treatment of plaintiff, which were produced by plaintiff for defendant’s inspection and copying under court order pursuant to G.S. 1A-1, Rule 34, were not competent for consideration by the court in passing upon defendant’s motion for summary judgment, where (1) the letters were not under oath and could therefore not be considered as affidavits, and (2) the letters contain opinions which would be competent in court only if the physicians were established to be medical experts, and there was no admission that any of the witnesses were medical experts and none of the letters contain information which would support a finding that they were.

2. Rules of Civil Procedure § 56— motion for summary judgment — burden of proof — burden of opposing party

The burden is on the party moving for summary judgment to establish the lack of a triable issue of fact; where the evidentiary matter supporting the moving party’s motion is insufficient to satisfy his burden of proof, it is not incumbent upon the opposing party to present any competent counter-affidavits or other materials. G.S. 1A-1, Rule 56.

Appeal by plaintiff from Mull, District Judge, 22 February 1971 Session of District Court held in GASTON County.

On 13 November 1968, defendant issued to plaintiff a comprehensive accident indemnity policy providing, among other things, for indemnity in the event injuries “are sustained by the Insured and within twenty days from date of accident, independently of all other causes, wholly and continuously disable the Insured from performing any and every duty pertaining to his occupation. ...”

Plaintiff brought this action on 29 March 1970 seeking recovery under the above provision on the ground he was totally and permanently disabled as a result of injuries sustained in an automobile collision on 21 March 1969.

Upon motion of defendant made under Rule 34 of the North Carolina Rules of Civil Procedure, the court ordered plaintiff to produce for defendant’s inspection and copying medical reports and records relative to the action. These records, which *136plaintiff produced pursuant to the court’s order, consist essentially of letters written by various physicians relating to their examination and treatment of plaintiff. Some of the letters tend to show that plaintiff is not totally and permanently disabled, and further, that whatever disability he may have, resulted in part from injuries sustained in a 1952 motorcycle accident.

Defendant moved for summary judgment “in that the pleadings show that there is no genuine issue as to any material fact. ...” The court allowed the motion and expressly stated in its judgment that the medical reports and records produced by plaintiff were considered in determining that the motion should be allowed. Plaintiff appealed.

Tim L. Harris by Don H. Bumgardner for plaintiff appellant.

Hollowell, Stott & Hollowell by L. B. Hollowell, Jr., for defendant appellee.

GRAHAM, Judge.

[1] The only evidence possibly justifying the entry of summary judgment for defendant arose from statements made by several examining physicians in the letters produced by plaintiff for defendant’s examination and copying. These letters were not under oath and could therefore not be considered as affidavits. Ogburn v. Sterchi Brothers Stores, Inc., 218 N.C. 507, 11 S.E. 2d 460.

The letters were lacking in still another respect. G.S. 1A-1, Rule 56 (e) provides: “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.” (Emphasis added.) The letters in question contain various opinions which the physicians would be competent to relate in court only if they first were established to be medical experts. Stansbury, N. C. Evidence 2d, §§ 133, 135. There was no admission before the court that any of the witnesses were medical experts and none of the letters contain information which would support a finding that they were.

*137 [2] The burden is on the party moving for summary judgment to establish the lack of a triable issue of fact. Pridgen v. Hughes, 9 N.C. App. 635, 177 S.E. 2d 425. Where the evidentiary matter supporting the moving party’s motion is insufficient to satisfy his burden of proof, it is not incumbent upon the opposing party to present any competent counter-affidavits or other materials. Griffith v. William Penn Broadcasting Co., (E.D. Pa. 1945), 4 F.R.D. 475. Here defendant did not carry its burden of proof by establishing by competent evidence that there was no triable issue of fact. Hence, judgment granting summary judgment to defendant may not be affirmed, even though defendant failed to come forward with any evidence showing that he is entitled to recover as alleged in the complaint.

Reversed.

Judges Brock and Vaughn concur.