{
  "id": 8547817,
  "name": "JOE C. LINEBERGER v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY",
  "name_abbreviation": "Lineberger v. Colonial Life & Accident Insurance",
  "decision_date": "1971-08-04",
  "docket_number": "No. 7127DC421",
  "first_page": "135",
  "last_page": "137",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "218 N.C. 507",
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  "last_updated": "2023-07-14T18:50:27.087613+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Brock and Vaughn concur."
    ],
    "parties": [
      "JOE C. LINEBERGER v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY"
    ],
    "opinions": [
      {
        "text": "GRAHAM, Judge.\nThe 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\u2019s 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.\nThe letters were lacking in still another respect. G.S. 1A-1, Rule 56 (e) provides: \u201cSupporting 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.\u201d (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, \u00a7\u00a7 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.\nThe 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\u2019s 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.\nReversed.\nJudges Brock and Vaughn concur.",
        "type": "majority",
        "author": "GRAHAM, Judge."
      }
    ],
    "attorneys": [
      "Tim L. Harris by Don H. Bumgardner for plaintiff appellant.",
      "Hollowell, Stott & Hollowell by L. B. Hollowell, Jr., for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "JOE C. LINEBERGER v. COLONIAL LIFE & ACCIDENT INSURANCE COMPANY\nNo. 7127DC421\n(Filed 4 August 1971)\n1. Evidence \u00a7\u00a7 28.5, 48; Rules of Civil Procedure \u00a7 56\u2014 letters from physicians\u2014 incompetency on motion for summary judgment\nLetters written by various physicians relating to their examination and treatment of plaintiff, which were produced by plaintiff for defendant\u2019s 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\u2019s 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.\n2. Rules of Civil Procedure \u00a7 56\u2014 motion for summary judgment \u2014 burden of proof \u2014 burden of opposing party\nThe 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\u2019s 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.\nAppeal by plaintiff from Mull, District Judge, 22 February 1971 Session of District Court held in GASTON County.\nOn 13 November 1968, defendant issued to plaintiff a comprehensive accident indemnity policy providing, among other things, for indemnity in the event injuries \u201care 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. ...\u201d\nPlaintiff 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.\nUpon motion of defendant made under Rule 34 of the North Carolina Rules of Civil Procedure, the court ordered plaintiff to produce for defendant\u2019s inspection and copying medical reports and records relative to the action. These records, which plaintiff produced pursuant to the court\u2019s 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.\nDefendant moved for summary judgment \u201cin that the pleadings show that there is no genuine issue as to any material fact. ...\u201d 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.\nTim L. Harris by Don H. Bumgardner for plaintiff appellant.\nHollowell, Stott & Hollowell by L. B. Hollowell, Jr., for defendant appellee."
  },
  "file_name": "0135-01",
  "first_page_order": 161,
  "last_page_order": 163
}