{ "id": 8550737, "name": "DON EAST v. RESERVE INSURANCE COMPANY", "name_abbreviation": "East v. Reserve Insurance Co.", "decision_date": "1973-06-13", "docket_number": "No. 7321SC182", "first_page": "452", "last_page": "455", "citations": [ { "type": "official", "cite": "18 N.C. App. 452" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "4 F.R.D. 475", "category": "reporters:specialty", "reporter": "F.R.D.", "case_ids": [ 3774178 ], "opinion_index": 0, "case_paths": [ "/frd/4/0475-01" ] }, { "cite": "177 S.E. 2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "pin_cites": [ { "page": "428" } ], "opinion_index": 0 }, { "cite": "9 N.C. App. 635", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553228 ], "year": 1970, "pin_cites": [ { "page": "639-640" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0635-01" ] }, { "cite": "180 S.E. 2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "829" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "year": 1971, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] } ], "analysis": { "cardinality": 373, "char_count": 5642, "ocr_confidence": 0.465, "pagerank": { "raw": 1.8101713625523435e-07, "percentile": 0.7176735014280755 }, "sha256": "ca7f74a950f8d93b412cf8b75316699246b57b99f86342f3dfb1cce555aae486", "simhash": "1:be5621aef7d6bc7d", "word_count": 936 }, "last_updated": "2023-07-14T21:14:36.293491+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Campbell and Baley concur." ], "parties": [ "DON EAST v. RESERVE INSURANCE COMPANY" ], "opinions": [ { "text": "BRITT, Judge.\nPlaintiff seeks to recover under the \u201cHit-and-Run Automobile\u201d provision of his policy which provides in pertinent part as follows: \u201cThe term \u2018hit-and-run automobile\u2019 means an automobile, other than one in which an insured is a passenger, which causes an accident resulting in bodily injury to an insured, arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, * * (Emphasis added.) Plaintiff does not deny that it is incumbent on him to show that there was physical contact between the motorcycle he was riding and the alleged hit and run automobile.\nIn Kessing v. Mortgage Corp., 278 N.C. 523, 533, 180 S.E. 2d 823, 829 (1971), we find: \u201cThe purpose of summary judgment can be summarized as being a device to bring litigation to an early decision on the merits without the delay and expense of a trial where it\u2019 can be readily demonstrated that no material facts are in issue. * * * Evidence which may be considered under Rule 56 includes admissions in the pleadings, depositions on file, answers to Rule 38 interrogatories, admissions on file whether obtained under Rule 36 or in any other way, affidavits, and any other material which would be admissible in evidence or of which judicial notice may properly be taken.\u201d\nOn the question of summary judgment, this court in Pridgen v. Hughes, 9 N.C. App. 635, 639-640, 177 S.E. 2d 425, 428 (1970), said:\n\u201cThe burden is on the moving party to establish the lack of a triable issue of fact. The evidentiary matter supporting the moving party\u2019s motion may not be sufficient, to satisfy his burden of proof, even though the opposing party fails to present any competent counter-affidavits or other materials. Griffith v. William Penn Broadcasting Co. (E.D. Pa. 1945) 4 F.R.D. 475. \u2018But if the moving party by affidavit or otherwise presents materials which would require a directed verdict in his favor, if presented at trial, then he is entitled to summary judgment unless the opposing party either shows that affidavits are then unavailable to him, or he comes forward with some materials, by affidavit or otherwise, that show there is a triable issue of material fact. He need not, of course, show that the issue would be decided in his favor. But he may not hold back his evidence until trial; he must present sufficient materials to show that there is a triable issue.\u2019 Moore\u2019s Federal Practice, 2d Ed., Vol. 6, \u00a7 56.11(3), p. 2171.\u201d (Emphasis added.)\nIn his deposition, plaintiff stated: \u201cI\u2019m right much at a loss as to what happened. I was riding down the highway, and I woke up in the hospital some days later.\u201d He further stated that he was on the right side of the road, going around a curve to his left, but he does not remember anything else until he woke up \u201ca time or two\u201d in the ambulance. He did not remember a car approaching him from the opposite direction.\nIn his affidavit, Archer stated he and plaintiff and two other persons were riding motorcycles on the day in question. Plaintiff was first in line, Archer was behind him and the other two men were considerably behind Archer. Archer observed plaintiff enter the curve but lost sight of plaintiff as he rounded the curve. When Archer got into the curve, he observed a red Chevrolet sliding broadside, completely in Archer\u2019s lane of travel. Archer drove his motorcycle off the side of the road to avoid a collision and thereafter saw plaintiff lying unconscious in the ditch on the right-hand side of the road; plaintiff\u2019s motorcycle, totally demolished, was in the ditch on the left side of the road.\nWe hold that the materials produced at the hearing were not sufficient to show that there was a triable issue on the question of physical contact between plaintiff\u2019s motorcycle and the alleged hit and run automobile. Consequently, the judgment appealed from is\nAffirmed.\nJudges Campbell and Baley concur.", "type": "majority", "author": "BRITT, Judge." } ], "attorneys": [ "Laurel 0. Boyles for plaintiff appellant.", "Hudson, Petree, Stockton, Stockton & Robinson by J. Robert Elster for defendant appellee." ], "corrections": "", "head_matter": "DON EAST v. RESERVE INSURANCE COMPANY\nNo. 7321SC182\n(Filed 13 June 1973)\nInsurance \u00a7 69 \u2014 hit-and-run accident \u2014 no physical contact established \u2014 summary judgment for insurer proper\nTrial court properly entered summary judgment for insurer in plaintiff\u2019s action to recover under the \u201chit-and-run automobile\u201d provision of his policy where plaintiff\u2019s evidence failed to show that his accident and resulting injuries occurred through actual physical contact with an alleged hit-and-run automobile.\nAppeal by plaintiff from Gambill, Judge, 9 October 1972 Session of Forsyth Superior Court.\nThis is a civil action instituted by plaintiff on 30 June 1972 in which he seeks to recover from defendant, his insurer, under uninsured motorists coverage applicable to the motorcycle upon which plaintiff was riding at the time of his injuries. Defendant denies liability, contending (1) that there was no contact between plaintiff\u2019s motorcycle and any other vehicle, and (2) that there is no evidence of actionable negligence on the part of the operator of any other vehicle.\nOn 4 August 1972 defendant caused plaintiff\u2019s deposition to be taken and thereafter moved for summary judgment for the reason that there is no genuine issue as to any material fact and defendant is entitled to judgment as a matter of law.\nA hearing was held on the motion at which time the court had before it the complaint, answer, deposition of plaintiff, affidavit of one Bob Archer, and the insurance policy. Following the hearing summary judgment was entered in favor of defendant from which plaintiff appealed.\nLaurel 0. Boyles for plaintiff appellant.\nHudson, Petree, Stockton, Stockton & Robinson by J. Robert Elster for defendant appellee." }, "file_name": "0452-01", "first_page_order": 476, "last_page_order": 479 }