Her v. Davis, April 16, 2008 (Diaz)(unpublished)
This opinion appeared yesterday on the Business Court website. It’s not a Business Court case (it’s actually a car accident case), but it presents a good lesson on what it takes to properly oppose a Motion for Summary Judgment.
The issue was whether Defendant’s insurance carrier had accepted a settlement offer from Plaintiff’s counsel before the lawsuit was filed, thus barring the lawsuit from proceeding.
The Defendant presented an Affidavit from the insurance carrier stating that a lawyer representing the Plaintiff had offered to settle the case for $10,000, and that the carrier had accepted the offer.
Plaintiff disputed this, but didn’t present any Affidavit in support of her position. Instead, Plaintiff tried to rely upon her own responses to Requests for Admission served by the Defendant, in which she said that the true facts were that it was Defendant’s carrier who had made the $10,000 offer, and that her lawyer had rejected it.
The Court held that "while admissions of a party-opponent are not hearsay, ‘a party may not utilize his own admissions at trial.’" Since evidence that would not be admissible at trial may not be considered on a Motion for Summary Judgment, there was no competent evidence contradicting Defendant’s properly supported factual position. The Court also refused to rely on letters presented by Plaintiff’s counsel containing unsworn facts.
As the Court put it, "the bottom line is that neither Plaintiff nor any member of the firm representing Plaintiff have submitted Affidavits refuting the facts set forth" in the Affidavit submitted by Defendant. On the record before it, the Court granted Defendant’s Motion for Summary Judgment and found that the case had been settled on the terms described by the Defendant.