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Anglin v. Harris5/22/2000
JO-037C
Tracy Anglin filed a personal injury action against Larry Harris and his employer, Simbeck, Inc., on October 15, 1998 for injuries allegedly sustained on October 15, 1996 when the tractor-trailer Harris was driving collided with Anglin's car. Harris and Simbeck, Inc. [collectively, "Simbeck"], answered in November 1998, alleging that the accident actually occurred on October 14, 1996 and asserting that the two-year statute of limitation expired before the lawsuit was filed. In April 1999, Simbeck moved for summary judgment, which the trial court granted. Anglin appeals. We affirm.
1. Anglin contends that the trial court erred in granting summary judgment when a genuine issue of material fact exists as to the date on which the accident occurred. We disagree.
The date of the accident is material because, if the accident occurred on October 15, 1996, the filing date of October 15, 1998 falls within the limitation period; if the accident occurred on October 14, 1996, the suit is time-barred.
In support of its motion for summary judgment, Simbeck submitted a Newnan Hospital admission summary showing Anglin was admitted to the emergency room and treated for accident-related injuries on October 14, 1996. The summary includes an "ACCIDENT DATE" of October 14, 1996. Simbeck also submitted a bill from a radiologist showing a typewritten service date of October 14, 1996, a hospital radiology report showing the date of exam as October 14, 1996, and a hospital bill showing the same admission date. In addition, Simbeck relied on a hospital consent to treatment form signed by Anglin's husband and a witness, on which the date "10-14-96" is handwritten three times. An emergency department medical record also shows a treatment date of October 14, 1996; the date appears in both typed and handwritten form. A typewritten emergency room note shows the date of visit as October 14, 1996.
Simbeck also presented the affidavit of the officer who arrived on the accident scene. In his affidavit, the officer states that the collision occurred on Monday, October 14, 1996, contrary to his erroneous entry on a written police report showing the incident occurred on Monday, October 15, 1996.
In opposition to Simbeck's motion for summary judgment, Anglin relied on the written accident report as originally prepared by the police officer, in which he indicates that the accident occurred on Monday, October 15, 1996. Anglin also relies on her own affidavit and her deposition in which she states that she is "sure" the accident occurred on October 15, which she says was a Monday, Tuesday or Wednesday, and that the medical records and the officer's affidavit are all wrong.
When a moving party makes a prima facie showing that it is entitled to judgment as a matter of law, the opposing party must come forward with rebuttal evidence at that time or suffer judgment against it; the adverse party may not rest on mere allegations or denials, but its response must set forth specific facts showing there is a genuine issue for trial.
Simbeck met its burden of showing that the accident occurred on October 14, 1996. Anglin, on the other hand, failed to meet her burden of showing that it happened on October 15, 1996. Despite her conclusory statement that she is sure of the date, she equivocated on this issue. In her affidavit, she says the accident happened on October 15, then adds "I do not know if it was a Monday, Tuesday or Wednesday. But I do remember it being October 15, 1996. The calendar may show this to be Tuesday, but I do not agree." On deposition, when asked why she insists that the accident occurred on October 15, she simply replies "That's t
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