Shearin v. National Indemnity Company

PARKER, Judge.

This appeal presents the question whether under the Constitution and laws of this State a summary judgment may be granted in favor of the party having the burden of proof when his right to recover depends upon the credibility of his witnesses. On authority of Cutts v. Casey, 278 N.C. 390, 180 S.E. 2d 297 (1971), we conclude that the answer is No.

G.S. 1A-1, Rule 56(a) clearly contemplates the possibility of granting a summary judgment in favor of a “party seeking to recover upon a claim, counterclaim, or crossclaim,” and normally such a party has the burden of proof. Subsection…