stating that “[t]he Nanty–Glo rule means the party moving for summary judgment may not rely solely upon its own testimonial affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine issues of material fact[,]” and that “[w]hen there is uncertainty surrounding a conceded fact, it is the role of the . . . fact[-]finder to determine which facts have been adequately prove[n] and which must be rejected”
How later courts described this case
- stating that “[t]he Nanty–Glo rule means the party moving for summary judgment may not rely solely upon its own testimonial affidavits or depositions, or those of its witnesses, to establish the non-existence of genuine issues of material fact[,]” and that “[w]hen there is uncertainty surrounding a conceded fact, it is the role of the . . . fact[-]finder to determine which facts have been adequately prove[n] and which must be rejected”
- holding that at summary judgment the court must consider “all expert testimony and reports submitted by the non-moving party or provided during discovery” and noting that any dispute over the expert’s conclusions must be left to the trier of fact”
- stating with regard to calculation of damages, “[a]lthough the factfinder may not render a verdict based on sheer conjecture or guesswork, it may use a measure of speculation in estimating damages[]”
- authorizing a full refund of deceitfully obtained life insurance premiums, when vendor paid out no death benefits
Written by the judges who cited it.
The opinion
CONCURRING AND DISSENTING OPINION BY
STRASSBURGER, J.:
I agree with the Majority that summary judgment in this matter must be reversed and the case remanded to the trial court.
The trial judge granted summary judgment not because Plaintiffs did not present a sufficient quantum of proof of fraud or unfair trade practice but because the court found that Plaintiffs suffered no damages.
In so doing the trial judge erred in two respects. First it set off against Plaintiffs’ damages the benefits they received from having life insurance coverage. The problem with this is, if they can be believed, they did not ask for nor want such coverage. They should not be charged with this benefit that they neither asked for nor wanted.
Secondly, in calculating Plaintiffs’ net loss to be zero, the trial court relied on the oral testimony of a defense witness. As *599 the Majority properly holds, this violates the Nanty-Glo rule.
Because remand is necessary, I must point out several areas that I disagree with the Majority. First, the Majority holds that Husband-Plaintiff’s deposition testimony that he knew that the dividends were not guaranteed did not constitute an admission barring that portion of his claim. You can call a cat a dog, but it is still a cat, and Husband-Plaintiff’s statement sure looks like an admission to me.
Once it is determined that NYLIC is not entitled to credit for the life insurance benefits that Plaintiffs neither asked for nor wanted, and that the trial court violated Nanty-Glo, I do not know why the Majority delves any further into damages, with liability still to be determined.
However, since the Majority does discuss these issues, I am compelled to respond. Even though Plaintiffs admitted that the average return on a NYLIC single premium annuity from 1988 to 2009 was 5.29%, the Majority says additional interest up to 6% would be “appropriate in light of the purposes of the UTPCPL and the alleged fraud perpetrated on [Plaintiffs].” Majority Opinion, at 588. The interest rate is not dependent on whether Defendants have been good citizens or bad.
Finally, the Majority presents without deciding the issue of whether if treble damages are awarded under the UTPCPL, the trebling should be applied to the gross damages or to the net damages after offsets. I am not at all sure why this issue is broached at all at this state, but if the intention is to give guidance to the trial judge, it is perfectly apparent to me that the trebling must apply to the net amount.