See 3 Harvey, Indiana Practice 56.10 (1988). In McNabb v. Mason (1970), 148 Ind. App. 233, 264 N.E.2d 623, this court observed that: In Anderson v. Liberty Lobby, Inc. (1986), 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202, Justice White, in writing for the majority, observed:
denied. However, any doubt concerning the existence of a genuine issue of material fact so as to preclude the granting of summary judgment must be resolved against the defendants here. McNabb v. Mason (1970) 148 Ind. App. 233, 264 N.E.2d 623. Rarely is a negligence case an appropriate case for disposal by summary judgment, especially when it is disputed whether the conduct of defendants measures up to the standard of due care. Bassett v. Glock (1977) 2d Dist., 174 Ind. App. 439, 368 N.E.2d 18. McNabb, supra, 264 N.E.2d at 626, states: "Even where the trial judge may surmise that the proponent of a motion for summary judgment is likely to prevail at the trial, this is not a sufficient basis for refusing the respondent to a motion for summary judgment his day in court with respect to any genuine issue as to a material fact."
" McNabb v. Mason (1970), 148 Ind. App. 233, 240-41, 264 N.E.2d 623, 627. The purpose underlying the summary judgment procedure is to terminate those causes of action which have no factual dispute and which may be determined as a matter of law.
The arguable improbability of recovery by Musgrave against Madonna under facts and circumstances as suggested by the summary judgment proceeding before us, does not justify affirmance of that judgment if there exists a genuine issue of fact as to the relationship of agency or master servant or partnership upon which liability might be predicated; or if from the undisputed facts conflicting inferences may be drawn. Central Realty, Inc. v. Hillman's Equipment, Inc. (1969), 253 Ind. 48, 246 N.E.2d 383; Furniss v. Waters (1971), 150 Ind. App. 566, 277 N.E.2d 48; McNabb v. Mason (1970), 148 Ind. App. 233, 264 N.E.2d 623. As stated in Central Realty, Inc. v. Hillman's Equipment, Inc., supra:
Because the second proceeding required a greater level of proof, the first proceeding could not "conclusively decide" issues to be decided in the second proceeding. SeeMcNabb v. Mason, 148 Ind. App. 233, 241, 264 N.E.2d 623, 627 (1970) : [A] trial court upon summary judgment motion cannot, nor can we upon appeal, prejudge a plaintiff's ability to sustain his, or in this instance, her burden of proof upon the factual issues.
Thus, this court is concerned only with the existence of factual questions, and not with a litigant's ability to sustain the burden of proof upon those issues. Id. (citing McNabb v. Mason (1970), 148 Ind. App. 233, 241, 264 N.E.2d 623, 627). To determine at this stage that the issues in dispute are (or are not) sufficient to prove the case clearly and convincingly would be to invade the province of the trier of fact.
Terminating by summary disposition those cases which need no factual resolution, or which are spurious, is laudable. Terminating by summary disposition those cases which present merely an unlikelihood of ultimate success is impermissible. McNabb v. Mason (1970) 148 Ind. App. 233, 264 N.E.2d 623. Here, the policy dispute centers upon the exclusionary clause.
Evidence, pleadings, and inferences must be viewed in a light most favorable to the party against whom summary judgment is sought (South Tippecanoe), Wozniczka v. McKean, (1969) 144 Ind. App. 471, 247 N.E.2d 215, and the burden is on the proponent (Defendants) to show that no material issue of fact exists. McNabb v. Mason, (1970) 148 Ind. App. 233, 264 N.E.2d 623. If there is any doubt as to the existence of a genuine issue of material fact, such doubt must be resolved against the party moving for summary judgment (Defendants). McGinnis v. Public Service Co. of Indiana, Inc., (1974) 161 Ind. App. 1, 313 N.E.2d 708.
Wozniczka v. McKean (1969), 144 Ind. App. 421, 247 N.E.2d 215, and the burden is on the proponent to show that no material issue of fact exists. McNabb v. Mason (1970), 148 Ind. App. 233, 264 N.E.2d 623. If there is any doubt as to the existence of a genuine issue of material fact, such doubt must be resolved against the party moving for summary judgment. McGinnis v. Public Service Co. of Indiana, Inc. (1974), 161 Ind. App. 1, 313 N.E.2d 708, and authorities cited therein.
Mere improbability of recovery by the plaintiff does not justify summary judgment for a defendant. Central Realty Inc. v. Hillman's Equipment, Inc. (1969), 253 Ind. 48, 246 N.E.2d 383, 388; McNabb v. Mason (1970), 148 Ind. App. 233, 264 N.E.2d 623, 626. Therefore, the burden is on the proponent of a summary judgment to demonstrate the absence of any genuine issue as to a material fact.