Hass v. Wentzlaff
2012 SD 50
| S.D. | 2012Background
- Wentzlaff, an insurance agent, stole Severson’s money after handling Severson’s finances as a bookkeeper/agent through RDI.
- North American and Allianz appointed Wentzlaff and paid benefits to Severson’s estate after his death.
- Hass, as Severson’s personal representative, sued the insurers alleging vicarious liability for Wentzlaff’s acts.
- The circuit court granted summary judgment for North American and Allianz; Hass appealed.
- Undisputed facts show Wentzlaff’s theft was conducted through Severson’s accounts, with withdrawals approved by insurers.
- Hass did not preserve a §219(2)(d) argument below; the court also addressed statutory and foreseeability aspects to determine liability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hass preserved genuine-issue preclusion on summary judgment | Hass contested undisputed facts | Insurers showed no genuine facts for trial | No genuine-issue preserved; summary judgment affirmed on undisputed facts |
| Whether theft was within the scope of Wentzlaff’s employment | Acts served insurer business; dual purpose | Acts were personal and outside scope | Not within scope; insurers not liable |
| Whether Restatement (Second) § 219(2)(d) applies (aided-by-agency liability) | Agency enabled the theft | Not argued below; not applicable | Not preserved; not addressed on the merits due to preservation issue |
| Whether SDCL 58-30-176 imposes strict liability on insurers | Statute makes insurer responsible for agents’ acts | Statute does not change general agency law | Not strict liability; insurers not liable under 58-30-176 or common law |
Key Cases Cited
- Leafgreen v. Am. Family Mut. Ins. Co., 393 N.W.2d 275 (S.D. 1986) (foreseeability in vicarious liability and agency scope discussed)
- Kirlin v. Halverson, 758 N.W.2d 436 (S.D. 2008) (two-part test for scope of employment (intent and foreseeability))
- Iverson v. NPC Int’l, Inc., 2011 S.D. 40, 801 N.W.2d 271 (S.D. 2011) (aided-by-agency theory; agency relevance to torts outside scope)
- Wingler, 734 N.W.2d 795 (S.D. 2007) (SDCL 58-30-176 not retroactive; agency-based restitution context)
- North Star Mut. Ins. Co. v. Rasmussen, 734 N.W.2d 352 (S.D. 2007) (duty to defend/indemnify; agency statutory context)
- Kirlin (cited), 758 N.W.2d 436 (S.D. 2008) (two-part scope-of-employment framework)