Brazones v. Prothe

injurеs. A mistake of law Error of law has effect; is, party injurious that com- BRAZONES, Special E. Gerald Adminis mitting consequences.” it must suffer the Joseph trator of the Estate of Karl Bra Edition, Dictionary, page Black’s Law 5th zones, Martin, Larry Martin, Irene Al Here, appellee. Appellee 487. should not Hansen, lan D. and Charlotte L. Han wrongfully lament a retrial for it took sen, Appellants, and Plaintiffs right jury away appellants’ to a trial. v.

Therefore, I would not reach the other is- Special as the Jean PROTHE Administra sues. Prothe, trix of the Estate of Willard H. Danny Thornburg, B. Defendants II

THEORY Appellees. I I Theory posited incorrectly, If con- Snyder, James SNYDER and Sunshine aspect majority opinion cur Appellants, Plaintiffs and liability against the which affirms defen- v. dants, as their conduct and actions reflect a Special Jean PROTHE as the Administra pattern of sustained misconduct. Howev- Prothe, trix of the Estate of Willard H. er, absolutely I am convinced that the affi- Danny Thornburg, B. Defendants damages attorney’s xation of fees are Appellees. to, unsupported simply, due an error determining damages trial court in MAGER, Special Joan Administratrix upon theory gross revenues. This Mager, of the Estate of Ronald L. requiring a trickle outfall creates down capacity; Jay in her individual E. compensatory damages, puni- reversal on Mager, Appellants, Plaintiffs and damages, attorney’s tive fees. pages On 1239 and of the Settled Special Jean PROTHE as the Administra Record, signed by there is a document at- Prothe, trix Estate of Willard H. torney William E. Coester on behalf of Danny Thornburg, Ship B. and Robert specific objections defendants wherein 12 man, Aрpellees. Defendants and attorney’s were set forth to fees for the plaintiff. objections specific These are No. 17448. pointing

nature out the trial court the Supreme Court of South Dakota. item, why, attorney’s reasons item for fees 2, Argued proper. Dec. would not be of these items One $32,564.35. was in the amount of For the Aug. Decided majority opinion express that defendants Rehearing Sept. Denied attorney’s waived an award for fees is in- Furthermore, attorney correct. Coester preserved

further the issue of an award of

attorney’s by briefing fees this issue in his reply

initial brief and brief.

In November of defendant Prothe summary filed a motion for judgment on punitive damages. the issue of In Febru- ary of granted court this motion. January 1990, In defendants filed a summary motion for judgment based on an intervening by decision this Court. ‍‌​​‌​​​​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌‌‌‌​​​‌​‌​‍Owen Orr, Piersol, Rick W. Lawrence L. Dav- Owen, 444 (S.D.1989). N.W.2d 710 At Evans, enport, Smith, Hurwitz & Sioux May hearing motion, on this Falls, plaintiffs appellants. for plaintiffs trial court allowed additional time Hall, Estill, Blongewicz, Mark K. Hard- to file a motion to complaints. amend their wick, Gable, Nelson, P.C., Tulsa, ruling Golden & In plaintiffs’ amend, motion to Johnson, Wiehl, May, Doyle Deraid W. & the granted plaintiffs trial court leave to Becker, P.C., Falls, for amend permit Sioux defendants but refused plaintiffs appellees. join (WPL) Pipe Williams Line party- as a Following amendment,

defendant. trial granting entered its Order judg- HENDERSON, Justice. courtj ment on the pleadings summary and/or judgment as to Count I appellants’ PROCEDURAL HISTORY/ISSUES complaints. 28, amended On December (special Gerald Brazones administrator of 1990, granted the court summary judgment Brazones), Martin, the estate of Karl Larry in favor of defendants on II Count Martin, Hansen, Irene Allan Charlotte Han- complaints. amended sen, Snyder, James Snyder, Sunshine Joan appeal, plaintiffs On following raise the Mager (special administratrix of estate of issues: Mager, Ronald capaci- her individual ty), Jay Mager1 commenced this action I. Did the trial court err in applying against (special Jean Prothe administratrix South Dakota law to this action? Prothe), of estate of Danny Willard Thorn- II. Did entering the trial court err in burg Shipman, and Robert respectively, summary order judgment? arising petroleum storage out of a tank III. Did the trial court abuse its discre- explosion, Milford, Iowa, near resulting in in refusing grant plaintiffs’ tion motion either plaintiffs. or death to the All pleadings amend to state a against claim relevant lawsuits were consolidated in this Pipe Company? Williams Line July one action IV. Did the ordering trial court err in May 1987, and June of defendants partial summary judgment in favor of es- plaintiffs’ filed motions to dismiss com- tate of Prothe? plaints for to state a claim. De- failure V. Did the trial dismissing court err in fendant Keearns separately also raised in Ray party Keearns as a defendant? his motion the issue оf lack jurisdiction. The trial court Based on our overruled all decision in Chambers v. dismiss, (S.D. defendants’ motions to Dakotah except Ke- 488 N.W.2d 63 1992), July earns on we affirm. permitted 1987. The court Due to our determina issues, tion on the defendants to re-assert these first two we need not motions later abeyance consider remaining held issues. decision on the jurisdictional by issue raised Keearns. The FACTS subsequently granted

court Keearns’ mo- tion based jurisdiction, on lack dismiss- explosion This case arises out of an at a ing complaints against him. pеtroleum storage tank owned and main- Appellants employees are either former collectively or the will be referred to as “defendants.” personal representatives employees of deceased necessary, parties by When will be referred to Pipe Company. They of Williams Line will be their surname. collectively "plaintiffs." Appellees referred to Milford, 2, 1986, by July July explosion Iowa on On tained WPL fatal oc- Hansen, tank, curred inside the plaintiffs storage ‍‌​​‌​​​​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌‌‌‌​​​‌​‌​‍Milford July, 1986. In Bra- plaintiffs Martin, engaged while were zones, cleaning Mager Snyder Snyder, Martin, Mager the tank. and Bra- employed members of a maintenance crew zones were burned while inside the tank. incident, time all of WPL. At the Hansen Prothe were outside the tank Falls, plaintiffs were residents of Sioux also Mager, but burned. Brazones and worked for WPL and were Prothe died as injuries. a result of their Falls, although they served Sioux Snyder, Martin and Hansen sustained seri- area, including in a multi-state worked injuries ous from burns. Iowa and Minnesota. Many possible theories were identified as incident, At the time of the defendants explosion. causes for the proba- The most plaintiffs’ superiors Willard at WPL. agreed ble cause upon explo- was that the Prothe was the foreman of the sion by spark was created from use of a a resident of Sioux crew at Iowa and was scraper, thereby metal causing ignition of Thornburg was Danny Falls at that time. vapors the fumes and inside the tank. The super- and was manager division for WPL agreed Iowa State Fire Marshal with this employees at the Sioux Falls visor of all probable conclusion. responsibility terminal. He had over the storage terminal. He lived and Milford DECISION Ship- had office in Sioux Falls. Robert his I. Did the applying trial court err in manager of one of two man was district South Dakota law to this action? We geographical districts within the division. hold that it did not. He a Sioux Falls resident whose office was here, pertains As an issue of a “conflict reported directly was in Sioux Falls and he approach in of laws” South Dakota is a Thornburg. His district included legal concern which has been in a state of terminal, Milford but not the Sioux Falls flux since when the case of Owen v. Keearns, Ray then man- terminal. WPL’s (S.D.1989) Owen, 444 N.W.2d 710 was de- Pipeline ager of Environmental Affairs and Owen, “majority” cided. the nominal corporate Safety was based in WPL’s of- application continued the of the doctrine of responsibil- fice in Keearns has Oklahoma. actions, lex loci delicti in multi-state tort safety ity for review and revision of WPL adopting public policy exception albeit manuals, safety interpretation pipeline that rule. Justice Miller wrote a Chief regulations and liaisоn and environmental Owen, special concurrence in with which regulatory agencies. Ke- activities with joined. This this author and Justice Sabers in Dakota from 1954 to earns lived South rejection of special writing advocated the 1960. He had been a resident of Oklahoma approach completely the lex loci delicti four since 1967. He visited South Dakota adoption concomitant of the choice-influenc- corporate capacity since 1980 times his approach facing ing considerations when and had not visited the state on However, problems. lex conflicts of law twenty-five years. business for over loci, exception, public policy the added with ostensibly day held in South Dakota corporate employer of all WPL was after our decision Owen. parties July It common by petroleum products refined carrier of opportunity to recently We have had an pipeline. corporate WPL’s offices are lo- choice of laws question revisit this of which Tulsa, many cated in Oklahoma whеre apply in multi-state tort ac- approach operating by its functions are conducted. The recent decision this Court tions. in midwest- pipelines WPL’s are located ten Chambers v. Dakotah (1992), question in along pumping various sta- settled this ern states with N.W.2d 63 storage This Court in Chambers tions and terminal facilities. significant relationship qualified adopted to do the most company has been business govern multi-state tort con- approach to Dakota since 1965. appli- ap- (g)ease in the determination and Chambers, We nоw at 67-68. flicts. applied. of the to be the case before us. cation law ply approach to Chambers, (quoting Restatement at 68 and de Initially, must define we (1971)). ap- (Second), We must supra, § relationship ap significant lineate the most approach of law to deter- ply this choice proach: significant mine which state has the most par- (1) liabilities rights relationship par- and the to the occurrence are respect to an issue tort ties with involved. When the state with the ties by the local law of determinеd determined, significant relationship is most issue, which, respect to that with state employer’s con- we will then evaluate has the fault, if duct to ascertain the standard parties and the the occurrence By any, reached its actions. evaluation stated principles § the defendants’ of what standard of fault (2) into account in to be taken Contacts to, applicability or non- actions arose 6 to deter- principles applying com- applicability of the relevant workers an issue applicаble to mine the law pensation statutes of that state will be include: dispute pos- Essentially, the ascertained. injury oc- (a) place where the compensa- tured is: Which state’s worker’s curred, in to determine if an applies tion law order (b) conduct caus- place the where the outside of the action in tort is allowed occurred, ing injury the of state? Compensation Act Worker’s residence, (c) domicile, nationality, the taking account the contacts into tIn parties, the and place of business оf determining applicable in the law to the relationship, if (d) the place the where issue, place is the it is conceded that Iowa parties is centered. any, the between injuries the deaths and occurred where ac- are to be evaluated These contacts causing the deaths and where the conduct importance with cording to their relative However, all of the injuries occurred. particular the issue. respect to in residents and domiciled plaintiffs were Chambers, (quoting Restatement at 67-68 plaintiffs were em Dakota. All South (1971)). (Second) of Laws 145 of Conflict § in Dakota at WPL ployed and based South principles The to be considered in Dakota. All located South facilities are: in plaintiffs predominantly worked South (1) court, subject to constitutional re- A Dakota, working in although Iowa and also strictions, statutory di- will follow a addition, defendant Prothe Minnesota. In state on choice of rective of its own domiciliary of South was a resident law. Dakota, in South was and worked directive, (2) the there is no such When Thornburg a was also Dakota. Defendant the to the choice of factors relevant domiciliary of Dakota. South resident include applicable rule of law Da in and worked South He was based (a) of the interstate and in- the needs Shipman was a resi Only kota. defendant systems, ternational Defendant Ke- in Iowa. dent and worked forum, (b) policies of the the relevant Fur lived and worked Oklahoma. earns ther, relationship of that the inter- it is evident (c) policies of other the relevant Dakota. parties centerеd South relative interests the was states and the ested crew was based The maintenance in the determination of of those states manager’s issue, The division in South Dakota. particular the district covered (Thornburg) office of the (d) justified expecta- protection accident, Dako South by the was located tions, relationship of undeniable that ta. It is (e) policies underlying the the basic parties was centered law, particular field of contacts, number considering (f) In these certainty, predictability unifor- choice to a result, factors are relevant mity of In law. intentional conduct appropriate worker’s policies employee trigger is the are the relevant standard to The factors state; exception exclusivity provision.3 relative interests of to the interested issue; determining the states In v. Hamm VerBouwens Wood Prod- expectations; and protection justified ucts, (S.D.1983), 334 N.W.2d particular policies underlying the the basic compare Court had the occasion to these these factors fa- fiеld of law. We believe VerBouwens, standards. we stated: application of South Dakota law. vor the Willful and wanton misconduct is some- application of these factors We discuss thing ordinary negligence more than but below. less than deliberate or intentional con- willful, wanton, have an duct. is gross, Both Iowa and South Dakota Conduct exclusivity provision respective person to their or reckless when a acts or fails to act, inju- states acts. Both with conscious realization that exclusivity provi- distinguished exceрtion ry probable, an to the is a from a have possible (ordinary negligence) Dakota result of sion of the statute. follows, pertinent part: exception Contra-distinguished, is as such conduct. in- tentional tortious conduct is when an rights grant- herein and remedies reasonable, ordinary, prudent, person rights ed shall exclude all other ... would was believe substantial- employee, his remedies of such ly certain to result from his conduct. representatives except rights ... conduct, To establish intentional more arising intentional tort. remedies from knowledge appreciation than the (emphasis supplied). danger necessary; risk is the known 62-3-2. The Iowa Worker’s Com- SDCL only must cease become foreseeable pensation provides perti- Act as follows reasonable, ordinary, pru- risk which an part: nent (ordinary negli- person dent would avoid provided in rights The and remedies gence), and a substantial cer- become the exclusive chapter, this ... shall be (citations omitted) (emphasis tainty. only rights and remedies of such supplied). employee, employee’s personal the or le- VerBouwens, supra at 876. (2) any gal representatives against ... employer, pro- employee other of such Da purpose The behind the South ... not caused injury vided that such is Compensation Act is two kota Worker’s employee’s gross negli- other by the First, compensation pro the worker’s fold. care gence amounting to such lack injured employee provide of vision is to an neglect the as to amount to wanton inde expeditious and remedy which is both another, (emphasis supplied). safety City v. pendent proof fault. of of Scissons of (S.D. 681, 686 (1991). 251 N.W.2d Rapid City, 85.20 The two stat- Iowa Code § of pro 1977). legislation is Secondly, the up set a different standard of fault. utes liability co-employees a Iowa, gross negligence employers is the standard.2 vide In safety (1991). neglect of Rights employ- for the 85.20 of amount to wanton Iowa Code ee exclusive. another. provided rights in this The and remedies provides: 3. SDCL 62-3-2 chapter chapter chapter, employee 85A or 85B for an injury, shall be on accоunt of ... granted to rights herein remedies rights only and remedies of the exclusive title, subject on account employee to this an personal employee, employee’s or the such arising injury out of personal or death of legal representatives, dependents next of or all employment, shall exclude in the course of otherwise, kin, on account at common law or employee, of such rights other and remedies against, injury such ... of dependents, or representatives, his employee’s emplоyer; or kin, injury or of such account next of employee employer, any such other of any employee, employer or against death his injury provided such ... arises out of officer, employer, such partner, director of or employment and is not of such in the course arising inten- except rights and remedies from gross negli- employee’s by the other caused tional tort. amounting gence care as to to such lack of 906 Dakota worker’s com- Id. at believed that South determinate. is

which limited end, employs pensation apply employ- to their legislation law would 686. To this liability possible. ment conduct. highest standard country, constru- in this majority rule4 Thus, analy- must conclude from our we narrowly, exception tort ing the intentional sis of the test v. Jensen is the law apply. must There- that South Dakota law Bowl, Inc., N.W.2d 372 Sport fore, compensa- worker’s South Dakota point- (S.D.1991). intent In South provisions tion dictate the determination of at 371. edly means intent. Id. dispute. Plaintiffs received benefits Pipe Line from Williams Iowa that Iowa’s worker’s apparent It is сompensation program. worker’s Williams legislation does not share Pipe paid Line bene- comparison em purpose. From same statute and filed a lien fits under the Iowa VerBouwens, evident that ployed it is recovery against proceeds any here. liability is less than in Iowa’s standard An intentional tort action South Dakota. entering II. the trial court err in Did Iowa, negligence by a co- alleging gross summary judgment? order for amounting to such lack of care employee Ruple As set forth v. Wei safety neglect for thе to amount to wanton (S.D.1983), the stan naug, 328 N.W.2d another, the South would not be within summary judgment is dard of review for only requires exception. Iowa Dakota 15-6-56 and drawn from SDCL Wilson negligent on the gross or conduct wanton Co., Ry.N. 83 S.D. 157 N.W.2d Great pointed co-employee. As we part of the (1968). may in South Dakota Courts VerBouwens, only re this standard out when, viewing grant summary judgment acts or fails to act quires person that a light the evidence in the most favorable realization that “with a conscious moving party nonmoving party, VerBouwens, (i.e. probable.” likely). su genuinе clearly that there is no issue shows contrast, pra at 876. establishment the movant is entitled of material fact and just than requires conduct more intentional However, judgment as a matter of law. “the knowledge appreciation of risk: nonmoving party prediction that the will only danger must cease to become known prevail a material issue of fact is not not ordinary, an reason risk which foreseeable summary granting for a sufficient basis avoid, able, person and be prudent would appropri judgment generally and it is not certainty.” Id. at 876. come a substantial “the of the reasonable ate where standard Jensen, supra, 469 N.W.2d As we stated applied conflicting testi person must be to certainty should not at “[Substantial Co., Ry. N. mony.” v. Great Wilson likelihood.” equated be with substantial 212, 213, at at 157 N.W.2d S.D. omitted). (i.e. (citations probable) Moreover, that this Court protection parties’ It must be noted the summary judgment appli- appeals has from expectations would mandate heard justified past. actions in the negligence Dakota law. All of the orders in оf South cation VerBouwens, Jensen, supra. We employees supra; plaintiffs were record herein to deter Dakota, residing here. Two of the have examined the besides if material fact has employed genuine and based mine a issue of were also 'defendants raised, has that been believe that none Dakota. We must assume and we plaintiffs’ of counts.5 employers considered been raised in either plaintiffs and their Viewing pleadings and the Dakota worker’s the evidence under South them covered сase, light plaintiffs’ excep- there are a While favorable compensation laws. alleged parties plaintiffs have not coverage, certainly the we conclude that tions ‍‌​​‌​​​​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌‌‌‌​​​‌​‌​‍to Larson, Compensa- 5. Count I cause of action under Iowa Law of Workmen's stated a 2A 68.13, (1990). law. Count II states a cause of action under tion 68.15 62-3-2, law, the South Dakota based on SDCL exception. intentional tort signifi- the application Whether of the most “plausibly demonstrate actu facts that employer injure or a cаnt would indicate al test intent that be certainty injury preferred will or substantial law as Iowa South Dakota employers con inevitable outcome for remains the trial court. See generally Jensen, (citations supra at 372. Charter, Inc., duct.” Chambers Dakotah omitted). Essentially, allege that Plaintiffs (S.D.1992). N.W.2d 63 sent the crew clean the defendants proper equipment job; tank without AMUNDSON, (dissenting). Justice training and instruction without sufficient This is a case where issue is whether cleaning, operation equipment as to co-employee’s not or suit is аllowable under allowing safety; potentially unsafe applicable worker’s law present. allegations These conditions to be not whether it is allowable under knowledge of may probable amount to principles choice law of tort law. plaintiffs risk on defendants’ case, such we must determine which jur- However, part. facts come these do not (Iowa Dakota) isdiction or South has a Dakota’s intentional tort ex within South greater interest at stake. Hauch v. Con- ception compensation coverage to worker’s ner, (Md.1983). 453 A.2d 1207 say as a of law. We are unable to matter substantially that certain defendants explosion This occurred in Iowa while injuries would be the inevit plaintiffs’ plaintiffs employ were in the of multi- conduct, much of defendants’ able outcome employer providing compen- state say actually that defendants in less to sation and South as both Iowa injuries. Accordingly, tended jurisdictions. employ- well as other judgment summary properly was we hold or their ees heirs received benefits under While trial court awarded to defendants. compensation program in ef- the worker’s of law approach, the old choice utilized fect at the in Iowa. Both South Dako- time grant summary judgment proper was exception to provide ta and Iowa for an the new law choice of because even exclusivity respective provision of their applies. approach, Dakota law still exceptions, plaintiffs acts. Under these re- application upon This of South is based gross negli- main in court under the Iowa deter law Dakota worker’s standard, gence are out of court under but newly adopted by the choice of law mined intentional tort standard. South Dakota approach espoused Chambers v. Dako relationship ap- The most Charter, tah 488 N.W.2d proach of v. Dakotah Chambers Affirmed. (S.D.1992),certainly 488 N.W.2d 63 should day from their plaintiffs not foreclose MILLER, C.J., WUEST, J., concur. stated, case, previously in- court. This AMUNDSON, JJ., dissent. SABERS employer, employees volves of a multi-state required employees employment whose SABERS, (dissenting). Justice fulfilling linеs in their them to cross state by I this case is agree that controlled duties, employees obviously who work case of v. recent Dakota Chambers assigned dangerous work environ- Inc., 488 N.W.2d Dakotah incorporated employer ments. The was not (S.D.1992), adopted signifi- the most which of the occur- At the time involving relationship cant test cases rence, relationship be- employment questions. of law conflict or choice employer was cen- employees tween applied test is Milford, in Iowa. tered by instance the trial court. the first have Dakota and Iowa simi- did not the bene- Since South Since the trial court have exceptions exclusivity respec- their Chambers, I lar fit our decision would statute, I do provide the trial tive worker’s and remand reverse public poli- perceive any conflict to the apply proper not opportunity court Dakota, since this state has cy of South circumstances of this case. test under the exception to the exclusivi acknowledged an appropri in an

ty of wоrker’s Smith, Dick SMITH Wilbur prior decisions of this court ate case. The Appellees, Plaintiffs and (S.D. Owen, 444 N.W.2d 710 Owen v. v. Rohl, 260, 1989)and 86 S.D. Heidemann FARM LIMITED PART- (1972), HIGHMORE to indicate a 194 N.W.2d 164 seem Bunn, and Paul Defen- NERSHIP preference injured citizens of this to allow Appellants. dants and legitimate claims. There prosecute state to apply has an election this case to been 17656, Nos. explosion to the as evidenced Iowa law being compensation benefits ‍‌​​‌​​​​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌‌‌‌​​​‌​‌​‍the worker’s Supreme Court of South Dakota. case, I paid. Under the facts would 28, May Considered on Briefs interest conclude that South Dakota’s having compensation statutes its worker’s Aug. Decided involving Dakota apply to an action outweighed by the interest

domiciliaries is applying the industrial acci Iowa law to occurring

dent within Iowa where Iowa compensation statutes have been

implemented. Although this court has not

adopted Professor Leflar’s choice-influenc

ing approach consideration to choice of law following portion

disputes, I find the of this enlightening:

article any

“The inclination of reasonable court prefer

will be to rules of law which make

good sense for the time socio-economic speaks, they the court whether be

when

its own or another state’s rules.” Leflar,

R. Law: More on Choice- Conflicts Considerations,

Influencing 54 Cal.L.Rev. (1966).

The rule of law which this reasonable prefer

court should in this case is that set (1991).

forth in Iowa Code 85.20 Wheth- prove gross negli- plaintiffs

er the can

gence, foreign a term which is ‍‌​​‌​​​​‌‌​​​​‌​‌‌‌‌‌​​‌​‌‌​​​‌‌​‌‌‌​‌‌‌‌​​​‌​‌​‍not to South jurists, question

Dakota which will majority

never determined under the be

holding grant plain- I this case. would opportunity

tiffs that to receive an answer trial court

and reverse the decision the choice of law issue.

Case Details

Case Name: Brazones v. Prothe

Court Name: South Dakota Supreme Court

Date Published: Aug 12, 1992

Citation: 489 N.W.2d 900

Docket Number: 17448

Court Abbreviation: S.D.