Cynthiа K. KNUDSON, Plaintiff and Appellant, v. James HESS, individually, and James Hess, d/b/a Mountain Plains Counseling Center, Defendants and Appellees.
No. 19361.
Supreme Court of South Dakota.
Decided Dec. 4, 1996.
1996 SD 137
Considered on Briefs Oct. 24, 1996.
[¶ 18] Finally, Howell is again relevant to the discussion. Howell had completed work for the day, punched out on the timeclock, and was not being paid at the time of her injury in the еmployer‘s parking lot. Nonetheless, she was allowed to recover under South Dakota‘s workers’ compensation law. Howell, 497 N.W.2d at 711, 712.
[¶ 19] With questions of fact, doubts must be resolved against Insurer as the moving party. Lamp, 496 N.W.2d at 585. Insurer has failed to show there is no genuine issue of material fact with regard to the adequacy of its investigation. Thiewes, 448 N.W.2d at 2. Furthermore, Insurer has failed to show there is no genuine issue of material fact as to whether failure to timely review pertinent caselaw constituted a “reckless disregard of a lack of a reasonable basis for denial or a reckless indifference to facts or to proofs submitted by the insured.” Champion, 399 N.W.2d at 324.
[¶ 20] We find that genuine issues of material fact exist regarding Insurer‘s reasonable basis in denying Walz’ claim and, therefore, that summary judgment was improperly granted. Thiewes, 448 N.W.2d at 2-3. Accordingly, the judgment of the trial court is reversed and the case is remanded for further proceedings.
[¶ 21] MILLER, C.J., and AMUNDSON, KONENKAMP and GILBERTSON, JJ., concur.
Gregory A. Eiesland, Michael P. Reynolds, Quinn, Eiesland, Day & Barker, Rapid City, for plaintiff and appellant.
J. Crisman Palmer, Talbot J. Wieczorek, Gunderson, Palmer, Goodsell & Nelson, Rapid City, for defendants and appellees.
[¶ 1.] Cynthia Knudson (Knudson) appeals from a judgment on a jury verdict in favor of James Hess (Hess). Knudson appeals the trial court‘s application of the two-year statute of limitations to her claims against Hess. We affirm.
FACTS AND PROCEDURE
[¶ 2.] This appeal presents a revisitation of some of the parties involved in Weisbeck v. Hess, 524 N.W.2d 363 (S.D. 1994). In Weisbeck, Knudson‘s husband1 sued psychologist Hess for professional negligence arising out of Hess’ relationship with Knudson. In the present case, Knudson sued Hess for negligence, intentional infliction of emotional distress, and breach of fiduciary duty arising out of their seven-year relationship.
[¶ 3.] In November 1986, Knudson and her husband first consulted Hess about problems they were having with their daughter. Soon after this first meeting, the counseling sessions began to focus on Knudson and her low self-esteem, her marital problems, and the medications she was taking for depression. By September of 1987, Knudson was working in Hess’ clinic as a receptionist and was
[¶ 4.] At some point, Knudson and Hess began a sexual relationship, though the parties are not in agreement as to when this relationship started. Both parties agree the relationship ended in April or May of 1993. Hess does not dispute that an intimate relationship continued until then.
[¶ 5.] In March 1994, Knudson filed a complaint against Hess with the South Dakota Psychology Board. In April 1994, Knudson filed the action underlying this appeal, claiming negligence and intentional infliction of emоtional distress by Hess. Hess moved the trial court for summary judgment on grounds that the action was barred by the two-year statute of limitations provided in
- Whether the trial court erred in applying the two-year medical malpractice statute of limitations provided in
SDCL 15-2-14.1 ? - Whether the trial court erred in allowing a defense of contributory negligence?
STANDARD OF REVIEW
[¶ 6.] Our standard of review of a trial court‘s instruction to the jury is well settled. We review the jury instructions by construing them together and the instructions are not erroneous if when so construed they provide a full and correct statement of the law applicable to the case at bar. Sommervold v. Grevlos, 518 N.W.2d 733, 739 (S.D. 1994); Frazier v. Norton, 334 N.W.2d 865, 870 (S.D. 1983); Mueller v. Mueller, 88 S.D. 446, 221 N.W.2d 39 (1974).
An appellant has the burden to show not only that the instruction given was in error, but аlso that it was prejudicial error to the effect that under the evidence, the jury might and probably would have returned a different verdict if the appellant‘s instructions had been given. Sybesma v. Sybesma, 534 N.W.2d 355, 359 (S.D. 1995) (quoting Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64 (S.D. 1992)). “[A]n appellant who seeks to set aside a civil verdict because of an incomplete or аmbiguous instruction must establish that it was prejudicial.” Id. (quoting Schmidt v. Wildcat Cave, Inc., 261 N.W.2d 114, 119 (S.D. 1977)).
ANALYSIS AND DECISION
[¶ 7.] 1. Whether the trial court erred in applying the two-year medical malpractice statute of limitations provided by
[¶ 8.] Before being permitted to raise an issue on appeal, parties must have presented the issue to the trial cоurt and obtained a ruling. “This Court will not decide issues the trial court has not had the opportunity to rule upon.” Klinker v. Beach, 1996 SD 56, ¶ 17 n. 3, 547 N.W.2d 572, 576 n. 3; Hawkins v. Peterson, 474 N.W.2d 90, 95 (S.D. 1991).
[¶ 9.] Prior to trial, Hess moved for summary judgment based on the two-year statute of limitations provided by
In this case, there are indeed disputed material facts as to: (1) Whether Plaintiff and Defendant Hess had a counselor/patient relationship which ended in late April or May of 1993 and whether Hess committed malpractice within the two (2) year statute of limitation [sic]; (2) Whether Hess continued to counsel Plaintiff until at least the 8th day of April, 1992 which would toll the statute of limitations; (3) Whether Hess and Plaintiff had a counselor/patient relationship to at least April 8, 1992; (4) At what time, if any, did Hess’ treatment of Plaintiff cease; (5) Whether Hess’ treatment of Plaintiff is continuing treatment; and (6) Whether Hess’ conduct amounted to intentional infliction of emotional distress.
At the conclusion of her reply opposing Hess’ motion for summary judgment, Knudson noted that:
An action for intentional infliction of emotional distress is governed by the three (3) year statute of limitation [sic] as set forth in
SDCL 15-2-14 . However, in this case, whether the statute is two (2) years or (3)[sic] years is really not the issue. The issue is what was the relationship between Cindy and Hess between 1987 and April or May of 1993. This question is hotly disputed between the parties. Material issues оf fact exist which preclude summary judgment. (emphasis added).
Knudson prevailed in her argument. In denying Hess’ motion, the trial court noted this Court‘s holding in Keegan, 519 N.W.2d at 611:
Statute of limitations questions are normally for the jury. Further, summary judgment is proper on the issue of statute of limitations only when application of the law is in question. Summary judgment is therefore improper where there is a dispute of material fact which would affect the application of the statute of limitations. (emphasis original) (citations omitted).
The trial court found summary judgment improper in this case and the matter proceeded to trial.3
[¶ 10.] At trial, during settlement of the jury instructions, Hess proрosed an instruction which ultimately became Jury Instruction 15 and was presented by the trial court to the jury. This instruction stated that:
The defendant has asserted the defense of statute of limitations.
If you find that defendant, Dr. James Hess, did not continue counseling Cindy Knudson through at least April 8, 1992, you must enter a verdict fоr the defendant, Dr. Hess.
If you find that defendant, Dr. James Hess, continued counseling Cindy Knudson through at least April 8, 1992, you must proceed to the rest of the instructions.
Knudson had a final opportunity to preserve this issue for appeal by making objection to the proposed instruction on the grounds she now raises before this Court. Knudson did object to this instruction “for the reason that reasonable minds could not differ that the evidence has shown that he was counseling beyond April 8, 1992 and that as a matter of law, the court should direct that counseling did continue and that instruction would not be necessary to put to the jury.” The trial court overruled this objection. Knudson did not object to the legal sufficiency of the instruction as it pertains to the appropriate
[¶ 11.]
[¶ 12.] Having never raised the issue of the applicable statute of limitations at the trial level and having made no objection to the jury instruction on these grounds, Knudson cannot now assert the trial court erred on mattеrs it was never asked to determine. Klinker, 1996 SD 56, ¶ 17 n. 3, 547 N.W.2d at 576 n. 3; Bottum v. Herr, 83 S.D. 542, 548, 162 N.W.2d 880, 883 (1968); Schull Const. Co., v. Koenig, 80 S.D. 224, 229, 121 N.W.2d 559, 561 (1963). This issue is waived for Knudson‘s failure to preserve it at trial.
[¶ 13.] 2. Whether the trial court erred in allowing a defense of contributory negligence?
[¶ 14.] The trial court gave two instructions to the jury on the defense of contributory negligence which Knudson argues were given in еrror. She does not dispute that they were a correct statement of the law of contributory negligence. Rather, her argument that these instructions were erroneous is based on the evidence presented at trial, specifically, evidence of Knudson‘s alleged state of diminished mental capacity during her relationship with Hess. Knudson claims that the evidence presented of her mental state precluded a finding of contributory negligence because she did not have sufficient faculties to avoid a risk of harm. But see Frazier, 334 N.W.2d at 870 (holding that diminished capacity of а minor did not preclude an instruction on contributory negligence and assumption of the risk). Knudson claims the evidence demonstrated she was so emotionally dependent upon Hess that she was unable to function without his approval. Knudson had testified her relationship with Hess was “like a fix; I had to have a fix and I would call Jim and it got to the point where I needed him for everything.” According to Knudson‘s argument, she was incapable of contributory negligence under this addictive state. We note that, despite Knudson‘s claims to this Court on appeal regarding evidence of her diminishеd capacity, she failed to propose a diminished capacity jury instruction at trial. See Carlson v. First Nat‘l Bank, 429 N.W.2d 463, 465 (S.D. 1988).
[¶ 15.] To set aside a jury verdict due to erroneous instruction, Knudson must demonstrate prejudice due to the instructions. LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 32, 544 N.W.2d 523, 530; Glanzer v. St. Joseph Indian School, 438 N.W.2d 204, 209 (S.D. 1989). Knudson must further show that the jury might and probably would have reached a different verdict, one in her favor, had the instruction at issue not been given. LDL Cattle Co., Inc., 1996 SD 22, ¶ 35, 544 N.W.2d at 530; Chambers, 488 N.W.2d at 64.
[¶ 16.] We hold Knudson has failed to meet her burden in this regard. Her argument to this Court focuses on her diminished mental capacity and her inability to avoid the risk of harm by Hess. This evidence was presented to the jury.4 However, without a special
[¶ 17] We affirm.
[¶ 18] MILLER, C.J., and AMUNDSON and KONENKAMP, JJ., concur.
[¶ 19.] SABERS, J., concurs specially.
SABERS, Justice (concurring specially).
[¶ 20.] Hopefully, this case will put to rest any lingering questions reflected in the numerous writings in Richards v. Lenz, 539 N.W.2d 80 (S.D. 1995) and Rehm v. Lenz, 1996 SD 51, 547 N.W.2d 560. It should be clear by now that the two-year medical malpractice statute of limitations applies to a psychologist treating depression whether the claim is based on contract or tort; that
As I stated in Rehm, 1996 SD 51 at ¶ 42, 547 N.W.2d at 569:
In the absence of fraudulent concealment or the continuing treatment rule, the lawsuit had to be commenced within two years, not three years, of the last act of negligence[.]