*1 tеstimony was “unavailable” at time trial or that it “new.” Defen- was hearing
dant testified at the for new trial him years witness had warned Although pre-trial attempts
earlier. were
made to contact leaving the witness
messages, subpoena no was issued and no requested. The
continuance was trial court
correctly “unavailability” ruled that
evidence was not shown. “newly
evidence was not discovered” and
did not warrant a new trial
15-6-59(a)(4).
Separately, I would not consider Defen
dant’s claim assistance of ineffective (Issue V) appeal
counsel on direct preferred corpus. method is habeas Aliberti, at 732.
State Nor plain I consider it under the error
doctrine under these circumstances be opportunity provided
cause no was to de explain
fense counsel to aсtions. his Id. plain error doctrine never intended afterthought used as an for insub
stantial claims of ineffective assistance of
counsel. See SDCL 23A-44-15. It was
intended to be used for serious claims af
fecting substantial discovered dur appellate process. State v. Dorn
busch,
NORTH STAR MUTUAL INSURANCE
COMPANY, Plaintiff
Appellant,
Patricia E. KNEEN and Arthur
E. Defendants
Appellees.
Nos. 17569.
Supreme Court of South Dakota.
Considered on Briefs Dec. 1991. 6,May
Decided 1992. *2 judg- partial summary
filed a motion for ment. granted
The trial court Arthur’s motion determining partial summary judgment, for had a to defend Ar- that North Star deferring resolution of the thur and final coverage issues until after trial of the un- derlying Arthur filed а notice of action. contesting denying review the court’s order litigation request attorney fees and his defending incurred in expenses which were appeal, North Star raises the follow- On ing issues: holding court err in
I. Did the trial coverage question can- the insurance through not be resolved action, prior to trial hold that it lawsuit? We did. trial court err in
II. Did the that North Star has underlying law- Kneen in the that it did not. suit? We hold denying Did the trial court err III. Kneen’s expenses incurred in defend- fees and declaratory judgment action? ing the that it did not. We hold ' FACTS Kneen are former and Arthur Patricia in South spouses who obtained a divorce Hovland, Schaffer, E. Michael J. Mаrie gave in 1987. The divorce decree Dakota Smith, Evans, Sioux Davenport, Hurwitz & children, couple’s two custody of the joint Falls, appellant. plaintiff custody. primary retained although Arthur Haberstick, Haber- Fosheim & Carl F. decree, exercised Patricia By the divorce stick, Huron, appellee for defendant аnd a certain number rights for visitation Patricia E. Kneen. during months and one to two weekends Smith, Smith, Mitch- E. Tinan & Steeves the summer. ell, appellee Arthur E. for defendant and 8, 1989, Patricia entered September On Kneen. purpose for the of exer- property dispute A cising rights. her visitation HENDERSON, Justice. parties concern- erupted the two Arthur con- refusal to contact Patricia’s HISTORY/ISSUES PROCEDURAL during cerning the welfare of the children Additionally, Ar- Company the summer visitation. Insurance North Star Mutual chil- Star) thur was concerned over where (North this action commenced during the summer visitation. against Patri- dren resided Circuit Court Fourth Judicial concerns, (Ar- Arthur refused (Patricia) Because of these Arthur Kneen cia Kneen A scuffle custody. thur), complaint. to let Patricia take Patricia forcibly took ensued when Arthur motion to dismiss. Arthur Patricia filed a then out of her car and removed one of the Our review considers the minor children. Patricia then re-entered summary judgment order. South Dakota side оf the the front driver’s car with the may grant summary judgment courts passenger child in the other minor side. At when, viewing light evidence *3 point, parties’ this assertion of the na- nonmoving most favorable to the party, the diverge. Admittedly, ture of the offense moving party clearly shows that there is grabbed forcibly Patricia in an at- present. not аn issue of material fact Wil tempt again to remove her from the car Co., 207, 212, Ry. son v. Great N. 83 S.D. gain and of the child in the control car. 19, (1968). was at this time Patricia’s arm was occurrence, During this broken. whole Pa- DECISION tricia numerous also suffered bruises and bumps body. about her I. Did the trial court initially err in complaint against Patricia filеd a civil refusing to consider North Star’s declara- containing counts. She based tory judgment action? We hold that it damages her claim for on alternative theo- did. negligence, i.e., alleges ries. I Count argues declaratory North Star that a negligent injuries. acts caused her judgment proper action is the vehiclе for tort, alleges i.e., II Count an intentional determining, pre-trial, whether the claims intentionally that Arthur acted to inflict underly- asserted its insured in the injuries. trigger These two counts the dis- ing trigger coverage lawsuit1 pute between North Star and Arthur. policy. Additionally, policy pro- Arthur had a of insurance argues declaratory judgment that a action cured from North Star. Under the “Exclu- proper determining gener- is the vehicle for policy, sions” section of this insurance ally, pre-trial, whether it has a to following provision is included in subsec- defend Arthur Kneen. “(This policy apply tion l.h.: does not to The granting trial court based the Order liability) resulting bodily injury from or partial summary judgment thereby dis- — property damage intentionally by caused posing declaratory judgment ac- or at the direction the insured.” premise (1) tion—on the the declarato- addition, policy provides coverage ry judgment action would not settle the liability “bodily injury property dam- case; (2) controversy age by caused an occurrence” to which the obligations of North Star to Arthur cannot coverage of policy applies. Occurrence be determined until after trial of under- is defined in the to mean “an acci- ” case; (3) lying any granted relief from dent .... action re- declaratory North Star asserted in its sult in two trials instead of one. North it had no opportunity Star still had the to reserve its provide coverage Arthur nor for him in the coverage to contest after trial. by action initiated Patricia. pursuant North Star initiated this action contends that Patricia’s claim Judgment Declaratory Arthur arises out of an South Dakota’s intentional is, therefore, Act, 21-24, specifically citing act and that such SDCL claim ex- cluded coverage conjunction under the North 21-24-14.2 In 21- with SDCL 24-14, 15-6-57,3 North Star cites to SDCL Declaratory Judgments. 1. Kneen v. Civ. 90-011. 3.15-6-57. procedure obtaining declaratory a 2. SDCL 21-24-14. 21-24, judgment pursuant chapter shall remedial; chapter right chapter, is declared tо be its in accordance with this and the purpose by jury may is to settle and to afford relief from to trial be demanded under the uncertainty insecurity respect provided with relations; circumstances and in the manner status, rights, legal and other and is 15-6-58 and 15-6-39. The existence of anoth- liberally adequate remedy preclude judg- to be construed and administered. er does not
9H
action
authority for
that a
Judgments, as
Declaratory
properly utilized to resolve such a contro-
to have the
argument that it is entitled
versy
an insurer and an insured.
declaratory
by the
issues resolved
company initi-
In that
an insurance
prior to trial of the under-
judgment аction
seeking
declaratory judgment action
ated a
lying lawsuit.
rights and duties aris-
determination of its
trial court has
Unquestionably, a
out of an insurance
issued to its
deny
grant or
discretion to
prior
The action
initiated
insured.
See, Royal Indem. Co. v.
judgment action.
any underlying
the commencement of
ac-
N. Y.,80 S.D.
Metropolitan
Cо.
Cas.
claiming
injured
to have been
tion
those
(1964).
*4
primary
the insured. The
by the acts of
by
its discretion
the trial court abused
by
declaratory
the
question to be resolved
not have the
ruling that North Star could
binding
whether there was a
the under
coverage question decided until
existing
policy agreement
be-
ruling by
resolved. The
lying action was
parties. This issue could not
tween the
granting Arthur’s motion for
the trial court
underlying
in the
have been determined
summary judgment in the declarato
partial
lawsuit,
only
in
it could
have been resolved
of interest.
ry
created a conflict
action
hence,
action,
separate
a
the need for a
establishing
in
has an interest
in
Similarly,
scope
beyond
were
the
that Arthur’s acts
coverage issue will not
present
the
case the
owes Arthur the
policy, yet
the
it also
underlying
in the
action. North
be decided
claims.
against Patricia’s
duty to defend
underlying ac-
party
is not a
to this
type
has been dealt with
of conflict
by
not be barred
tiоn.
it will
Michigan
previously by the
courts:
judicata or collateral
the doctrines of res
cases,
liability in-
In earlier
automobile
declaratory judg-
estoppel
bringing a
declaring
judgments
denied
surers were
Mfg.
after trial. Black Hills
v.
ment action
liability
policies on the
their
153,
Indust.,
157
Felco Jewel
question could be deter-
ground thаt the
(S.D.1983).
insurer
in an action
the
mined
additionally concerned that North
We are
of the insured’s
after the determination
prejudiced if the cover-
may
unduly
de-
liability_
practical
The
effect of
prior
trial of the
to
age issue is not decided
nying declaratory relief was to force
is
possible
A
scenario
underlying action.
on
liability
to conduct the defense
insurer
stipu-
liability or
could admit
that Arthur
the insured when he was sued
behalf of
leaving
pow-
negligence,
late to
though it
injured party, even
Further,
its interests.
to defend
erless
might subsequently be determined
have an interest
and Patricia
both Arthur
was not covered.
It is
the insured
having
conduct detеrmined
in
Arthur’s
type
that cases
this
very
reason
“intentional,”
than
“negligent,” rather
consistently
recognized
been
as
have
insurance cov-
scope of the
subjects
declaratory re-
appropriate
erage.
jurisdictions.
other
in
lief
Morelli,
314
Group
Mich.
Ins. Co.
noted,
21-24-
As we have
(cita-
672,
(Mich.App.1981)
674-75
N.W.2d
21-24,
Da
Chaptеr
South
provides that
14
added).
omitted) (emphasis
tions
Act, is to be
Declaratory Judgment
kota’s
See,
and administered.
has,
liberally
construed
past,
allowed
This Court
642, 647-48,
Herseth,
214
Kneip
87 S.D.
declaratory judgment ac-
bring a
party to
(1974).
keeping with the
rights and duties N.W.2d
determine the
tion to
Act,
a declara
insureds,
believe that
goals of this
we
pursuant insurers and
proper vehicle
judgment action is the
Casualty
tory
an insurance
Standard
prior to
coverage question
450 to resolve
Boyd, 75 S.D.
Co. v.
request-
The
underlying action.
trial of the
(1955).
determined
Boyd,
this Court
declaratory judg-
hearing
an action for a
relief in cases where it is
ment for
may
it on the calendаr.
speedy
advance
ment and
appropriate.
court
order a
The
jury
trial for the
ed
...
if
arguably appears
it is clear or
will
determine if
in
pleadings
action
best
from the face of the
acts
negligent or intentional.
action
the insured
al-
Thereby,
were
true,
leged claim,
will be
within
resolved
if
falls
covеrage,
the insurer must
question
duty
and the
of North Star’s
defend.
ends,
though
plead-
review then
even
action,
defend Arthur
ings
ambiguous
are
or reveal other
settled.
claims not
policy,
covered
and not-
Trial
grant-
court abused its discretion in
withstanding that extraneous
indi-
facts
Arthur’s motion for
summary
false, groundless
cate
is
the claim
judgment.
Wе reverse
remand for
even fraudulent.
proceedings consistent with North Star’s
(Emphasis supplied).
Id. at 491-92.
We
declaratory judgment.
similarly
Bayer
held in
v. Employers Rein-
II. Did the trial
err
court
Corp.,
surance
860-61
Star has
Arthur Kneen in the
lawsuit?
It is
clear
Star’s
holdWe
that it did not.
*5
appears
defend
plead
the face of the
obligated
asserts that it is not
ings. North
has a duty
Star
its
defend
underlying
to defend
in
Arthur
the
lawsuit
insured in the
lawsuit because
complaint
because the
bases a claim that is
pleadings
true,
the
regarding negligence, if
beyond
coverage
the
the
poli-
of
provide
potential
for
liability.
basis
cy. North Star advocates that the facts in fact thаt the lawsuit is based on theories
the case are such that it could be concluded brought in the alternative does not relieve
coverage
that no
exists
the
for
duty
North Star of its
to defend. The
any resulting liability. It is on this further
South Dakota Rules of Civil Procedure al
basis,
appeals
that North Star
from the
party
low a
to sеt forth two or
state
more
trial court’s Order
summary
for
alternatively
ments of a claim
hypotheti
judgment.
cally
separate
in
counts. SDCL 15-6-
8(e)(2).
Initially,
reiterate
our
in
we
the
Star bears
burden of
Hawkeye-Security
Clifford,
Ins. Co. v.
366
showing
duty
has no
it
to defend its
(S.D.1985). Therein,
N.W.2d 489
we stated
insured. The insurer must
the
show that
an
duty
insurer’s
to defend and the
claim clearly
falls outside of
cover
duty
indemnify
on a totally indepen
are
age. City
Pierre
Fort
v. United Fire
footing.
dent
We held that an insurer’s
Co.,
(S.D.
and
463
Cas.
847
duty to defend was far broader than the
1990); Bayer
Employers
Reinsurance
duty to indemnify.
at
Id.
490.
861;
Corp.,
at
383 N.W.2d
Hawkeye-Secu
As
previously,
alleged
noted
Patricia
If,
rity,
has
Johnson
Oil
(S.D.1984).
How-
in the
lawsuit.
Star has acted
or without rea-
seeking
denying
III. Did the trial court err in
sonable cause
a clarification and
obligations.
determination
its
Arthur Kneen’s
and
See,
expenses
defending
Family
incurred
American
Mut. Ins. Co. v.
fees
Merrill,
action? We
Through procеedings a Notice of remanded for consistent with entitled, pursu opinion. Kneen asserts that he was 58-12-3,
ant to
to an award of attor
SDCL
AMUNDSON, J.,
MILLER, C.J. and
ney’s
expenses incurred in defend
fees and
concur.
provides
follows:
SDCL 58-12-3
as
SABERS, J.,
specially.
concurs
Attorney
58-12-3.
fees—Recov-
WUEST, J., deeming
disqual-
himself
employ-
ery
in action
self-insured
ified,
participate.
did not
*6
failing
pay
er or insurer
loss—other
remedies not barred.
SABERS,
(specially concurring).
Justice
proceedings
In all actions or
hereafter
circumstances,
Under these
it is far bet-
against any employer
is
commenced
who
through declaratory
ter to decide this case
self-insured,
62-5-4,
рursuant
or in-
to §
judgment, prior
trial of the
company, including any recipro-
surance
lawsuit.
exchange,
any
cal or interinsurance
on
appears
it
clear that Arthur broke
Since
any type or kind
or certificate of
arm,
that he will be
Patricia’s
it follows
insurance,
appears
it
the evi-
if
negligently
damages,
fоr the
either
liable
exchange
company
dence that such
or
intentionally.
pay
has
amount of
refused
full
intentional,
negligent,
pays.
If
If
loss,
vexa-
such
and that such
is
refusal
only real issue
pays.
Since the
cause,
tious or without reasonable
pays,
de-
is whether Arthur or
labor,
department of
the trial court and
claratory judgment can resolve the real
court, shall,
appellate
if
complicated
issue and eliminate the
conflict
plaintiff,
or an award is rendered for
question
North Star would
of interest
plaintiff
allow the
a reasonable sum as
face in the
lawsuit.
otherwise
to be recovered and
an
fee
not
fair to force North Star
It would
be
part
...
collected as a
the costs
posi-
complicated
into a
conflict of interest
58-12-3, attorney’s
paraphrase
To
(Arthur) in the un-
tion
its insured
com-
fees
awarded if the insurance
derlying
easily
when it can so
lawsuit
pany
pay
has refused to
the full amount
generally,
аvoided beforehand. See
Car-
loss,
that such refusal is vexatious
(S.D.1991)
Heikkila,
is clearly erroneous standard. Tri-State Bollinger, Co. Minnesota v.
Insurance