CASSANDRA SKJONSBERG, Claimant and Appellee, v. MENARD, INC. and PRAETORIAN INSURANCE COMPANY, Employer, Insurer and Appellants.
#28438, #28445-r-DG
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
2019 S.D. 6, OPINION FILED 01/16/19
THE HONORABLE JOHN PEKAS, Judge
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT, MINNEHAHA COUNTY, SOUTH DAKOTA; CONSIDERED ON BRIEFS ON AUGUST 27, 2018
JEFFREY A. COLE
WILLIAM SIMS of
Northern Plains Justice, LLP
Sioux Falls, South Dakota
Attorneys for claimant and appellee.
J.G. SHULTZ of
Woods, Fuller, Shultz & Smith, P.C.
Sioux Falls, South Dakota
Attorneys for employer, insurer and appellants.
[¶1.] Cassandra Skjonsberg suffered a workplace injury to her right foot that required surgery while employed by Menard, Inc. (Employer). The South Dakota Department of Labor and Regulation awarded partial summary judgment in favor of Skjonsberg for her incurred medical expenses. After a two-year delay, Skjonsberg filed a second motion for partial summary judgment to recover the existing medical expenses. Employer and its insurer, Praetorian Insuranсe Co. (Insurer), paid the outstanding medical expenses and claimed a decision on the second motion was unnecessary because the issue was now moot. The Department nonetheless granted partial summary judgment in favor
Facts and Procedural History
[¶2.] On November 25, 2011, Skjonsberg fractured her right foot while at work for Employer. Skjonsberg was prescribed a device for her foot called a “Roll-A-Bout” to assist her in moving around. Employer and Insurer refused to pay for the device and Skjonsberg instead used crutches and a “CAM boot.” Skjonsberg underwent surgery at Core Orthopedics in Sioux Falls on December 23, 2011. During recovery, on January 16, 2012, Skjonsberg sustained a right fibular ankle fracture after allegedly walking with the crutches and CAM boot. The injury required surgical intervention to repair.
[¶3.] Skjonsberg incurred medical expenses related to the two injuries. However, after a dispute arose regarding coverage, Employer and Insurer stopped paying temporary total disability benefits and medical bills. As a result, Skjonsberg filed a pеtition for hearing with the Department on November 7, 2012.
[¶4.] On April 2, 2013, Skjonsberg requested discovery consisting of 102 interrogatories and 35 requests for admissions. After multiple attempts to get Employer and Insurer to answer the discovery requests, Skjonsberg moved for partial summary judgmеnt, seeking recognition from the Department that both her injuries were work related and that Employer and Insurer were responsible for her medical expenses. Employer and Insurer resisted Skjonsberg‘s motion and contended that her discovery requests were burdensome and excessive.
[¶5.] On May 21, 2014, the Department entered its decision and order on Skjonsberg‘s motion for partial summary judgment in favor of Skjonsberg. The Department rejected Employer and Insurer‘s contentions, and required Employer and Insurer to сover the medical expenses for both of Skjonsberg‘s injuries. Skjonsberg‘s medical expenses went unpaid for two years.1
[¶6.] On September 9, 2016, Skjonsberg filed a second motion for partial summary judgment with the Department seeking payment of her unpaid medicаl expenses. Employer and Insurer responded to Skjonsberg‘s motion on October 12, 2016, by sending a letter to the Department that claimed Skjonsberg‘s outstanding medical expenses were being resolved. On October 31, 2016, Employer and Insurer submitted an affidavit in respоnse to Skjonsberg‘s second motion for partial summary judgment stating Skjonsberg‘s outstanding medical bills totaling $8,236.76 had been resolved by agreement with the health care providers. Employer and Insurer also filed a two-sentence resistance to Skjonsberg‘s motion fоr partial summary judgment claiming the issue was moot. Skjonsberg presented no statement disputing these facts submitted by Employer and Insurer.
[¶7.] The Department granted Skjonsberg‘s motion on November 29, 2016. The order repeated the Department‘s conclusions from its first order by stating that Employer and Insurer were responsible for the medical expenses for both of
[¶8.] Employer and Insurer then appealed to the circuit court on May 1, 2017. However, Employer and Insurer failed to file a statement of issues within ten days pursuant to
[¶9.] Employer and Insurer appeal, raising one issue: whether the Department erred in granting Skjonsberg‘s second motion for partial summary judgment when they claimed the issue was moot. Also, by notice of review, Skjonsberg appeals the circuit court‘s decision granting Emрloyer and Insurer leave to file a statement of issues.3 Skjonsberg argues that if this Court is inclined to reverse the circuit court‘s ultimate decision, we should apply a “plain error” standard of review for failure to abide by
Standard of Review
[¶10.] On appeal from a circuit court‘s decision under
Analysis and Decision
[¶11.] Employer and Insurer claim that the Department erred in granting Skjonsberg‘s second motion for partial summary judgment seeking payment of medical expenses because the issue was moot. Employer аnd Insurer claimed they had already paid Skjonsberg‘s medical bills prior to the Department‘s decision.
[¶12.] “This Court renders opinions pertaining to actual controversies affecting people‘s rights.” Larson v. Krebs, 2017 S.D. 39, ¶ 13, 898 N.W.2d 10, 15 (quoting In re Woodruff, 1997 S.D. 95, ¶ 10, 567 N.W.2d 226, 228). When a claim becomes moot not during the pendеncy of an appeal but prior to the final order from which a party appeals, we must vacate the ruling of the lower court as moot and remand with instructions to dismiss. See, e.g., Phelps-Roper v. Koster, 815 F.3d 393, 397-98 (8th Cir. 2016) (vacating a judgment on appeal for mootness when the challenged statute was repealed while the action was pending in district court and remanding with instructions to dismiss).4
[¶13.] Here, no controversy exists or existed before the Department that the Employer and Insurer are responsible for Skjonsberg‘s medical expеnses from her two injuries. The Department‘s 2014 order—which was not appealed—had already determined that Skjonsberg‘s injuries were work-related and that Employer and Insurer were liable to compensate her for her medical expenses. Further, bеfore the Department entered the 2016 summary judgment order, Employer and Insurer presented undisputed facts in resistance to Skjonsberg‘s motion for summary judgment that the medical expenses at issue had been fully resolved with the medical providers. This fact is supрorted in the record by the October 31, 2016, affidavit of counsel for the Employer and Insurer, J.G. Shultz. Shultz stated that “since October 12, 2016 . . . I have resolved the billings outlined . . . by agreement with the health care providers.” Attached to the affidavit was a complete list of dates, descriptions, and amounts of Skjonsberg‘s medical expenses. The total of these expenses is listed as $8,236.76.
[¶14.] Because Employer and Insurer paid Skjonsberg‘s medical expenses, the Department lacked jurisdiction to grant summary judgment—the issue of payment was moot before the Department and remains moot before this Court. A decision on the issue of whether the Department erred in granting Skjonsberg‘s second motion for partial summary judgment “will have no practical legal effect upon the existing controversy.” Sullivan v. Sullivan, 2009 S.D. 27, ¶ 11, 764 N.W.2d 895, 899 (quoting Investigation of the Highway Constr. Indus. v. Bartholow, 373 N.W.2d 419, 421 (S.D. 1985)). “No matter how vehemently the parties continue to dispute the [issue] that precipitated the lawsuit, the case is moot if the dispute is no longer embedded in any actual controversy about the plaintiffs’ particular legal rights.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91, 133 S. Ct. 721, 727, 184 L. Ed. 2d 553 (2013) (quoting Alvarez v. Smith, 558 U.S. 87, 93, 130 S. Ct. 576, 576, 175 L. Ed. 2d 447 (2009)).
[¶15.] Nonetheless, exceptions to the mootness doctrine exist that could allow a full determination of Employer and Insurer‘s appeal. One such exception is the ‘capable of repetition, yet evading review’ exception, which аpplies when: ‘(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same actiоn again.‘” Larson, 2017 S.D. 39, ¶ 14, 898 N.W.2d at 16 (quoting Rapid City Journal v. Delaney, 2011 S.D. 55, ¶ 8, 804 N.W.2d 388, 391). Even if we were to assume Employer and Insurer could meet the first prong, there is no indication in the record that the issue would recur. The repetition must be more than just a theoretical possibility: rather, there must be a “demonstrated probability” thаt the same controversy will recur involving the same complaining party.” Boesch v. City of Brookings, 534 N.W.2d 848, 850 (quoting Murphy v. Hunt, 455 U.S. 478, 482, 102 S. Ct. 1181, 1184, 71 L. Ed. 2d 353 (1982)). As Employer and Insurer cite the unlikely recurrence of the present issues and facts of this case, the exception is not applicable.5 See Sullivan, 2009 S.D. 27, ¶ 13, 764 N.W.2d at 900 (stating that “repetition of the exact issue is unlikely” when a controversy is premised purely on factual circumstances).
[¶16.] Therefore, the claim for medical expenses set forth in Skjonsberg‘s motion for partial summary judgment became moot, prior to the Department‘s final order granting summary judgment, and was moot when the circuit court reviewed it on appeal. We accordingly reverse the circuit court‘s judgment affirming the Department‘s decision, and remand to the circuit court with instructions that the court order the Department tо vacate its order and dismiss Skjonsberg‘s claim for medical expenses set forth in her motion for partial summary judgment dated September 9, 2016. See Corrick, 298 U.S. at 440, 56 S. Ct. at 832 (noting that an appellate court has jurisdiction for the limited “purpose of correcting the error оf the lower court in entertaining the suit.“). In light of our holding, we need not consider Skjonsberg‘s argument posed in her notice of review.
[¶17.] KERN, JENSEN, and SALTER, Justices, concur.