*1 avoiding support. Marriage child See ry in determining support. child In this Foley, case, at pri- 500. Donald’s there is no evidence that Donald’s act mary, paramount obligation support is the of striking girlfriend his represented an Kost, of his four children. attempt 515 N.W.2d at to induce his termination and doing 214. Instead of everything in avoid his child support his responsibility. Ac- power to maintain his employment, cordingly, Don- his child support obligation deliberate, ald’s violent should acts led to his fir- be based on his current salary. ing. firing His was neither fortuitous nor
beyond his control. Now he seeks hoist significant economic ramifications of
that on his four children. This cannot be
condoned. His actions were voluntary.
There was no abuse of
discretion
deviat-
SABERS, Justice (dissenting).
Appellees.
dants and
[¶
I respectfully
19.]
dissent. Unless
No. 21357.
done with the idea of intentionally reduc-
ing one’s
support
child
obligation, a
Supreme
child
Court of South Dakota.
support obligor’s termination from employ-
Argued Sept.
2000.
ment
greater
and loss of
income should not
Reassigned March
2001.
be viewed as a voluntary act intended to
deprive
Rather,
one’s children
support.
Reassigned
Oct.
2001.
support
child
obligation should be based
Decided Jan.
2002.
on an
salary.
individual’s current
Rehearing
Denied Feb.
I
submit that this Court should
follow the reasoning set forth in Foley, 501
Lee,
These cases state that “while obligor] [the
was responsible job, for the loss of his
believe he did not intend to deprive the
children of support or had a reckless disre-
gard for their well-being.” Foley, 501
N.W.2d at 500. When there is no evidence the obligor’s misconduct represents
an attempt to induce termination and avoid
a support obligation, a court should not be
permitted to obligor’s use the former sala- *3 doctor, coverage must
covered acts separate in a trial. We affirm be decided and remand for part, part, reverse trial.
A.
Background leading appeal The events to this Miller, Gary Dakota. En- began in South gelmann medicine there at practiced *4 July In he County Hand Clinic. Nata- performed pelvic a examination on exam, During sha she became Baloun. of Op- K. David M. Wilk Bethany Kulp, suspicious of his unusual motions and his Paul, Donnelly, St. penheimer, Wolff & abruptly to her. she sat closeness When MN, Gering of Daven- Cheryle Wiedmeier penis. his fled the room up, she saw She Evans, Smith, Falls, Hurwitz & Sioux port, her police. and contacted the After later plaintiff appellant. for and other women experience public, became Andreasen, N. Richard Willia J. Steven came Plaintiffs Audra Martin- forward. Keane, Gildemeister, & Sioux Willia maas, Bertsch, Froning Nancy and Natalie IA, appellee and Nata- City, defendant lodged against Engel- complaints similar sha Baloun. charged multiple mann. He was Parsons, Janklow, Ronald A. A. Russell his raping patients. counts of Miner, Johnson, Mar- Heidepriem, Jr. of agreement prose- In an with the [¶ 3.] Janklow, Falls, S. low & Sioux Sheila cutor, guilty to one Engelmann pleaded Miner, Johnson, Heidepriem, Woodward rape, but degree count of second before Janklow, Yankton, for defen- & Marlow sought plea. his sentencing, he to withdraw Bertsch, Natalie Brian appellees dants and his He request. The circuit court refused Bertsch, Froning, Greg Froning, Nancy Engelmann, 541 In State v. appealed. K. Audra Martinmaas. and (S.D.1995), reversed, con- N.W.2d 96 reason cluding that he had a nonfrivolous (on KONENKAMP, reassign- Justice plea at the time his because withdraw ment). processes his were thought he entered it judgment In ac- declaratory this [¶ 1.] medications and by prescription blunted malprac- brought to contest medical tion trial. proceeded He depression. severe coverage, circuit court insurance tice charges. juryA him all acquitted judgment against granted summary Martinmaas, Bertsch, insurer, Plaintiffs [¶ 4.] that the verdict reasoning general brought against Froning civil actions trial was con- and malpractice in the doctor’s trial, After a consolidated coverage Engelmann. The question. on the clusive $450,000 theories, damages to awarded jury tort jury in trial heard two $50,000 each Bertsch’s plaintiff each and coverage and anoth- permit one would We affirmed Froning’s the insurer husbands. er that would not. Because 2000 SD Engelmann, Martinmaas v. to contest right reserved There, what, of this majority if any, of fact remains on question Engelmann’s improper are to the Court held damages allocable “malpractice” constituted sexual contact tion under the liability policy? physician’s duty it breached public because Does policy preclude St. Paul practice and skill use care medi- from defending and indemnifying Engel- ¶at 31. Natasha Baloun cine. Id. also mann the Baloun action or indem- awaiting Her case is still trial. sued. nifying him the consolidated ac- tion? We restructure these issues for St. Paul Fire & Marine Insur- analysis, better but we need not address Company Engelmann ance insures and the question the last because we conclude that County Hand Clinic under two different neither insures inten- policies: general liability pol- commercial tional misdeeds. icy and a professional liability policy. action, declaratory judgment St. Paul
contends that it has duty indemnify no B. for the verdict in the Policy The Commercial General consolidated trial and no to defend or indemnify him in pending Baloun case. general commercial After summary judg- both sides moved for policy contains provisions several applica ment, agreed the circuit court that rape ble here. It “bodily injury” covers caused exploitation covered, and sexual *5 are not “event,” by accident, an defined as “an but held nonetheless that the insurer had including repeated continuous or exposure by not “shown that the facts found the substantially the same general harmful jury as the basis of the award the [were] conditions.” The policy specifically ex ” rape alleged sexual abuse.... and/or coverage cludes for “bodily injury or prop Concluding that the tort verdict was sus- erty damage ... expected or intended ceptible constructions, to two different and any protected person.” More particularly, that one was sustainable for coverage pur- policy does not insure employ Clinic poses, the court that ruled St. failed ees, including Engelmann, for “bodily inju as a matter of law its burden of proving ry personal or injury that results from noncoverage and was obligated therefore sexual abuse per committed that ” indemnify Engelmann for the entire .... son In the policy, “sexual abuse Lastly, verdict. the court held that St. any physical, means mental or moral Paul must defend the pending Baloun suit harassment or assault of a sexual nature Clinic, Engelmann and the but de- against any person.” Finally, policy clined to decide before the verdict in that carries a “professional services” exclusion.1 case whether St. Paul indemnify must En- circumstances, Under related the Louisi gelmann and any the Clinic for award Bal- Supreme ana Court compre ruled a oun obtain. hensive business policy insurance excluding appeals personal injury
[¶ 6.] St. Paul on the following arising out of (1) professional issues: Are the damages awarded in services furnished no cover age consolidated trial covered for medical malpractice. under the McCarthy v. (2) Berman, (La.1996). St. Paul policies? Is Paul obligat- St. 668 So.2d Likewise, ed to defend against the Bal- conclude that St. Paul’s com oun action? obligated Is St. Paul general to mercial liability policy provides no defend the Clinic the Baloun ac- personal injuries from sexual among 1. Listed the exclusions is the perform follow- manee of or failure to health care ing: injury damage "We won't cover or or professional services.” expenses perfor- medical that result from the and intellectual skill. The learning rendering failing ing or or from assaults qualifies it Hence, nature of an act professional med- services. professional render physician A form, “professional a service.” is not any malpractice, ical patient pretense a on sexually under no assaults Paul is occurrence. St. covered rendering performs pro- medical care no indemnify Engelmann to defend or Many courts follow the service. policy. this fessional the Clinic under and as- blueprint. Simply put, sexual Marx C. patients physicians of medical saults contemplated functions are not covered Policy The Professional professional ser- rendering within li professional vices.2 “damages resulting policy covers ability withholding “providing from” contrast, minority per- In a view dutyA indemni services.” lead in a few courts. The decision sists in showing only fy arises Ins. Fire & Marine area is St. Paul contingency occurred. Headlee sured Asbury, Ariz. P.2d 540 Co. v. 69 S.D. New York Ins. There, the court ruled (Ariz.Ct.App.1986). Life commit professionals tortious acts that all specifically “professional not define does inseparable that are intertwined term, we For on this guidance services.” provided are covered occur- the services In jurisdictions. to other Marx look formulation, As- Marx rences. Unlike the Compa Indemnity Accident insurance bury malpractice declares that Hartford ruled Supreme the Nebraska Court ny, physician, conduct covers an act to find whether constitutes gynecologist Asbury, physician. service, look “not to the *6 courts professional patients’ cli- his improperly manipulated party performing title or character during pelvic routine exams. torises 12, act, Neb. but to the act itself.” 183 inseparable found this misconduct court (1968). Thus, 870, cover 157 N.W.2d 872 professional services. acts or encompasses “professional”
age reject the As- Although we services, performance [¶ 10.] entailing those policy vocation, St. Paul’s occupation requir- bury rationale because calling, or of a Co., relationship patient 106 sexual & Marine Ins. cian's 2. Hirst v. St. Paul Fire service); 792, 440, (1984) (inten- Paul professional Smith v. St. 444 not a Idaho 683 P.2d 130, Co., 132 353 N.W.2d professional Fire & Marine Ins. sexual not within tional assault 1984) (sexual (Minn. assault medical doctor coverage purposes); for St. insurance services Quintana, during the of boys course 165 on three minor & Ins. v. Paul Fire Marine 60, (1988) liability 719, by professional not covered 63 treatment Mich.App. only were "for the pro- as doctor's acts (damages performance insurance arising out of of prurient interests” and damages of [his] include for satisfaction services do not fessional assault); providing nor with- & thus "involved neither v. St. Paul Fire sexual Niedzielski services”); 141, 130, Washing- Marine, professional holding of 133 134 589 A.2d N.H. Hicks, Wash.App. (sexual (1991) Guar. v. ton Ins. 623, Ass’n does not fall within assault 625, (1987) services); (chiroprac- 627-28 meaning 744 P.2d professional of dental LaMure, part of medical treat- Liability sexual conduct not Physicians v. tor's Mut. N.M. Blakeslee, (sexual ment); (1993) Co. v. Standard Fire & Ins. N.M. P.2d Wash.App. P.2d 1176-78 pretense medical committed under of acts (dentist's fondling drugged pa- of act professional services in the context care not policy not covered insurance coverage); tient's breasts malpractice Cluett of insurance (Tex. Co., professional assault was not as sexual 829 S.W.2d Med. Protective services). 1992), (writ denied) (a pediatri- App.- Dallas plainly coverage language speaks legitimate for fords no coverage, basis for but services, what the second theory? we believe that even professional Asbwry’s permit coverage rule would not A liability policy pro Perhaps a doctor’s hand inappropri- here. vides protection professional for services touching part patient’s genitals of a ately contemplates coverage “improper for or way inseparable in some from the incorrect medical treatment of a physical performing pelvic function of examina- ailment the insured doctor.” Smith penis way tion. But a doctor’s in no be- Co., St. Paul Fire & Marine Ins. in, with, longs much less intertwines (Minn.1984). The act in All gynecological exam. but one of the question act, must be a “medical or dental plaintiffs raped testified that were not an act or service requires no when penis inserted his into professional skill.” Lindheimer v. St. professional liability them.3 Under Paul Fire & Marine Ins. 643 So.2d policy, injury from sexual misconduct can- 636, 638 (Fla.Dist.Ct.App.1994). having not be considered as been incurred think theory [¶ 13.] We the second al- from the “providing withholding pro- for lows that the medical ex- fessional services.” See David Florig, S. Martinmaas, Bertsch, perts for and Fron- Coverage Insurance Sexual Abuse or for ing testified that Engelmann’s unorthodox Molestation, 30 Tort & Ins. L.J. 724 methods, such as his “gauze procedure,” obligation Paul is under no St. fell below the standard of care physi- indemnify Engelmann for such acts. But cians. His acts under the theory, second our analysis does not end here. unsuitable, although medically lie within scope professional services and thus question only If the were are covered under his whether professional liability policy. Yet St. contends that assaults, rapes covers and sexual plaintiffs’ own renditions of fact belie the then, seen, as we have the answer is clear- theory, second since plaintiffs de- ly Rape exploitation no. and sexual in the scribed Engelmann’s acts as intentional pelvic course of a exam are intentional acts sexual question assaults. The is not that situated well outside the ambit of failure to simple. plaintiffs’ Much of the observa- *7 use due care and skill in providing profes- tions were circumstantial because they Here, however, sional services. there could not see what Engelmann was doing. were two recovery given theories of to the The jury may have part doubted of their (1) jury in malpractice the medical trial: testimony, but still accepted enough of it “negligence” by in “engaging improper to undergird experts’ the opinions that En- sexual contact plaintiff with each during gelmann’s acts fell below the standard of examination,” her gynecological care. We see as this a factual Sup- issue. “negligence” by performing “gynecological porting this conclusion is the fact that the [using] examinations improper positions, position “knee-chest” Froning had to as- procedures and in methods conducting exam, sume for a pelvic though not medi- those theory examinations.” The first af- cally circumstance, indicated her in- 3. Baloun testified that saw original she action that did not claim penis during up. the exam when she sat having was intercourse with her. Whether having Bertsch "felt like she was sex.” Mar- jury the raped believed were remains having tinmaas "felt she as if was inter- unknown. Froning only course.” plaintiff is the in the
199 212, 19, Martinmaas, 21 That both contact. no offensive volved ¶ 15, summary judgment at does 612 605. sides for N.W.2d move SD 2000 issues, genuine was sexu- not mean that there are no claimed that she Froning never Martinmaas, 85, obliging grant judgment 2000 SD to for one a court ally assaulted. ¶ at Fidelity 608 n. or & n. side the 'other. American Edinburgh & Ins. Casualty Co. London theory allows The second (4thCir.1965). Both mo 354 F.2d know coverage, we do not which but for denied if the court detects tions must be malpractice action theory genuine of fact or issues genuine issues it both. Al adopted adopted whether inferences to be drawn from regarding the court ruled that tort though the circuit States, Hindes v. United the facts. collaterally estop did not St. judgment (5thCir.1964), denied, cert. F.2d the court noncoverage, to assert L.Ed.2d 377 U.S. S.Ct. jury’s verdict general used nonetheless 178; § Holtzoff 3 Barron and finding as the basis for against insurer 1958). (Wright ed. granted summary coverage. court Paul, reckoning that St. judgment D. subject two differ tort verdict was constructions, and one was sustainable ent Coverage Right Litigate Insurer’s view, In our nei purposes. an Generally, insurer [¶ summary judg side entitled ther right defends an insured waives on issue. What ment noti defenses unless first assert to the damages can be allocated
victims’
liability
fies
that it disclaims
the insured
theory must
negligence
be
second
covered
Appleman,
7 C.J.
policy.
under the
See
in this
as
of fact
de
litigated
question
§ 4694
p.
& Practice
Insurance Law
claratory action.
1979)
(Bendal
Appleman].4
[hereinafter
ed.
a concep
A court faces
law, if an insurer has
Dakota
Under South
ruling
on a sum
tually impossible task
insured,
it is bound—
to defend
facts
motion
de
mary judgment
based
rights
absent a reservation
—under
multiple
case in which
cided
another
estoppel by those
of collateral
doctrine
gener
only
presented
were
theories
the in
in the action
facts decided
Here, the verdict
al
was rendered.
verdict
judgment
aré essential to
sured that
of at
susceptible
in the
.case
re
liability,
elects or
whether the insurer
interpretations.
two reasonable
least
Ryan, 66 S.D.
Ziegler
fuses
to defend.
Summary
granted only
can
judgment
(S.D.1939).5
285 N.W.
genuine
any
“there is no
issue
when
hand,
15-6-56(c).
if
the other
17.] On
Not
material
fact.” SDCL
*8
issue,
defending the
in
in
the insurer’s interest
facts be not
but
only must the
obligation to the
restricting its
on the
claim while
genuine
no
issue
there must be
also
a
of
conflict
terms of the
creates
facts.
be drawn from those
inferences to
in-
207,
and the
Co.,
interest between the insured
Ry.
N.
83 S.D.
v. Great
Wilson
Annotation,
& Fire
Liability
5. See
Pendleton v. Pan American
Insurance:
In-
also
also
4. See
96,
Co.,
(10thCir.1963);
in
Assumption
Casualty
or
De-
99
Continuation
317 F.2d
surer’s
of
Villasenor,
Brought Against the Assured as
Action
21
and Indem. Co.
Acc.
of
fense
Hartford
Regards
1099,
(1974).
Non-
Estoppel
Waiver or
1102
Ariz.App.
517 P.2d
of
Defense
Existing at
Time
Other
of
Defense
Accident,
(1954).
1148
38 A.L.R.2d
surer,
estoppel
principles
problems
can be no
there
liti-
and the
create
proceeding
in a later
those
gating
explained
issues
are
in the comment to the Re-
a
statement,
on which there was
conflict of interest.
§
Judgments
58:
Supreme
As the California
Court ex-
hand,
On
the
a
the one
[insurer] has
plained,
adequately
“if the insurer
reserves
duty to defend the
even if the
[insured]
right
noncoverage
its
to assert the
defense
claim
the
advanced
action
the in-
later,
bound
judg-
will not be
the
jured party
scope
is outside the
Gray
ment”
insured.
against the
v. Zu-
indemnity obligation.
carrying
In
out
263, 279,
rich Ins.
Cal.2d
P.2d
duty,
this
the
to
[insurer] must seek
(1966).
168, 178, 54
Cal.Rptr.
By
protect
though
the
even
[insured]
do-
issue,
reserving
noncoverage
the
a conflict
ing so
take positions
it must
on the
of interest
and the
will be avoided
inter-
contrary
behalf
are
its
[insured]’s
to
ests of the
and the
insured
insurer
example,
own interest.
For
the [in-
injured
defending against the
claimant will
may
charged alternatively
sured]
be
Likewise,
be identical.6
the Arizona Su-
with having
negligently
acted
and inten-
Court,
rule,
preme
declaring it the better
situation,
tionally.
such
it is to the
held that
there is a
“where
conflict of
claim,
[insured]’s interest
the
if sus-
interest between
insured and
in-
[an]
an
all,
tained at
be sustained on
of
the basis
surer,
parties
estopped
will
be
[to]
negligence
because
loss will then fall
litigat[e]
proceeding
a subsequent
those
[insurer],
on the
but it is to the [insur-
issues
was a
as to which there
conflict of
interest
claim of negligent
er’s
interest....”
Ins. Co.
Farmers
Ariz. v.
of
wrongdoing
liability
be resisted because
Vagnozzi,
138 Ariz.
P.2d
on that
fall
basis would
with the obli-
(1983) (faced
potential coverage
with a
de-
gation
indemnify.
to
fense,
properly
the insurer
reserved its
hand,
On the other
[insurer] has
right
the policy’s
to later assert
intentional
right
day
to its
in court on whether the
(Sec-
exclusion);
act
see also Restatement
[insured]’s
is within
scope
ond)
(1982);
§
Judgments
St. Paul
obligation.
the indemnity
A
corollary
Bros.,
Fire & Marine
Co. v.
Ins.
Crosetti
right
is that the [insurer] should not
Inc.,
P.2d
Or.
be estopped by steps or positions that
Insurers
are
obliged
have
[insurer]
taken in the
to keep separate
independent duty
course
performing
duty
to defend
obligation
defend
Hence,
from the
to indemnify
the [insured].
the usual rule
their insureds.7 A
conflict
interest “ex
that an
precluded
[insurer]
ists when
injured person’s
claim
determination of issues which he liti-
against the
is such that it
gates
[insured],
[insured]
could
an
behalf of
stated in
grounds,
§
sustained on different
one of
apply
should not
to an [insurer]
which is within
obligation
defends,
the [insurer’s]
compulsion
under the
of an
indemnify and another of which
independent
defend,
is not.”
an [insured]
Restatement,
§ 58.
Judgments
These
whom he has
conflict of interest.
Baize,
Snodgrass
See also
attempt
preserve
201 policy provides coverage. As whether the to reconcile these only way The acting under a “res- jurisdictions, in most recognize [insurer] to that an is duties is rights” proce- to defend of an established independent has an ervation legal ca- “An not in effect has two dure Dakota. insurer is South [insured] the to the regard notwithstanding participation [insured]. with pacities estopped insurer the to capacity his as defense of an action insured In being on claims timely of sued noncoverage risk if notice [insured]’s assert the to be” within “might be found to the insured that it has not waived given the a indemnity has obligation, [insurer] the policy.”8 under benefit of its defense counsel and provide Co., to responsibility 76 Connolly v. Standard Cas. S.D. [in- to the (S.D.1955). assistance defend supporting 119, 122 also See to regard [insurer’s without the sured] § at Appleman 297. interests, as a for a essentially guardian provided Engel- Paul St. [¶20.] [insurer], In as he capacity his ward. defense in his mal splendid mann with a indemnify to for responsibility a has Indeed, jury’s verdict is practice trial. the may be the in- liability as within such to argu so create at least an structured In latter demnity the ca- obligation. judgment is within able issue whether the by he be de- should not bound pacity, coverage.9 scope the of insurance Counsel he in an action which terminations breached the for could have if capacity in the former participated obligation fealty the insured if he had of to is conflict of interest between the there special interrogatories or advocated for may § [insurer] be two. See 36. rape and sex separate verdicts on to this differentiation required manifest now, reflect allegations. abuse must We its right qua [insur- a reservation of right chal though, that the insurer’s of when assumes defense er] lenge coverage Engelmann’s sexual [insured]. in the tort was not decided misconduct As insur trial could not have been decided er, him a Paul defended under reserva St. foreclosed there. St. cannot be rights A reservation of rights.
tion of challenge proceeding with to the the insurer will notice insured declaratory in this action. that the insurer is defend insured but the insurer is en have Because waiving any defenses it un not method, noncoverage question, titled contest policy. By this insurers der the parties for the to liabili we remand case provide the insured defense can part of what of question litigate the factual issue ty reserve for later delineating recognition purpose which grants for the of UCC also 8. South Dakota’s rights: policy. reservations of under verdict is covered who, Gray, Cal.Rptr. explicit Cal.2d at n. party A reservation promises rights, performs performance ("special n. at 178 114 n. P.2d performance in a manner de- or assents to might present potential conflict verdict party does manded or offered other Am., interest”); N. Cowan Co. v. Insurance thereby rights prejudice the reserved. 883, 897, N.E.2d Ill.App.3d SDCL 57A-1-207. circumstances, (1974). these counsel an enhanced obli hired the insurer owes with alternative theories of In connection Tank v. gation good to the insured. faith recovery, have that insur- some courts stated Casualty & 105 Wash.2d State Fire Farm request should not ance defense counsel propounded to the 715 P.2d special interrogatories *10 damages, any, case, if are type victims’ allocable to of a that the insurers be given theory.10 day their in negligence they the covered second court when did not breach duty We affirm the circuit court’s denial of the their to defend during the underlying action. summary judgment motion for insurer’s providing Engel- the issue of defense to I also special [¶ 28.] concur with the in malprac- mann and the Clinic Baloun’s writing Judge Dobberpuhl, which I feel Correspondingly, agree tice suit. with is consistent with my dissent in Martin- ruling the circuit court that a on summary ¶¶ Engelmann, 79-86, maas v. 2000 SD judgment indemnity on the issue in Bal- 617. oun’s premature. case is As with the oth- ers, DOBBERPUHL, Judge, she be able to Circuit theory establish a concur- ring, writing specially. equivalent theory to the second offered in malpractice earlier trial. I respectfully agree [¶ 29.] with the lion’s majority’s share of the writing. For Affirmed in part, [¶ 22.] reversed in that I give my reason concurrence to the part, and remanded for trial.
opinion. For purposes
attaining
a ma-
AMUNDSON, Justice,
jority
[¶ 23.]
concurs
decision on the crucial aspects of this
case,
in part
specially
part.
and concurs
I reluctantly give my concurrence to
the decision to remand this case to the
DOBBERPUHL,
Judge,
[¶ 24.]
Circuit
said,
trial court. With that
I
special-
write
specially.
concurs
ly to make clear the
objections
few
I have
majority
with the
GILBERTSON,
opinion.
[V25.]
Chief Justice
MILLER,
Justice,
Retired Chief
by Engelmann
The acts
dissent.
were intentional
[¶ 30.] The acts
Engelmann were
DOBBERPUHL,
Judge,
Circuit
plaintiffs
intentional. The
put
at trial
on a
SABERS, Justice,
sitting for
disqualified.
masterful display to convince the judge
AMUNDSON,
(concurring
Justice
jury
that
somehow the acts
were
part and
concurring specially
part).
accusing the defendant of could be consid-
join,
minimum,
I
at a
the re-
ered
malpractice.
medical
jury
The
mand of
provided
this matter as
for in instructed
any
negligent misconduct
Konenkamp’s
Justice
writing.
It
seems
on the
of the defendant was medical
requires,
fundamental
fairness
this malpractice, and that sexual contact could
10. ruling
dissent mischaracterizes our
Appleman §
See.
at 80-87. St. Paul
theory
remand to decide on which
of recov-
duty
fulfilled its
to defend.
It now has the
ery
right
Martinmaas
rendered
litigate
its decision.
pay.
The fact
That,
absurd,
course,
as the dissent rec-
declaratory
finder in this
action will decide
Indeed,
ognizes.
dissenting
Justice
injuries
whether the
plaintiffs
suffered
opinion
malpractice ap-
authored the
in the
were the result of uncovered intentional acts
peal acknowledged
pass
there that "we do not
"negligence” by
or covered
performing "gy-
judgment
Engelmann's
on whether
necological
actions
[using] improper
examinations
would be indemnified
positions,
under a medical
procedures
mal-
and methods in con-
practice
policy.”
insurance
ducting
Martinmaas at
those
Vagnozzi,
examinations.” See
¶
Perhaps
repeating
(trial
needs
that the law
203 b) anglicized 148 as section 49 of our Litt See Martin “negligence.” somehow (S.D. that ‘no one can take providing 1919 code Engelmann, v. N.W.2d maas wrong.’ prin- of his own These advantage 2000). testimony expert As the exposition, and ciples require sup- no are reveal, medical used no book doctors imperative public poli- an almost ported recognizes the behavior of world civilized cy”); Ryan, v. 63 S.D. Zeigler medical in nature. Of as (an agreement N.W. 200 indem- but it is also inten malpractice, it is course acts nify against another unlawful involv- is in nature. malpractice that sexual tional if the ing turpitude, moral is void unlawful just as is as Terming actions medical these at the time of person act is known to such part now on the of much a smokescreen commission); Fire Raphtis its v. St. Paul of it was on the plaintiffs, as Co., Ins. 86 S.D. & Marine committed these acts. when he defendant (1972) (“It 505, 507 is contra bonos duck, like and if it If 31.] it walks [¶ against a man to insure mores to allow duck, a goose; like it sure isn’t quacks consequences rascality his or re- own claiming. are plaintiffs that is and what resulting loss from his own cover for a sexual argue that this intentional They conduct.”); City Fort Pierre v. criminal (termed so their own testi- misconduct Co., Cas. 463 N.W.2d United Fire and in na- enough medical mony) is somehow (S.D.1990) (“Were person able of medical guise to fall under the ture against insure himself economic conse- is covered doctor’s malpractice and wrongdoing, the quences of his intentional That is policy. insurance respon- financial attributable to deterrence Dakota to South law plainly antithetical (quoting Am sibility missing”) would be juris- long history of South Dakota and a Montes, v. 76 N.J. bassador Ins. Co. prudence. (N.J.1978)) (Henderson 603, 606 388 A.2d public policy Dakota does 32.] South [¶ Sabers, JJ., dissenting other and for intention- not allow insurance Ins. grounds); Klatt Continental malprac- This tortious acts. sort ally (S.D.1987) (“One 366, 372 n. 6 409 N.W.2d tice, by Engelmann, was inten- inflicted the conse- against cannot himself insure injurious. inherently State law tional acts, committed quences of his willful public clearly against maintains Farm injury.”); inflict State the intent to Wertz, in South Dakota for one insure policy Co. v. Mut. Auto. Ins. an act.11 St. has (S.D.1995) intentional policy prohib- (“public upon relied that well-known in-
appropriately coverage to an extending insurance others”); recognized this South Dakota has harms intentionally axiom. dividual who 2d, De many years. § See Zotell Mutual 39:15 506- for Insurance at 9 Couch on York, (1985 ed.) (“Any pur- Ins. Co. New 60 S.D. insurance which Life (1932) (“The against any which principles insured ports protect N.W. willfully may purposely enrichment of which he such unconscionable loss forbid cause, from his immor- implicit in the ancient or which arise the criminal are fraudulent, conduct, al, is void or felonious maxim ‘Nullus commodum common-law (Co against public policy.”). injuria propria’ potest de sua capere property of injury person to the or legislative expression public poli- willful of this 11. A 53-9-3, pro- SDCL which will- cy is also found in from violation of law whether another or “AH contracts which have their vides: negligent, are ful or exempt any- object, directly indirectly, law.” responsibility own fraud or one from for his acts, specified although tion. mal- This Court Wertz These defined as *12 is not whether the “critical issue” practice, negligent professional that the are not act, conduct; to but whether he tortfeasor “intended unpro- these acts are intentional injuries.” the resulting to inflict conduct, intended fessional of which it is “An insured’s act is not an Wertz at 639. public policy to insure. contributing injury cause of accidental By the insurance contract defi- [¶ 37.] actually the insured intended to when nition, the conduct of was in- injury cause the that results.... Nor can against public tentional. It is policy to act be an an insured’s intentional acciden- insure intentional actions to cause it injury inherently tal when is so cause purpose harm. The injurious performed cannot be with- that it policy protect against neg- resulting injury.” causing out Ver ligent malpractice committed under a Malcolm, Ins. Co. v. 128 N.H. mont Mut. professional setting. The En- actions of 800, 802-03 517 A.2d See also gelmann ceased to be covered under the Scanlon, Mut. Fire Ins. Co. v.
Providence engaged when he became in inher- (1994), 138 N.H. 638 A.2d harmful, ently intentionally unprofessional (holding inherently injurious that “an act is scope conduct outside the of his employ- if in injury, it is certain to result some ment. although necessarily alleged inju ry.” in (emphasis original)). much [¶ 38.] As as the families in this This held in
[¶ 34.] Court American case, involved, and the women deserve our Family Purdy, Mutual Ins. Co. v. 483 sympathy compassion, we cannot be (S.D.1992), N.W.2d 197 that as a matter of swayed by those emotions. The Court law, there is an inference that harm to the must look to the law to determine who is expected victim is or intended responsible for the payment of the verdict. perpetrator of criminal sexual acts. “We ample There is evidence that the State of hold these acts of criminal sexual contact South Dakota believes person are of such a nature intent injurious commits intentionally acts should inflict bodily injury will be inferred as a required pay, not the insurer. matter of law. for bodily The exclusion [¶39.] Doctors and medical clinics as injury either intended’ in ‘expected or many well professions, as other insure policy applies to these facts.” Id. at 201. every day against themselves possibili- case, Similarly, present [¶ in this 35.] ty that they may make a mistake. That and in general, inappropriate sexual con- diagnose failed to something proper- tact with a patient, combined with the ly, medicine, they gave the wrong utilization improper posi- examination they gave wrong advice. possi- Those tions, methods, procedures and which are bilities are foreseen and reasonably insur- solely prurient for the interests of the able. One should not be able insure physician, injury are sure to result in against intentional malpractice. patient. Engelmann knew he was engag- MILLER, (dis- Retired Chief Justice were, ing least, very acts that at the senting). unprofessional conduct. He knew or conduct, should have known that such as majority ignores [¶ 41.] The law settled he perpetrated, everything could result and overrules our own holding recent Martinmaas, from prosecu- Therefore, loss of licensure to criminal supra. I dissent. decisis, it violating clearly stare also without tion majority, specifical- so, precedent estoppel. case ignoring ignores is the doctrine of collateral ly saying doing, so violates this Court. estoppel prevents Collateral decisis. concept honored stare basic and re-litigating their parties privies that, when ... doctrine “Stare decisis adjudicated previously litigated and issues law principle has laid down a court Shevling County on the merits. v. Butte facts, it to a certain applicable state ¶ *13 Comm’rs, 88, 22, 596 Bd. 1999 SD of it apply will to that and principle, adhere 728, application The of col- N.W.2d 731. the facts are to all further cases where the of estoppel requires lateral satisfaction Means, substantially the State v. same.” four factors: (S.D.1978) 802, (citing N.W.2d Kenner, 476, (1) 43 S.D. Printup adju- in prior issue decided the [t]he (1920)). pro- Stare decisis N.W. dication identical the one was with law, “continuity with a parties vides in the action in presented question; this in a belief of reliance on how rooted (2) judgment was a final on [t]here Phipps in past.” Court has ruled See merits; Gas, Inc., and Inc. v. Nelson’s Oil Bros. (3) is party against plea whom the [t]he (S.D.1993) N.W.2d party privity asserted was a or in J., (Henderson, in concurring part; dis- prior adjudica- party to law senting part). have settled case We tion; and us, recently precedent before handed down Court, by should it. this and we abide is party against plea whom the [t]he (and writer, The majority special opportu- had a full and fair asserted hold- obviously disagreed with our earlier prior in the nity litigate issue it) ing using appeal and is overturn adjudication. compelled is this doctrine adhere Woods, Inc. v. Full- Property, Grand State To other- our decision Martinmaas. do ¶ 12, Smith, er, & 1996 SD Shultz the law this state flux and puts wise of must estoppel 87. Collateral bench, public and in the places the bar appropriate under circum- applied from one knowing dubious situation of not orderliness, “judicial stances to maintain the next what our law is. Our case to time, judicial interest economy being well
jurisprudence not served. peace as the and order litigants well Martinmaas, upheld [¶ 43.] Frigaard Seffens, society....” Engelmann had jury’s finding that verdict ¶ 123, 16, Judg- SD (medi- professional negligence committed prior must be accorded ments on issues awarding cal the Plain- malpractice) and Id. once decided stability. “Controversies Martinmaas, damages. 2000 SD tiffs repose, remain in on their merits should ¶ 59, The N.W.2d 600. trial was sub- judicial should inconsistent decisions solely negli- jury to the based mitted Id. made on the same set of facts.” not be uti- gence stemming Engelmann’s Here, brought Paul a declar- St. procedures, improper medical lization attempt in an atory judgment action sexu- positions, improper methods and his ¶4. under his indemnifying avoid majority al Id. in this contact. The malpractice insurance. St. medical appeal con- now states proved Plaintiffs intentional, asserts that the conduct complete- and thus it duct was trial is covered in Martinmaas ly jury’s verdict and our disregards the Thus, profes- in addi- either the CGL in Martinmaas. under holding policy. argues sional It that En- permissible Engelmann was covered un- — gelmann’s negligent conduct was not but der his liability policy. Yet This is the intentional. exact issue that the absurd majority’s result of the decision litigated in Martinmaas. His counsel is to send this case back to a jury new argued extensively at trial Engel- it to determine the following: On which mann’s conduct was intentional rather theory of recovery did the Martinmaas negligent. than jury, deciding on the jury render its decision? only Not is this merits, obviously disagreed and found that an impossible question for a new jury to Engelmann’s procedures and methods fell answer, it is not one appropriate for them appropriate care, below the standard of to decide. constituting professional negligence. This stated, Simply St. Paul disa- (Further, Court affirmed. it must be re- greed with verdict Martin- that Engelmann membered was tried and maas. It lost appeal and is now acquitted the allegations of criminal sex- *14 seeking a declaratory Thus, judgment ual to have it acts. it is improper to treat an reviewed acquitted person again. estoppel as a convict in Collateral order to decision.) justify clearly applies prevent result-oriented type of re- ligitation. The majority should not now majority The blatantly also dis- overturn jury previously verdict we regards this previous Court’s holding that affirmed. jury The Engel- found that if there are two recovery theories for mann committed negligence. permissible one is based on the evidence We affirmed and are bound that deci- not, and the other is give will sion. There is nothing more to litigate. prevailing party the benefit of the doubt and affirm based permissible on the theo- ry. Jewell, Baker v. 580-81, 77 S.D. GILBERTSON, Justice, Chief (S.D.1959); Berg v. joins this dissent. (S.D.
Sukup Mfg. 1984) (Henderson, J., specially concurring). presented
[¶47.] Here we are with a law,
decision on a rule of not question jury. Id. in Martinmaas was
given two recovery. theories of As the
majority acknowledges, one theory was