*1 COMPANY INSURANCE TRI-STATE MINNESOTA, Plaintiff and
OF
Appellee, BOLLINGER, M. Defendant
Frederick Appellant.
No. 17265.
Supreme Court South Dakota.
Argued March
Decided Oct. DeGeest, Rapid City,
Raymond R. plaintiff appellee. Eich-
Benjamin Eicher of Wallahan & J. er, Rapid City, appellant. defendant and *2 mоrning. HENDERSON, (on early Monday reassign- courthouse Never- Justice theless, judge did not the trial still receive ment).
them in time to the documents review be- hearing. At the fore the the trial HISTORY/ISSUES PROCEDURAL displeasure his judge expressed the appeal companion from a ac- This is delivery responsive pleadings the late lawsuit, personal injury Townsend tion to grounds they on and struck them the 90-250, Seventh Judi- Bollinger, Civ. No. timely had not been served Circuit, County, ac- Pennington which cial 15-6-6(d). granted The trial Tri- court seeking pending. Townsend is still tion is summary judgment. for State’s motion punitive damages compensatory and subsequently The entered an trial Bollinger injuries allegedly sus- for Granting Motion for Sum- Order Plaintiff’s in an between the two altercation tained Order, mary Judgment. Bolling- From this 16, 1989. September men on presents this appeals er Court and companion commencement of After following issues: action, Bollinger tendered defense of I. Whether trial court erred in insurer, to his Tri-State Insurance matter striking Bollinger’s responsive (Tri-State). Tri- Company of Minnesota granting pleadings and Tri-State discovery pro- and rejected the tender State summary judgment; companion in this case. Townsend ceeded obligated II. Whether Tri-State subsequently and filed an Amended served provide Bollinger awith defense Bollinger again Complaint. tendered coverage in connection with the again who refused defense Tri-State claim; underlying a de- Tri-State then commenced defend. the pertinent III. Whether Bollinger action. claratory inquiry and defense was the “re- and filed an Answer and Counter- served and not Bollinger’s sult” claim, Reply. served a to which Tri-State itself; “act” moved the trial court for sum- Tri-State Bollinger entitlеd IV. Whether to re- Bollinger its own mary judgment. filed attorney’s cover fees in the declara- Judgment Summary or for Motion tory judgment action and Pleadings, a Judgment on Motion companion case. Motion to Plaintiffs for Sum- Resistance Law, Judgment, mary a Memorandum FACTS on Stay or Continuance and a Motion for (Bollinger) M. Bollinger Frederick Summary Judgment. Plaintiffs Motion for (Townsend) Dennis Townsend had been Affidavit in Bollinger also filed an resist- many years. close friends for After Bol- summary judgment motion ance to the wife, linger began dating Barb, present support brought by relationship and ended a with Townsend’s Bollinger’s summary judgment mo- own sister, falling men out. two had De- tion. relationship terioration of this between Bol- summary judg- Tri-State’s linger motion when Bol- Townsend continued on June ment was scheduled linger became convinced that Townsend Bollinger prepared at 11:00 a.m. misappropriated money Bolling- had from motions, various memorandum of law and er’s while he business vacation. These response. an affidavit documents facts, scenario, We trace the mailed to of courts on Fri- were the clerk dispute. September which аre now 22nd, day, Friday before the hear- June Bollinger if Townsend asked he ing. These were not received documents following go day. hunting would like to clerk of morn- Monday courts until opportunity viewed as an ing, agreed go. patch up friendship their hunting. The spent counsel hand-deliv- two the next afternoon beverages copies” alcoholic parties ered “work the documents to the Both consumed during the course of the afternoon Under “Section Liability Coverage,” II— evening. “Coverage subsection E—Personal Liabili- ty,” stated: dark, Bollinger re-
After and Townsend If a claim is brought made or a suit is Bolling- turned to residence and against an damages insured for told because er invited Townsend inside. Townsend of a things say ... caused he had some an occur- *3 Bollinger might prefer rence coverage applies, Barb and that to which this we wait outside rather than hear what Town- will: say. Bollinger
send had to said he was not Pay up liability to our limit of concerned. damages legally which the insured is Damages liable. prejudgment include in- inside, Once Townsend into a launched insured; terest against awarded breakup tirade Barb over the Bollinger’s relationship previous 2. Provide a expense defense at our choice, Townsend’s sister. then ac- Townsend counsel of our even the suit Bollinger cheating groundless, cused him out of false or fraudulent. Bollinger money, some which had received Under the “Coverage subsection titled work, accomplished that was while Others,” Payments poli- F—Medical by Bollinger. employed Townsend was cy provided: Bollinger increasingly became incensed necessary We will medical ex- over Townsend’s comments and went out- penses that are medically incurred or side on several occasions to calm down. ascertained within three of an acci- occasions, Bollinger On one or more told causing bodily injury dent ... as to oth- get Townsend to out of the house and ers, coverage applies only: eventually physical threatened him with person 1. To a on the insured location harm if he did not leave. re- Townsend permission with the of an insured. Bollinger punched fused to leave. then Under “Subsection II —Exclusions” of face, knocking Townsend in the him back policy, it is stated: sitting. he into chair which was Coverage Liability E—Personal followed, struggle which Townsend Coverage Payments F—Medical up by Bollinger yanked was either or at- apply bodily injury Others do not tempted up to stand and the two fell to the damage: property Although top floor. Townsend landed expected A. or intended Which Bollinger retaliating by striking and was the insured. Bollinger arms, Bollinger on the chest and knocking succeeded Townsend over provisions of the in- These homeowner’s began beating backwards and him in the surance are at the crux of the dis- Bollinger clearly face with his fists. had pute Bollinger and between Tri-State. We fight, the better which ended when I, II, digested issues and III above have Bollinger stop. Barb told discussions/holdings, under two infra. fight, Bollinger After the Townsend told thought leg
that he his or ankle was bro- DECISION An ken. ambulance was called and Town- I. Bollinger hospital. was taken to the send charges was arrested on of assault Company Insurance refuses to but; prosecuted. never in- under its homeowner’s policy. duty to do surance Does it have a Pertinent Insurance Provisions (2) (1) so under this set of facts and To Be Considered policy? Did the trial court procedural authority to strike all asserts under his showings to Tri- Bollinger’s responsive policy procured homeowner’s insurance Judgment? Summary State’s Motion for from Tri-State. This homeowner’s insur- “given.” following. are a policy provided the Provisions ance untimely. proce- It its in- them as was surrounding the combat Facts Bollinger’s fact.1 questions disregard are error to show- results all dural tended record, in the ing. Without resistance Townsend, whose ankle was broken was an Bollinger’s defeat in the action inev- home, “obvi- was the fracas Bollinger was defeated— itable conclusion: according to the records ously intoxicated” in the case—for want resistance lifeless hospital, so the doctors noted Summary Judgment. It to Motion attending him. He facial lacerations at had hold, therefore, prejudicial Trial (which expected in hospital could be court did not consider resist- fracas, tussle) diag- combat, a a totally Having them. for it struck ance (which, perhaps, fractured ankle nosed pleadings, ease was struck reasonably foreseeable where of the case was posture one side home). at a tussle not. other was considered Bolling Trial below struck appears interesting This to be *4 showing Tri wherein he resisted er’s below: procedural facet of the case Tri Summary Be Judgment Motion. State’s filed, by responsive showing, never State showing tardy, the trial lieving that was to any affidavit contravene Mo showing, includ declared the court so Summary And Judgment. for Tri contravening tion ing affidavit Tri-State’s an scenario, support of filed nо affidavit in its explanation of the tussle State factual Thereupon, Judgment. untimely. Summary trial court Motion for Bollinger’s responsive plead all of struck proof carried of Tri-State the burden as this was ings and assertions. We believe moving party; must the evidence the be procedure. improper legal Trial court favorably nonmoving most to the viewed misinterpreted apply not clearly or did Eckrich, 422 party. Koeniguer 15-6-5(c) (d).2 applied As SDCL (S.D.1988). court took a The trial 100% service, facts, timeliness of the these opposite view. procedure, Bollinger had the applicable civil the on its reverse trial court statu- We right procedural serve his documents had tory, procedural error. Said error hearing. 15- prior day the SDCL on the final and affected the effect 6-56(c) summary a provides motion for party assigning rights of the the K judgment: Cattle, Mayer, & E Land Inc. days ten before shall be served least 529, (S.D.1983). for The ad- the time fixed the party prior day the hear- verse to the of II. ing may opposing serve affidavits. Furthermore, trial court added). 15-6-5(b) pro- (Emphasis summary judg not have granted should by “Ser- vides for service mail and states: support pleadings, and all ment where mailing.” by complete upon mail ... vice documents, there is ing demonstrate that Painting Con- Madsen See Preferred genuine issue of fact and movant tractor, 397, material 89 S.D. a matter (1975). is not entitled as and memoran- affidavit day Aetna Co. v. timely prior to the law. Insurance McEl dum were served Life vain, (S.D.1985). erred in 363 N.W.2d hearing and the trial court chapter hotly companion period by byor dispute. A different is fixed facts are 1. The presented may will have an issue case below an order order court. Such guilty negligently Was decided: causing parte application. shown be on ex made ankle? Townsend’s broken affidavit, supported a motion When and, be the motion affidavit shall served with 6—6(d)provides: 2. SDCL 15— 15-6-59(b), except provided in § as otherwise motion, other than one which A written opposing may affidavits be served later parte ex notice of be heard hearing, unless than one before the to show cause thereof an order permits at some to be served other them be served not later than fivе shall time. specified unless the time Pa.Super. 362, to de- A.2d 982 appears to owe See also, policy. holdings supporting position because of fend exclusion, “accident,” Coverage injuries E are caused Tri-State’s accord Under Coverage (Medi- ing (Personal Liability) “quality F to the of the result rather than Others) apply quality Taylor do not to the Payments to the causes.” cal Im damage property perial Casualty Indemnity “which bodily injury or S.D. 298, 856, (S.D.1966) by the expected or intended insured.” Thus, property damage Casualty Surety is Western & Co. v. Wais anen, “expected F.Supp. that which has be intended 828-829 (D.S.D.1987) surely is not (quoting, the insured.” It the act Messersmith v. expected Fidelity Company, must be or American the insured which N.Y. (1921)). Messersmith, 133 N.E. the conclusion take effect. intended for aptly expressed: must Justice Cardozo adjudicate properly, inquire: we mentally do zero in on result of the Injuries opposite are or the accidental or the act itself from which the result purposes act indemnity according Therein, central occurred? lie the consider- quality of rather the results than the quality аtions the issue. of the causes. The exclu- field of indefinitely expanded, sion would Bollinger expect Did or intend to break argument pursued were [insurer’s] Ordinarily, such an Townsend’s ankle? logic. limit Every of its if we injury as ankle is a broken exclude, must, gestures or as we move- fight argu- a fist in a home. Tri-State’s *5 instinctive, ments that or are automatic upon a appears solely reading ment to rest wilful, is in isolation when reviewed language as exclusionary applying irrespective consequences, (em- of its insured, by the to an act rath- intentional phasis supрlied). injuries if in- resulting er than were Tri-State that an of tended. contends this (broken fight nature ankle in a fist inside a If, indeed, policy ambiguous, such home) must, se, per excluded from be cov- ambiguity in should be resolved favor of erage. disagree. Precisely, We such an against Tri-State. McGriff argument Vanguard in rejected was In- Co., 436 v. United Fire Ins. N.W.2d States Cantrell, Ariz.App. 486, surance Co. 18 v. also, (S.D.1989). Vanguard 859 Ins. See (1972) P.2d 962 that court 503 wherein held: Clarke, Mich.App. Co. v. 448 presumption person a that a intends the ordinary consequences voluntary of his ac- holding in Hawkeye- reiterate our We tions, theoretically attempting when to de- Security Clifford, N.W.2d Ins. Co. voluntary consequence termine the of a (S.D.1985). Therein, expressed we that application interpretation no of has and a duty duty an insurer’s terms used in insurance contracts. independent footing. totally are on a is to counts II It be remembered that duty We held that the insurer’s to defend allegations negligence. III In involve pay. a was far broader than See case, companion will the results what also, Auto. Ins. Brown v. State Co. those knows be as counts? No one nоw. Here, (Minn.1980). possible jury could determine It is that a policy to de- contracted its “Provide a case, a negligent. In such be expense fense at counsel of our our to Townsend un- Tri-State would liable choice, groundless, even the suit is false if decision to policy. der the Trial court’s See, Saia, Pique or fraudulent. absolutely was grant judgment summary (La.1984) that con- So.2d wherein premature. language to strued identical in the Bollinger could well ambiguous summary, have present case to be and there- injury but not a broken fore intended facial сonstrued the most favor- out, under A sort ably jury for the insured. Accord: ankle. should United Ser- wrong It would be proper instructions. Elitzky, vices Automobile Ass’n. There, determinations, i.e., case. this Court scenario to this disparate judicial guilty un- summary judgment in fa- held an insurer trial court’s was futuro, jury, and a de- in assert- of Tri-State reasonable or vexatious conduct vor negligent only. ciding Bollinger ing coverage relying on its defense and Therefore, court is the trial reversed. seeking a determination of the question declaratory judgment action. FEES ATTORNEY'S stated that the trial court This Court this issue the trial We remand to be vexa- must find conduct insurer light Due to the court in of our decision. It is tious or without reasonable cause. below, Bolling summary judgment adverse under question of fact and reviewed attorney’s At fees. er was awarded erroneous standard. clearly Firemans provides: is SDCL 58-12-3 which issue Studio, v. Bauer Dental Fund Co. proceedings hereafter In all actions or Inc., (D.S.D.1986); F.Supp. 1365 Ewalt any employer who commenced Co., 414 Mereen-Johnson Mach. 62-5-4, self-insured, or in- pursuant § (S.D.1987); Shelly Johnson v. Oil including recipro- company, any surance (S.D.1984). newly Absent exchange, any cal or interinsurance develop be- developed facts which would kind type certificate low, Tri-State, appears that it insurance, appears if it from the evi- us, state record has not acted exchange company or dence that such vexatiously cause in or without reasonable pay the full has refused to amount paying the full amount of the loss. This loss, vexa- that such refusal is such being question, factual advise the trial cause, the tious or without reasonable findings court to enter of fact and conclu- labor, the trial court and department of appropriate sions of at the time when law shall, court, appellate litigation has been tried in chief. plaintiff, allow an award is rendered plaintiff a reasonable sum as an at- JJ., AMUNDSON, concur SABERS and collected torney’s fee to be recovered part part. and concur however, costs, part provided, as a *6 MILLER, C.J., WUEST, J., and concur in by such that when a tender made part part. in and dissent exchange company, or self-in- insurance surer the commenсement before SABERS, (concurring part Justice proceeding in which action or concurring part). in result in an rendered and the amount or award is agree prejudicial 1. I that it was error tender, in excess such recovered is not reject for the trial court The al- no such costs shall be allowed. timely pleadings affidavit. attorney fees hereunder shall lowance agree 2. I has also that Tri-State other reme- be construed bar duty these circumstances. contract, dy, that an whether in tort against in- may insured the same 3. de- Whether or not Tri-State will be arising surance or self-insurer company depend pay termined to have a will pay such loss. out of its refusal to (the ankle) on whether the broken reasonably expected “by as relies on SDCL 58-12-3 under all facts and cir- authority for insured” South Dakota an award of presents genuine This attorney’s 58- cumstances. issue paraphrase fees. To SDCL fact, jury it 12-3, question, of material and was attorney's fees if the awarded improper premature for the trial court pay refused company insurance has loss, now. to rule otherwise full amount and that such refusal is vexatious or without reasonable to de- 4. refusal Whether Tri-State’s cause. pay fend refusal is vexatious or Merrill, 58-
American reasonable under SDCL Family Mut. without fact, (S.D.1990) question premature, 12-3 had a similar is a added). 15-6-5(b) expressing opin- (Emphasis pro- refrain from SDCL we should by vides service mail and states: “Ser- ion thereon. complete upon mailing.”
vice mail
...
Painting
See Madsen v.
Con-
Preferred
J.,
AMUNDSON,
special
joins
tractor,
89 S.D.
vance expense by 2. Provide a defense at our copies” of the doc- hand-delivered “wоrk choice, counsel of our even if the suit early Monday uments to the courthouse groundless, false or fraudulent.] morning. judge the trial still did “Coverage Under the subsection titled F— in time to review not receive the documents Others,” Payments Medical them At the provided: judge expressed displeasure the trial necessary We will medical ex- responsive delivery the late with medically penses that are incurred or grounds them on the pleadings and struck three of an acci- ascertained within timely served under they had not been causing bodily injury. dent lS-G-Gid).1 Bollinger contends his person To a on the insured location of law were affidavit and memorandum permission of an insured.... timely and the trial court erred served Under “Subsection II —Exclusions” of the *7 striking them.2 policy, it is stated: 15-6-56(c) provides a motion for Liability Coverage E—Personal summary judgment: Payments Coverage F—Medical apply bodily injury or Others do days at least ten before shall be served damage: property for the The ad- the time fixed by expected is or intended party prior day to the the hear- A. Which verse insured. the ing may opposing servе affidavits. and, 15-6-6(d) motion provides: shall be served with the affidavit 1. SDCL 15-6-59(b), provided except motion, § as otherwise other than one which A written may opposing be served not later may parte affidavits be heard ex and notice of the thereof or an order to show the unless the than one before shall be served not later than five permits be served at some other court them to specified hearing, unless a the time for the time. period chapter is fixed or different Such an order challenge striking order of the court. of his vari- 2. He dоes not parte application. cause shown be made on ex ous motions. affidavit, supported When a motion is 704 averred, alia, duty duty The to defend
Bollinger’s affidavit inter any injury policy independent or an expect did not intend insurance are he in the Townsend Hawkeye-Security to result from and several duties. Town- expect not intend 489, and did or face v. Clifford, Ins. Co. N.W.2d he struck leg or ankle to break when send’s (S.D.1985). duty to is much The Bollinger contends the exclusion him. duty to pay: broader than the by the “expected or intended bodily injury arguably apрears if it is from clear interpreted under sub- insured” should pleadings face in the action of the standard; thus, ex- subjective jective alleged against insured con- of the insured pectations or intentions claim, true, cover- falls within Summary judgment authorized trol. re- age, the must The insurer defend. judg- only when the movant entitled ends, though plead- view then even there is as a of law because no ment matter other ings ambiguous are or reveal 15- material fact. SDCL genuine issue of in the and not- policy, claims not covered Inc., 56(c); Pacific, Trapp v. Madera 6 — indi- withstanding that extraneous facts (S.D.1986); Great Wilson v. false, groundless, cate claim is 207, Co., Railway 83 S.D. Northern (Footnotes omitted). even fraudulent. (1968). Bollinger submits his Id., City Accord 491-492. Fort genuine issue of material affidavit raises Co., Pierre v. United Fire and Cas. intentions), (his pre- expectations fact 845, (S.D.1990); Bayer v. Em cluding summary judgment. Under such ployers Corp., Reinsurance 383 N.W.2d striking of analysis, trial court’s an 858, (S.D.1986). Thus, we should ex prejudicial. would be affidavit light pleadings amine Townsend’s of the adopt the sub- decline to would policy coverage. Bolling- approach urged by jective standard er, reasons, following the refus- and for the complaint alleged as- initial Townsend’s his affidavit was harmless al to consider battery. complaint His sault amended (1) framed three causes action: assault assault; battery; (2) (3) negligent rule, contract general
As a insurance assault, inflicting per- negligently malicious liberally in favor is to be construed insurer; injury. Although com- sonal the amended strictly insured and alleges negligence, however, plaint only applies when the this rule insurance contract am- negligence in a trans- allegations merе biguous. Mutual Strong State Farm trigger parent attempt to insurance cov- 828, Co., 78 N.W.2d Ins. 76 S.D. characterizing intentionally erage by tor- (1956). In Klatt Continental negligent per- tious conduct as will (S.D.1987), 366, 369-70 409 N.W.2d impose suade [this] provision excluding similarly held a worded defend. acts clear and intentional Kemper Ryan, Iowa Ins. Co. Mich. unambiguous, making construction 134, 434, (1988) 137, App. 431 N.W.2d unnecessary. The Klatt contract (citation omitted). Linebaugh Accord as an accident which defined “occurrence” Berdish, Mich.App. expected neither results 405-06 standpoint of nor from the battery wеre in- assault Although poli- insured. Id. at 369-70. *8 as Assault and tentional a matter law. organized phrased cy at issue and here battery from an intentional substantially slightly differently, it is sim- 6 negligence is unintentional. Am. while ilar in to the in Klatt. We substance 2; Jur.2d, 6A Battery and C.J.S. Assault jur- acknowledged § in Klatt that numerous 7(a). Battery The two are and provi- Assault § intentional act isdictions consider mutually and there can be no exclusive unambiguous. Id. at sions to be clear and negligent as assault. 370, action n. 4. intentional act such I find Tri-State’s Gorder, and v. van unambiguous. exclusion Farm Fire Cas. to be cleаr and State
705
543,
(1990); ditional,
355,
analysis;
545
tort
common law
455
235 Neb.
Indeed, being,
35.
Negligence,
expects
an insured intends or
§
Am.Jur.2d
57A
probable consequences
is the essence of natural and
of his
do harm
intent to
Am.Jur.2d,
Klatt,
370;
Assault
or her actions.
409
battery. 6
N.W.2d at
assault
Therefore,
Co.,
Imperial
one
Battery
Taylor v.
Cas. & Indem.
82
§
298,
856,
(1966).
harm the course of
144
negligently inflict
S.D.
859
Nu
battery. See Aetna
jurisdictions apply
approach.
Cas. & merous
this
assault
Ill.App.3d 617,
See,
89
44
Freyer,
e.g.,
Behaeghe,
Colo.App.
v.
Butler v.
37
Sur. Co.
(1980).
791,
1157
As a 282,
(1976); Steinmetz,
411 N.E.2d
Ill.Dec.
This case
by striking
to harm Townsend
him in the
by Townsend was “intended
harm suffered
his fist.
face with
by Bollinger within the mean-
expected”
striking
act of
another in the face
[T]he
Bollinger urges this
ing of the exclusion.
recognize
is one which we
as an act so
adopt
subjective
standard
court to
partiсular
certain to cause a
kind of harm
expectations
subjective intent and
say person
performed
that we can
who
approach
govern.
would
harm,
resulting
the act intended the
place complete control of insurance
would
contrary
his statement to the
does noth-
coverage in the hands of the insured
ing to refute that rule of law.
rejected.
has been
See Western Cas. &
Norval,
549,
203 Neb.
279 N.W.2d
Jones v.
Waisanen,
F.Supp.
825
Sur. Co.
388,
(1979) (quoting
Clark v. Allstate
law);
(D.S.D.1987)
Dakota
(applying South
601,
Co., Ariz.App.