Brishky v. State

• Decision Date: 24 December 1991
• Docket Number: No. 17325,17325
• Parties: Thomas BRISHKY and Betty Brishky, Plaintiffs and Appellants, v. The STATE of South Dakota; John E. Haak, Individually and as Assistant Attorney General for the State of South Dakota; Susan Mollison, Individually and as Program Manager, Driver Improvement Program, Department of Commerce and Regulation, State of South Dakota; and Northland Insurance Company, Inc., Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 489

479 N.W.2d 489

Thomas BRISHKY and Betty Brishky, Plaintiffs and Appellants, v. The STATE of South Dakota; John E. Haak, Individually and as Assistant Attorney General for the State of South Dakota Susan Mollison, Individually and as Program Manager, Driver Improvement Program, Department of Commerce and Regulation State of South Dakota; and Northland Insurance Company Inc., Defendants and Appellees.

No. 17325.

Supreme Court of South Dakota.

Argued April 23, 1991.

Decided Dec. 24, 1991.

James M. Cremer, Bantz, Gosch, Cremer, Peterson & Oliver, Aberdeen, for plaintiffs and appellants.

Richard J. Helsper, Erickson, Helsper & O'Brien, P.C., Brookings, for defendants and appellees South Dakota, Haak and Mollison.

Shelley R. Wieck, Siegel, Barnett & Schutz, Aberdeen, for defendant and appellee Northland Ins. Co., Inc.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

Thomas and Betty Brishky commenced this action on February 12, 1990, against the State of South Dakota (State), John E. Haak, Assistant Attorney General (Haak), Susan Mollison, Program Manager of the Driver Improvement Program (Mollison) and Northland Insurance Company (Northland). State, Haak and Mollison filed an Amended Answer with Crossclaim against Northland on April 17, 1990. On March 14, 1990, Northland filed a separate Answer with a reply. On April 18, 1990, Northland filed an Answer to Crossclaim and a Crossclaim against State, Haak and Mollison. On May 2, 1990, State, Haak and Mollison filed a Reply to Crossclaim of Northland.

On July 10, 1990, State, Haak and Mollison filed a Motion for Summary Judgment against Brishkys. On July 20, 1990, Northland filed its own Motion for Summary Judgment. On September 7, 1990, the Summary Judgment Motions of all Defendants were granted. On Appeal, Brishkys raise two issues as to the State, Haak and Mollison as follows:

1. Was the suspension of Brishky's license on March 2, 1988, a continuing wrong for which the cause of action accrued upon termination of the wrong by reinstatement of the license on March 29, 1989, thereby stripping these defendants of the cloak of sovereign immunity since the State purchased liability insurance effective July 1, 1988? Further, are Haak and Mollison immune from suit if they were acting within the scope of their employment?

2. Did Brishkys give timely notice of the claim pursuant to SDCL 3-21?

Brishkys further assert one issue on appeal as to Northland:

3. Did Northland's use of the financial responsibility act to obtain suspension of Brishky's driver's license based on a judgment Northland obtained against Brishky which did not arise out of a motor vehicle accident, but instead arose out of a misappropriation, fraud and conversion action by Northland against Brishky, constitute abuse of process?

The State, Haak and Mollison raise one issue:

Does the failure of Brishky to exhaust his administrative remedies under SDCL 32-35-102 and SDCL 1-26 deprive the court of jurisdiction to hear this action? We decline to address this issue, deeming it to be nonmeritorious.

We affirm in part (on issues one and two) and reverse in part (issue 3) holding there is a question of fact on the abuse of process question.

FACTS

On July 15, 1985, Thomas Brishky sustained a fire in the engine compartment of his tractor/trailer, a 1976 Peterbilt diesel model. As a result of this accident, the tractor was subject to "down-time" in order to repair the damage. Arrangements were made to have the tractor repaired by Kearns Machinery Company in Sioux Falls, South Dakota. The tractor/trailer was repaired and released to Brishky on or about August 16, 1985.

At the time of the accident, Thomas Brishky was insured by Northland, under a commercial auto policy which protected him against liability for his own negligence and against physical damage to the tractor, but did not cover loss of income.

Prior to the vehicle's release, the Brishkys signed a "Statement of Loss." This verified the total amount of repairs to be $7,986.81. Northland then issued a claim check on August 22, 1985, with Thomas Brishky as sole payee. Kearns Machinery was not named on the check. Thomas Brishky was notified by Darrell Buller (Buller) of Crawford Risk Management, an independent adjuster retained by Northland, that this was an error. Thomas Brishky failed to return the check to Buller when asked to do so. Consequently, Kearns Machinery was not paid.

In November 1985, Kearns Machinery sued Buller, Crawford & Co., and Thomas Brishky for recovery of the repair costs. Northland, on behalf of Buller and Crawford & Co., paid Kearns Machinery and proceeded to seek recovery from Thomas Brishky. After requests for reimbursement of the repair costs were ignored, a Summons and Complaint was issued September 19, 1986, against the Brishkys. It requested actual and punitive damages arising out of the misappropriation of funds obtained under Brishkys' insurance policy. In response to the Summons and Complaint, Thomas Brishky answered pro se, claiming entitlement to the insurance proceeds by reason of repair delays.

On May 20, 1987, Northland, via its attorney Forrest Allred (Allred), served a Motion for Summary Judgment upon Thomas Brishky. A hearing was scheduled for May 29, 1987. The Brishkys did not appear at the hearing and summary judgment was granted in favor of Northland. ¹ The Judgment was served on the Brishkys June 4, 1987.

After 30 days of no response from the Brishkys, Northland began enforcement proceedings. However, no assets were found to satisfy the judgment. Discussions regarding possible settlement were maintained between the Brishkys and Allred but fell through when attempts to reach the Brishkys were unsuccessful.

On or about February 16, 1988, Allred requested that a copy of the Judgment be sent to the South Dakota Department of Commerce, Driver Improvement Program, requesting that Thomas Brishky's driver's license be suspended pursuant to the Financial Responsibility Laws in SDCL 32-35. Subsequently, Allred submitted a report of the circumstances which gave rise to the Judgment. On February 29, 1988, a telephone conference call was conducted between Judge Dobberpuhl, Haak and Allred, whereby it was determined that the suspension of a driver's license in a non-collision case is acceptable under SDCL 32-35 and an Order suspending Thomas Brishky's driver's license, registration and license plates was entered.

On March 28, 1988, the Brishkys consulted Haak concerning this matter. They were advised that the only way to get the license reinstated was to either pay the judgment or file bankruptcy. The Brishkys then filed for Chapter 7 Bankruptcy.

On January 12, 1989, the Brishkys were advised by Haak that although a bankruptcy discharge had been entered, the license could not be reinstated because the underlying judgment had not yet been formally discharged of record. On March 22, 1989, Brishkys were told by Mollison that although the judgment was satisfied, the suspension could not be withdrawn until they filed proof of financial responsibility.

Around the end of March, Mollison agreed to reinstate the driver's license and sent Brishky a clearance which enabled Brishky to obtain a duplicate driver's license. Brishky was also informed that the suspension of his driving privileges had been dismissed. The present action ensued.

DECISION

I. The suspension of Brishky's license on March 2, 1988, was not a continuing wrong. Further, the State, Haak and Mollison were acting within the scope of their employment.

Brishky argues that he suffered a continuing injury as a result of the deprivation of his driving privileges from March 2, 1988 to March 29, 1989. He reasons that since the cause of action accrued during the period of the State's, Haak's, and Mollison's insurance coverage, this action is not barred by the doctrine of sovereign immunity. ² The State, Haak and Mollison disagree, asserting that the act of revoking Brishky's license on March 2, 1988, would not constitute a continuing tort nor a continuation of unlawful acts.

Generally, when a tort involves continuing injury, the cause of action accrues and the statute of limitations commences when the wrong terminates. Alberts v. Giebink, 299 N.W.2d 454 (S.D.1980). Although this Court has never, in depth, explained the nature of a continuing wrong, other jurisdictions have. A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original action. Ward v. Caulk, 650 F.2d 1144 (9th Cir.1981). In Eppling v. Seuntjens, 254 Iowa 396, 117 N.W.2d 820 (1962), the claimant sued for damage to his property attributable to flooding caused by the defendants' erection of a dike. It was stated that the plaintiff's causes of action for the intermittent floodings accrued as each episode occurred, and the Iowa Supreme Court permitted the plaintiff to recover for damages sustained in the five-year period preceding commencement of the action.

However, in our case, the suspension of Brishky's license was immediate and constituted a single injury. Therefore, the cause of action accrued prior to the effective date of insurance coverage, that being July 1, 1988. We must determine: First, if the trial court correctly applied the doctrine of sovereign immunity and, secondly, if Haak and Mollison were acting within the scope of their employment when the State, through its agents, decided that Brishky's driver's license was to be suspended.

SDCL 21-32-17 states:

Except as provided in Sec. 21-32-16, any employee, officer or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity.

SDCL 21-32-16 states:

To the extent such liability insurance is purchased pursuant to Sec. 21-32-15 and to the extent coverage is afforded thereunder, the state shall...