Larson v. Continental Cas. Co.

Decision Date21 October 1985
Docket NumberNo. 14898,14898
PartiesAlfred LARSON, Doris Larson, Gerald A. Nichols, and Century 21--Nichols Realty Co., Plaintiffs and Appellants, v. CONTINENTAL CASUALTY COMPANY, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Chester A. Groseclose of Richardson, Groseclose, Kornmann, Wyly, Wise & Klinkel, Aberdeen, for plaintiffs and appellants.

Derald W. Wiehl of May, Johnson, Doyle & Becker, Sioux Falls, for defendant and appellee.

WUEST, Acting Justice.

This is an appeal from a denial of coverage under an insurance policy and a grant of summary judgment in favor of insurer. We affirm.

Appellants Alfred and Doris Larson (Larsons), are equitable owners and appellant Gerald Nichols of Century 21--Nichols Realty Company is managing agent of an apartment building in Aberdeen, South Dakota. From July 15, 1981 through July 15, 1984, appellee Continental Casualty Company (Continental) was the insurer and Larsons were the named insureds on an insurance policy identified as "Encompass 77 Series Office, Apartment, Condominium Policy." Larsons are attempting to recover, under said policy, amounts incurred in settling and defending a racial discrimination action brought against them by Connie A. Bercier (Bercier), based on alleged violations of 42 U.S.C. Sec. 1982, 42 U.S.C. Sec. 3601 et seq., SDCL 20-13-20(1), and SDCL 20-13-26. Continental refused to defend the action by Bercier, on the grounds that the policy did not provide coverage for a racial discrimination claim. Larsons also seek recovery of attorney fees and costs incurred in the action, pursuant to SDCL 58-12-3. The circuit court granted summary judgment in favor of Continental, holding that Bercier's pleadings did not fall within the scope of coverage under the policy which provided coverage for "personal injury" which arises out of the "eviction or other invasion of the right of private occupancy." We agree.

At the outset, we note that our review of summary judgments is governed by the standards set forth in Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968). Tranby v. Brodock, 348 N.W.2d 458 (S.D.1984). The moving party has the burden to establish that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Worden v. Farmers State Co., Inc., 349 N.W.2d 37 (S.D.1984). Further, the evidence is to be viewed in a light most favorable to the nonmoving party. First Security Bank, Morristown v. Skjoldal, 90 S.D. 71, 237 N.W.2d 675 (1976). We believe appellees have met this burden.

Under the specific terms of the insurance policy in question, "personal injury" is defined as

injury arising out of one or more of the following offenses committed during the policy period:

(1) false arrest, detention, imprisonment, or malicious prosecution;

(2) wrongful entry or eviction or other invasion of the right of private occupancy;

(3) a publication or utterance

(a) of a libel or slander or other defamatory or disparaging material, or

(b) in violation of an individual's right of privacy;

except publications or utterances in the course of or related to advertising, broadcasting, publishing or telecasting activities conducted by or on behalf of the Named Insured shall not be deemed Personal Injury.

With regard to the construction of insurance policies, this court stated in Grandpre v. Northwestern Nat. Life Ins. Co., 261 N.W.2d 804, 807 (S.D.1977):

[A] contract of insurance is to be construed liberally in favor of insured and strictly against the insurer only when the language of the contract is ambiguous and susceptible of more than one interpretation. Thus, the insurance contract's language must be construed according to its plain and ordinary meaning. It does not permit the court to make a forced construction or a new contract for the parties.

See also Strong v. State Farm Mutual Insurance Co., ...

To continue reading

Request your trial
14 cases
  • Klatt v. Continental Ins. Co., 15536
    • United States
    • Supreme Court of South Dakota
    • 8 Julio 1987
    ...court to make a forced construction or a new contract of insurance for the parties. Id. See, e.g., Larson v. Continental Casualty Co., 377 N.W.2d 148 (S.D.1985); Great Central Ins. Co. v. Roemmich, 291 N.W.2d 772 (S.D.1980); Grandpre v. Northwestern Nat'l Life Ins. Co., 261 N.W.2d 804 (S.D.......
  • Groshong v. Mutual of Enumclaw Ins. Co.
    • United States
    • Court of Appeals of Oregon
    • 11 Septiembre 1996
    ...Intern. Ins. Co., 781 F.Supp. 80 (D.Mass.1992); Martin v. Brunzelle, 699 F.Supp. 167 (N.D.Ill.1988); Larson v. Continental Cas. Co., 377 N.W.2d 148 5 Cf. Ron Tonkin Chevrolet Co. v. Continental Ins. Co., 126 Or.App. 712, 870 P.2d 252 (1994) (insurance policy covered claim of "religious acco......
  • Gardner v. Romano, 87-C-917
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • 27 Junio 1988
    ...evenly divided and have issued their decisions without providing a detailed rationale. See, e.g., Larson v. Continental Casualty Company, 377 N.W.2d 148 (S.D. 1985) (ruling that "personal injury" does not include race discrimination); Town of Goshen v. Grange Mutual Insurance Company, 120 N......
  • Decorative Center of Houston v. Employers Cas. Co., 13-91-429-CV
    • United States
    • Court of Appeals of Texas
    • 28 Mayo 1992
    ...share of the settlement, and McDevitt & Street paid $176,000 as its proportionate share. 4 Larson v. Continental Casualty Co., 377 N.W.2d 148 (S.D.1985) (owner of apartment sought coverage for racial discrimination action brought by tenant); Cincinnati Ins. Co. v. Davis, 153 Ga.App. 291, 26......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT