Larson v. Continental Cas. Co.
| Decision Date | 21 October 1985 |
| Docket Number | No. 14898,14898 |
| Parties | Alfred 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 |
| Court | South 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.
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., 76 S.D. 367, 78...
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