South Dakota Public Entity Pool for Liability v. Winger, 19699

CourtSupreme Court of South Dakota
Citation1997 SD 77,566 N.W.2d 125
Docket NumberNo. 19699,19699
PartiesSOUTH DAKOTA PUBLIC ENTITY POOL FOR LIABILITY, a/k/a South Dakota Public Assurance Alliance, a Local Government Risk Pool, Plaintiff and Appellant, v. Thomas D. WINGER and Michaelea Winger, Defendants and Appellees.
Decision Date02 July 1997

Page 125

566 N.W.2d 125
1997 SD 77
Dakota Public Assurance Alliance, a Local
Government Risk Pool, Plaintiff and Appellant,
Thomas D. WINGER and Michaelea Winger, Defendants and Appellees.
No. 19699.
Supreme Court of South Dakota.
Argued Jan. 14, 1997.
Decided July 2, 1997.

James S. Nelson, Mark J. Connot of Gunderson, Palmer, Goodsell & Nelson, Rapid City, for appellant.

Michael A. Wilson of Quinn, Eiesland, Day & Barker, Rapid City, for appellees.


¶1 Thomas Winger, a Pennington County Highway Department crew leader, spent most of his evening sightseeing and going to bars before his 9:43 p.m. motorcycle accident while on his way home. Amid these excursions, he inspected a job site. As an "on call" employee, was he acting "within the scope of employment" and "on behalf of or in the interest of" his employer at the time of the accident, entitling him to underinsured motorist coverage? We conclude his deviations were substantial, thus precluding coverage, and reverse the circuit court's ruling to the contrary.


¶2 The South Dakota Public Entity Pool for Liability (PEPL Fund), also known as the South Dakota Public Assurance Alliance (SDPAA), provides underinsured motorist coverage for employees injured in the scope of employment and while acting on behalf of or in the interest of their employers. On Friday, June 14, 1991, his day off, Winger spent most of his time at home with personal activities. In his initial testimony, he left home on his motorcycle sometime between 6:15 p.m. and 7:00 p.m. to check a highway project on Nemo Road. Part of the road had washed out from flooding and the barricades needed to be checked regularly. Jack Dier, Winger's supervisor, had instructed Winger to inspect the site after-hours and on his days off, authorizing him to use his personal vehicle to do so.

¶3 Before he went to the Nemo site, however, Winger drove to Skyline Drive to watch the sunset. He lingered there at least an hour. After leaving Skyline Drive, he drove through Canyon Lake Park. He then proceeded back through Rapid City looking for a fellow employee, Rob Rolof. Winger drove by the Time Out Lounge, but not seeing Rolof's motorcycle outside, he did not stop. Finally, at 8:30 p.m., he reached the Nemo site and checked the lights and barricades. He then headed back to Rapid City, and, at approximately 9:00 p.m., arrived at the Buck 'N Gator Bar. He stopped there to look for Rolof to delegate to him the task of

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checking the site. Rolof was not there, but Winger stayed and drank half a beer. 1 After fifteen minutes or so, another County employee came in and began to complain about work, so Winger left. 2 He then conversed about his motorcycle with an unknown man in the parking lot for fifteen to twenty minutes. At approximately 9:40 p.m., he left for home. On the way, he was involved in a collision with another motorist. At the emergency room, he told a nurse he had consumed four beers about 9 p.m. that evening. 3

¶4 After a trial to the court, Winger on his own revealed he and his wife had testified falsely. The court ordered supplemental depositions. In their amended testimony, Winger and his wife said that after she returned home from work that evening, he told her he had to go check on the Nemo site. They argued about why he was not staying home with his family. He left the house shortly after 6:00 p.m. bound for the Blue Lantern Bar. It took five minutes to get there, and, as he walked in, the phone was ringing--his wife was calling. He spoke to her for a minute, hung up, and left. Winger testified he went to the Blue Lantern to find Rolof, but in previous testimony he said the idea of finding Rolof did not occur to him until well after sunset when he left Skyline Drive. LuAnne Saenger, the Blue Lantern's manager and a long-time acquaintance of Winger's, did not recall the phone call. She said Winger seemed in a good mood that night, remaining for thirty to forty-five minutes and drinking two beers. After leaving the Blue Lantern, he stopped to fill his gas tank before going to Skyline Drive. The rendition after this point remained the same as in earlier testimony.

¶5 The trial judge entered a declaratory judgment in favor of Winger. 4 SDPAA appeals. Was Winger acting "within the scope of employment" and "acting on behalf of or in the interest of" Pennington County at the time of the accident? We are also asked to decide if there is support in the record for the court's finding Winger's alcohol consumption had no effect on the accident.

Standard of Review

¶6 In declaratory judgment actions, our standard of review of factual questions is clearly erroneous. Northwestern Bell Telephone Co. v. Stofferahn, 461 N.W.2d 129, 134 (S.D.1990). Conversely, questions of law are reviewed de novo, Schuck v. John Morrell & Co., 529 N.W.2d 894, 896 (S.D.1995), as are mixed questions of law and fact. Paulson v. Black Hills Packing Co., 1996 SD 118, p 7, 554 N.W.2d 194, 196. We also review deposition testimony de novo. Tischler v. UPS, 1996 SD 98, p 23, 552 N.W.2d 597, 602; Hendrix v. Graham Tire Co., 520 N.W.2d 876, 879 (S.D.1994).

Analysis and Decision

¶7 The provisions of the public entity pool, or PEPL Fund, govern this dispute: "The purpose of this program is to provide a fund as the sole source for payment of valid tort claims against all member public entities of the state and their officers and employees for all liability they may incur based upon negligence in the operation of motor vehicles or negligence in performing other acts within an employee's scope of employment ...." SDCL 3-22-1 (Emphasis added). "Scope of employment" is defined as "any activity that an employee performs or incidental to any activity to be performed regardless of the time and place of performance and ... regardless of whether the activity is construed or defined as ministerial, discretionary or proprietary." SDCL 3-22-2(13).

¶8 Under the contract for PEPL coverage, an employee must be "acting on behalf of or in the interest of the public entity" at the time of the accident. Underinsured motorist coverage is included. Farmland

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Ins. Companies v. Heitmann, 498 N.W.2d 620, 624 (S.D.1993); see, e.g., SDCL 58-11-9.4 & 58-11-9.5. Though ambiguous insurance contracts must be liberally construed in favor of the insured, construction cannot be forced when the language is plain and unambiguous. St. Paul Fire & Marine Ins. v. Schilling, 520 N.W.2d 884, 887 (S.D.1994). 5 We resort to workers' compensation cases because those decisions are useful in exploring the themes surrounding scope of employment questions. Yet we are not bound here to liberally construe coverage as we are in workers' compensation matters. See, e.g., Egemo v. Flores, 470 N.W.2d 817, 824-25 (S.D.1991). See 12 Couch Cyclopedia of Insurance Law § 45.565 (2d ed. 1981). See also Getlin v. Maryland Cas. Co., 196 F.2d 249, 251 (9thCir.1952)(construing employee coverage under a liability policy and noting "[w]e should set aside at once the various cases involving workmen's compensation acts.... These cases involved the entirely justifiable effort on the part of the courts to bring cases under the coverage of the compensation act. They are not on point here."); B. & H. Passmore M. & R. Co. v. New Amsterdam Cas. Co., 147 F.2d 536, 538 (10th Cir.1945)(while insurance contracts are construed according to the intent and mutual agreement of the parties, workers' compensation statutes are construed with the beneficent legislative purpose in mind). Legal precepts surrounding respondeat superior also help to conceptualize activities encompassed within "scope of employment," meaning "in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Leafgreen v. American Family Mut. Ins. Co., 393 N.W.2d 275, 280 (S.D.1986)(quoting Rodgers v. Kemper Const. Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143, 148-49 (1975)); Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177, 180 (S.D.1987); Alberts v. Mut. Serv. Cas. Ins. Co., 80 S.D. 303, 306-07, 123 N.W.2d 96, 98 (1963).

¶9 Most critical to deciding coverage here is the question whether Winger was acting within the scope of employment at the time the accident occurred. An act "is within the scope of a servant's employment where it is reasonably necessary or appropriate to accomplish the purpose of his employment, and intended for that purpose, although in excess of the powers actually conferred on the servant by the master." Alberts, 80 S.D. at 307, 123 N.W.2d at 98. Considerations of time, place, and circumstance assist our evaluation. Krier v. Dick's Linoleum Shop, 78 S.D. 116, 119, 98 N.W.2d 486, 487 (1959). Employees perform within the scope of employment even when they act with only implied authority. Howell v. Cardinal Industries, Inc., 497 N.W.2d 709, 711-12 (S.D.1993). Such authority exists if an act is implicitly directed by an employer, or is of the same general nature of what is empowered, or is incident to conduct authorized. Deuchar, 410 N.W.2d at 180. If employers decline to specify the manner in which their employees must perform, employees may...

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