State Auto Ins. Companies v. BNC

• Decision Date: 27 July 2005
• Docket Number: No. 23447.,23447.
• Citation: 2005 SD 89,702 N.W.2d 379
• Parties: STATE AUTO INSURANCE COMPANIES, Plaintiff and Appellant, v. B.N.C. a/k/a B.D., Defendant, and Audrey Ault, f/k/a Audrey Duggan, Defendant and Appellee.
• Court: South Dakota Supreme Court

702 N.W.2d 379

2005 SD 89

STATE AUTO INSURANCE COMPANIES, Plaintiff and Appellant, v. B.N.C. a/k/a B.D., Defendant, and Audrey Ault, f/k/a Audrey Duggan, Defendant and Appellee.

No. 23447.

Supreme Court of South Dakota.

Argued on April 27, 2005.

Decided July 27, 2005.

Mitchell Peterson of Davenport, Evans, Hurwitz & Smith, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Mark J. Arndt of May & Johnson, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

ZINTER, Justice.

[¶ 1.] State Auto insured a vehicle that, while being operated by an unauthorized driver, was involved in a single car accident rendering it a total loss. After paying its insured/owner for the property loss, State Auto brought this subrogation claim against the mother of the minor who was driving the vehicle. State Auto claimed that the mother was responsible on a theory of vicarious liability and on three theories of direct negligence. The trial court rejected all claims and granted summary judgment in favor of mother. We affirm the dismissal of all claims except one asserting direct negligence. Because material issues of disputed fact exist on the claim asserting negligence in the performance of a gratuitous undertaking, we reverse and remand on that issue.

Facts and Procedural History

[¶ 2.] State Auto insured a Chevrolet Suburban owned by William Close. Close is the grandfather of the driver, B.D., and the father of B.D.'s mother, Audrey Ault. Ault is B.D.'s custodial parent. B.D. was 14 years-old at the time she was driving Close's car and had the accident.

[¶ 3.] The events leading up to this incident began when Ault stopped by Close's home to water his plants, let the cat in, and check the home while he was out of town on vacation. Ault entered the home using the key. Later that day, without Ault's knowledge, B.D. and a friend went to Close's home to go swimming in the back yard (Close's home was apparently on a lake.) Sometime after arriving, B.D. also entered the home. State Auto alleges that B.D. entered the home through the back patio door that Ault had mistakenly left unlocked on her earlier visit. Although there is some dispute about the actual method of entry, we accept State Auto's version of the facts and assume that B.D. entered her grandfather's home through the door Ault had mistakenly left unlocked.

[¶ 4.] Sometime after entering the home, B.D. decided to go "to town" to pick up another friend to go swimming. Close's suburban was in the garage and B.D. knew that her grandparents kept the keys in the vehicle. Although she had no driver's license and did not have permission to drive the car, B.D. took¹ the vehicle without incident. However, while returning to Close's home, B.D. lost control of the vehicle on a gravel road and it rolled. The suburban was a total loss.

[¶ 5.] State Auto paid Close $30,708 for the property damage to the vehicle. State Auto then brought this subrogation action against Ault and B.D. to recover the insurance benefits it had paid. The trial court granted summary judgment in favor of Ault on all theories.² It concluded that Ault was not vicariously liable for her daughter. It also concluded that State Auto's three direct negligence claims were barred because Ault owed no duty to Close. State Auto appeals, questioning:

(1) Whether Ault was vicariously liable for the damages caused by her daughter under the parental liability statute, SDCL 25-5-15.

On its direct negligence claims, State Auto questions;

(2) Whether Ault had a duty to keep Close's home secured;

(3) Whether Ault had a duty to not encourage her daughter to drive; and,

(4) Whether Ault had a duty to better supervise her daughter.

Decision

[¶ 6.] Summary judgment is permitted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." SDCL 15-6-56(c). We view the evidence most favorably to the nonmoving party and resolve all reasonable doubts against the moving party. Thornton v. City of Rapid City, 2005 SD 15, ¶ 4, 692 N.W.2d 525, 528. However:

[w]hen a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials of his pleading, but [its] response, by affidavits or as otherwise provided in § 15-6-56, must set forth specific facts showing that there is a genuine issue for trial. If [the adverse party] does not so respond, summary judgment, if appropriate, shall be entered. . . .

SDCL 15-6-56(e). Because Ault's motion was properly supported, State Auto, as the adverse party, must have designated specific facts that revealed a genuine issue for trial. U.S. Bank Nat'l Ass'n v. Scott, 2003 SD 149, ¶ 39, 673 N.W.2d 646, 657. "[M]ere general allegations and denials which [did] not set forth specific facts will not prevent the issuance of a judgment." Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876 (citations omitted).

Vicarious Liability

[¶ 7.] State Auto contends that Ault is vicariously liable for the damages caused by her daughter. Generally, parents are not vicariously liable for the acts of their children. SDCL 25-5-14.³ However, SDCL 25-5-15 provides a limited exception for malicious and willful acts:

Any person, firm, association, private or public corporation, including the State of South Dakota and its political subdivisions, suffering damages to real, personal, or mixed property, or personal injury, through the malicious and willful act or acts of a minor child or children under the age of eighteen years while residing with their parents, shall have therefor a cause of action against and recover of the parents of such child or children. In each case the amount of recovery against one or both of the parents shall be limited to actual damages of fifteen hundred dollars and the taxable court costs, and does not apply to damages proximately caused through the operation of a motor vehicle by the minor child or children. If the issue is disputed, any determination that a parent is not responsible for the full amount of actual damages and costs authorized by this section shall be justified in a specific finding, in writing or on the record.

(Emphasis added). This case presents two issues under this statute: (1) whether the property damage was suffered "through the malicious and willful acts" of B.D. and (2) whether the second modifying clause in the second sentence of SDCL 25-5-15 (emphasized above) eliminates vicarious liability for a child's operation of a motor vehicle.

(1) Willful and Malicious Acts

[¶ 8.] State Auto argues that SDCL 25-5-15 "imposes strict liability upon parents when the requirements of the statute... are met." State Auto asserts that the statutory requirements were met because it "suffered damages through the `malicious and willful' acts of B.D." in taking the vehicle. Ault disagrees by focusing on B.D.'s operation of the vehicle. Ault contends that B.D. was merely negligent in causing the accident. Ault argues that because ordinary negligence was the proximate cause of the accident, the malicious and willful element of the vicarious liability statute is absent.

[¶ 9.] There is no dispute that State Auto must establish that the damages were suffered through a malicious and willful act. This statutory requirement is one of causation. It requires that the person seeking recovery establish that the damages were proximately caused by a malicious and willful act of a child.

[¶ 10.] The term malicious is generally defined as an act that is "[s]ubstantially certain to cause injury[;] . . . [w]ithout just cause or excuse." Black's Law Dictionary (8th ed 2004). We have defined malicious as "having, or done with, wicked, evil or mischievous intentions or motives; wrongful and done intentionally without just cause or excuse or as a result of ill will." State v. McGill, 536 N.W.2d 89, 94 (S.D. 1995) (citation omitted). Willful conduct involves a lower level of mens rea generally defined as an act that is "[v]oluntary and intentional, but not necessarily malicious." Black's Law Dictionary (8th ed 2004).

[¶ 11.] Recognizing that loss of control of the vehicle was not malicious and willful, State Auto focuses on B.D.'s taking of the vehicle. State Auto alleges that the taking was "willful" in that her state of mind "was more than merely negligent." However, we need not consider this argument because even if the taking of the vehicle was a willful act, the statute requires more than mere willfulness. SDCL 25-5-15 requires that the child's act be "malicious and willful." But here, State Auto has not identified any fact in the summary judgment record suggesting that B.D. took her grandfather's vehicle maliciously.

[¶ 12.] It is important to note that the factual record for this summary judgment consisted of statements of material facts submitted by both parties. These statements reflect that B.D., while at her grandparent's home to swim, entered the house and took the suburban. With respect to B.D.'s mens rea in taking the vehicle, State Auto's statement of material facts reflects only that "[w]hile in the Close's home, B.D. decided that she needed to drive into town to pick up a friend to go swimming." The statements also reflect that thereafter, while driving, B.D. encountered loose gravel on the road, was unable to control the vehicle, and rolled it a number of times. Although these statements do not reflect that B.D. had permission to take or operate the vehicle, there is no fact suggesting that any part of B.D.'s conduct at her grandfather's home was malicious. Rather, the evidence merely indicates that, while on her grandfather's premises to swim, B.D. took his vehicle without permission to pick up a friend and, thereafter, negligently lost control of the vehicle.

[¶ 13.] We reiterate...