State Farm Fire & Cas. Co. v. Harbert
| Decision Date | 24 October 2007 |
| Docket Number | No. 24366.,24366. |
| Citation | 2007 SD 107,741 N.W.2d 228 |
| Parties | STATE FARM FIRE & CASUALTY COMPANY, Plaintiff and Appellee, v. Thomas G. HARBERT, Defendant and Appellant, and David M. Kalt, Defendant. |
| Court | South Dakota Supreme Court |
Susan M. Sabers and William P. Fuller of Fuller & Sabers, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
Lee Schoenbeck of Schoenbeck Law Office, Watertown, South Dakota, Attorney for defendant and appellant.
[¶ 1.] State Farm Fire & Casualty (State Farm) brought this declaratory judgment action to determine if coverage or a duty to defend existed in an underlying action. In that case David Kalt (Kalt) brought suit against Thomas Harbert (Harbert) for alienation of the affections of his former spouse, Peggy Kalt (Peggy). Harbert sought personal liability coverage on the underlying action from State Farm under his personal liability umbrella policy. The trial court granted summary judgment in favor of State Farm, finding no coverage and, thereby, no duty to defend. Harbert appeals.
[¶ 2.] We affirm, finding (1) an invasion of privacy claim derived from conduct leading to the dissolution of a marriage is more properly considered an alienation of affections claim; (2) alienation of affections is an intentional tort, falling within State Farm's intentional tort exclusion in the policy; and, (3) insuring an alienation of affections cause of action for an insured is contrary to the public policy of this State.
[¶ 3.] Kalt and Peggy were married on February 14, 1976. In May 2000 Peggy was hired as clinic manager for the Aberdeen Association of Orthopedic Surgeons. At the clinic Peggy managed the practice of three physicians, one of whom was Harbert. In 2001 Harbert and Peggy began engaging in an extra-marital affair while Peggy was married to Kalt. Upon discovering the affair, Kalt filed for divorce against Peggy and initiated the underlying civil action against Harbert alleging alienation of affections.
[¶ 4.] At the time of the commencement of the underlying action, Harbert was insured by a policy from State Farm.1 Harbert tendered the lawsuit to State Farm, asserting that State Farm must defend and indemnify Harbert under his policy. State Farm defended the underlying action pursuant to a reservation of rights and commenced a declaratory judgment action to determine if Harbert's policy provided a duty to defend and coverage.
[¶ 5.] The policy's coverage for personal liability provides, "[i]f you are legally obligated to pay damages for a loss, we will pay your net loss minus the retained limit." (emphasis in original). The definition of "loss" appears in the policy endorsement, which supplements the parent policy. "Loss" is defined as:
6. "Loss" means:
a. an accident, including injurious exposure to conditions, which results in bodily injury or property damage during the policy period. Repeated or continuous exposure to the same general conditions is considered to be one loss; or
b. the commission of an offense, or series of similar or related offenses, which result in personal injury during the policy period.
(emphasis in original). The definition of "bodily injury" and the offenses causing "personal injury" are also found in the policy endorsement:
17. "bodily injury" means physical injury, sickness, disease, emotional distress or mental injury to a person. This includes required care, loss of services and death resulting therefrom.
9. "personal injury" means injury caused by one or more of the following offenses:
a. false arrest, false imprisonment, wrongful eviction, wrongful detention, malicious prosecution;
b. libel, slander, defamation of character or invasion of rights of privacy.
[¶ 6.] The policy provides that when the asserted claim is covered by the policy, State Farm will defend the insured in the suit, and pay the expenses incurred, costs taxed, and pre—and post-judgment interest accrued. However, the policy lists relevant exclusions to this coverage, including the intentional tort exclusion. The intentional tort exclusion specifies that State Farm will not provide coverage:
2. for bodily injury or property damage:
a. which is either expected or intended by you; or
b. to any person or property which is the result of your willful and malicious act, no matter at whom the act was directed 16. for personal injury when you act with specific intent to cause or harm injury.
(emphasis in original).
[¶ 7.] State Farm and Harbert filed motions for summary judgment. As a result, Kalt amended his initial complaint against Harbert in the underlying action to include a cause of action for invasion of rights of privacy.2 The amended complaint alleged Kalt had been "injured in his right to privacy in that, among other things Defendant gained private and personal information about Plaintiff, his family, and his finances which has caused Plaintiff to suffer great distress of mind, body and estate and damages."
[¶ 8.] In support of his motion for summary judgment, Harbert argued coverage existed and State Farm had a duty to defend the underlying action pursuant to (1) the personal injury coverage as an invasion of rights of privacy offense; or (2) the bodily injury coverage provision as an "accident" resulting in bodily injury. State Farm argued that no coverage existed under the policy because of the intentional tort exclusion.
[¶ 9.] The trial court granted summary judgment in favor of State Farm, finding no coverage and, thereby, no duty to defend Kalt's suit against Harbert for alienation of affections and invasion of rights of privacy. Specifically, the trial court held that a claim for alienation of affections is an intentional tort under South Dakota law, and, as such, is not covered under the policy. In addition, the trial court found Kalt's invasion of privacy claim against Harbert was essentially a claim for alienation of affections.3
[¶ 10.] Harbert appeals from the trial court's order granting State Farm's motion for summary judgment. We review the following issues on appeal:
Is Kalt's invasion of privacy claim, derived from conduct resulting in the dissolution of a marriage, more properly considered an alienation of affections claim?
Does the alienation of affections claim fall within State Farm's intentional tort exclusion in the policy?4
Does public policy of South Dakota preclude insurance coverage for the intentional tort of alienation of affections?
[¶ 11.] This matter is before the Court on appeal from a grant of summary judgment. Pursuant to South Dakota law, summary judgment "shall be rendered forthwith 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). All reasonable inferences drawn from the facts must be viewed in favor of the nonmoving party and reasonable doubts should be resolved against the moving party. Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). The burden is placed on the moving party to show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. However, the party opposing a motion for summary judgment must be diligent in resisting the motion, and mere general allegations and denials which do not set forth specific facts will not prevent issuance of a judgment. Butler Machinery Co. v. Morris Const. Co., 2004 SD 81, ¶ 5, 682 N.W.2d 773, 776. Our task on appeal is to determine whether a genuine issue of material fact exists and whether the law was correctly applied in the lower court. Weatherwax v. Hiland Potato Chip Co., 372 N.W.2d 118, 120 (S.D. 1985); Ruple v. Weinaug, 328 N.W.2d 857, 859-60 (S.D.1983).
[¶ 12.] Is Kalt's invasion of privacy claim, derived from conduct resulting in the dissolution of a marriage, more properly considered an alienation of affections claim?
[¶ 13.] Harbert asserts State Farm has a duty to defend Kalt's action for invasion of rights of privacy because it is specifically covered within the policy's definition of "personal injury."5 Harbert emphasizes that because "invasion of rights of privacy" is not defined in the policy, this Court should adopt a reasonable interpretation of the policy language which includes protection for claims that an insured violated protected marital interests. We find this argument unpersuasive.
[¶ 14.] In Pickering v. Pickering, 434 N.W.2d 758, 762 (S.D.1989), this Court declined to recognize a "repackaged cause of action that already has been specifically pleaded." We refused as a matter of public policy to recognize actions for intentional infliction of emotional distress, fraud and deceit, negligent misrepresentation, and tortious interference with a marital contract when such claims were "predicated on conduct which leads to the dissolution of a marriage." Id. at 761. In Pickering we concluded that any wrong that occurred as a result of the defendant's alleged fraud and deceit in the context of a marriage is not one that can be redressed in a tort action because public policy would not be served by authorizing an award of damages under the circumstances. Id. at 761-62. By definition, a civil wrong is given a remedy in the judicial system as a "tort" action for damages. However, the judicial system cannot remedy all wrongs, particularly those wrongs which are beyond any effective legal remedy and practical administration of the law. Id. at 761. For example, wrongs such as "betrayal, brutal words, and heartless disregard of feelings of others" are in themselves outrageous conduct and "to attempt to correct such wrongs or give relief from their effects `may do more damage than if the law leaves them alone.'" Id. at 761. The law of South Dakota...
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