Tri-State Co. of Minnesota v. Bollinger, TRI-STATE

CourtSupreme Court of South Dakota
Citation476 N.W.2d 697
PartiesINSURANCE COMPANY OF MINNESOTA, Plaintiff and Appellee, v. Frederick M. BOLLINGER, Defendant and Appellant.
Docket NumberNo. 17265,TRI-STATE,17265
Decision Date16 October 1991

Page 697

476 N.W.2d 697
Frederick M. BOLLINGER, Defendant and Appellant.
No. 17265.
Supreme Court of South Dakota.
Argued March 20, 1991.
Decided Oct. 16, 1991.

Raymond R. DeGeest, Rapid City, for plaintiff and appellee.

Benjamin J. Eicher of Wallahan & Eicher, Rapid City, for defendant and appellant.

Page 698

HENDERSON, Justice (on reassignment).


This is an appeal from a companion action to a personal injury lawsuit, Townsend v. Bollinger, Civ. No. 90-250, Seventh Judicial Circuit, Pennington County, which action is still pending. Townsend is seeking compensatory and punitive damages against Bollinger for injuries allegedly sustained in an altercation between the two men on September 16, 1989.

After commencement of the companion action, Bollinger tendered defense of the matter to his insurer, Tri-State Insurance Company of Minnesota (Tri-State). Tri-State rejected the tender and discovery proceeded in this companion case. Townsend subsequently served and filed an Amended Complaint. Bollinger again tendered the defense to Tri-State who again refused to defend. Tri-State then commenced a declaratory judgment action. Bollinger served and filed an Answer and Counterclaim, to which Tri-State served a Reply.

Tri-State moved the trial court for summary judgment. Bollinger filed its own Motion for Summary Judgment or for Judgment on the Pleadings, a Motion in Resistance to Plaintiff's Motion for Summary Judgment, a Memorandum of Law, and a Motion for Stay or Continuance on Plaintiff's Motion for Summary Judgment. Bollinger also filed an Affidavit in resistance to the summary judgment motion brought by Tri-State and in support of Bollinger's own summary judgment motion.

Tri-State's motion for summary judgment was scheduled for hearing on June 25, 1990, at 11:00 a.m. Bollinger prepared various motions, a memorandum of law and an affidavit in response. These documents were mailed to the clerk of courts on Friday, June 22nd, the Friday before the hearing. These documents were not received by the clerk of courts until Monday morning, the day of the hearing.

However, Bollinger's counsel hand-delivered "work copies" of the documents to the courthouse early Monday morning. Nevertheless, the trial judge still did not receive them in time to review the documents before the hearing. At the hearing, the trial judge expressed his displeasure with the late delivery of the responsive pleadings and struck them on the grounds that they had not been timely served under SDCL 15-6-6(d). The trial court granted Tri-State's motion for summary judgment. The trial court subsequently entered an Order Granting Plaintiff's Motion for Summary Judgment. From this Order, Bollinger appeals to this Court and presents the following issues:

I. Whether the trial court erred in striking Bollinger's responsive pleadings and granting Tri-State summary judgment;

II. Whether Tri-State is obligated to provide Bollinger with a defense and coverage in connection with the underlying claim;

III. Whether the pertinent coverage and defense inquiry was the "result" of Bollinger's act, and not the "act" itself; and

IV. Whether Bollinger is entitled to recover attorney's fees in the declaratory judgment action and in the companion case.


Frederick M. Bollinger (Bollinger) and Dennis Townsend (Townsend) had been close friends for many years. After Bollinger began dating his present wife, Barb, and ended a relationship with Townsend's sister, the two men had a falling out. Deterioration of this relationship between Bollinger and Townsend continued when Bollinger became convinced that Townsend had misappropriated money from Bollinger's business while he was on vacation.

We trace the facts, in this scenario, which are now in dispute. In September 1989, Townsend asked Bollinger if he would like to go hunting the following day. Bollinger viewed this as an opportunity to patch up their friendship and agreed to go. The two spent the next afternoon hunting. Both parties consumed alcoholic beverages

Page 699

during the course of the afternoon and evening.

After dark, Bollinger and Townsend returned to Bollinger's residence and Bollinger invited Townsend inside. Townsend told Bollinger he had some things to say to Barb and that Bollinger might prefer to wait outside rather than hear what Townsend had to say. Bollinger said he was not concerned.

Once inside, Townsend launched into a tirade against Barb over the breakup of Bollinger's previous relationship with Townsend's sister. Townsend then accused Bollinger of cheating him out of some money, which Bollinger had received for work, that was accomplished while Townsend was employed by Bollinger. Bollinger became increasingly incensed over Townsend's comments and went outside on several occasions to calm down.

On one or more occasions, Bollinger told Townsend to get out of the house and eventually threatened him with physical harm if he did not leave. Townsend refused to leave. Bollinger then punched Townsend in the face, knocking him back into the chair in which he was sitting. In the struggle which followed, Townsend was either yanked up by Bollinger or attempted to stand up and the two fell to the floor. Although Townsend landed on top of Bollinger and was retaliating by striking Bollinger on the chest and arms, Bollinger succeeded in knocking Townsend over backwards and began beating him in the face with his fists. Bollinger clearly had the better of the fight, which ended when Barb told Bollinger to stop.

After the fight, Townsend told Bollinger that he thought his leg or ankle was broken. An ambulance was called and Townsend was taken to the hospital. Bollinger was arrested on charges of assault but never prosecuted.

Pertinent Insurance Provisions To Be Considered

Bollinger asserts coverage under his homeowner's insurance policy procured from Tri-State. This homeowner's insurance policy provided the following.

Under "Section II--Liability Coverage," subsection "Coverage E--Personal Liability," the policy stated:

If a claim is made or a suit is brought against an insured for damages because of a bodily injury ... caused by an occurrence to which this coverage applies, we will:

1. Pay up to our limit of liability for the damages which the insured is legally liable. Damages include prejudgment interest awarded against the insured; and

2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.

Under the subsection titled "Coverage F--Medical Payments to Others," the policy provided:

We will pay the necessary medical expenses that are incurred or medically ascertained within three days of an accident causing bodily injury ... as to others, this coverage applies only:

1. To a person on the insured location with the permission of an insured.

Under "Subsection II--Exclusions" of the policy, it is stated:

1. Coverage E--Personal Liability and Coverage F--Medical Payments To Others do not apply to bodily injury or property damage:

A. Which is expected or intended by the insured.

These provisions of the homeowner's insurance policy are at the crux of the dispute between Bollinger and Tri-State. We have digested issues I, II, and III above under two discussions/holdings, infra.



Tri-State Insurance Company refuses to defend Bollinger under its homeowner's insurance policy. Does it have a duty to do so under (1) this set of facts and (2) the language in the policy? Did the trial court have the procedural authority to strike all of Bollinger's responsive showings to Tri-State's Motion for Summary Judgment? Provisions of the policy are a "given."

Page 700

Facts surrounding the combat and its intended results are all questions of fact. 1

Townsend, whose ankle was broken in the fracas at Bollinger's home, was "obviously intoxicated" according to the records of the hospital, so noted by the doctors attending him. He had facial lacerations at the hospital (which could be expected in combat, a fracas, or tussle) and a diagnosed fractured ankle (which, perhaps, is not a reasonably foreseeable injury in a tussle at a home).

Trial court below struck Bollinger's showing wherein he resisted Tri-State's Summary Judgment Motion. Believing that the showing was tardy, trial court so declared that the showing, including an affidavit contravening Tri-State's factual explanation of the tussle scenario, was untimely. Thereupon, trial court struck all of Bollinger's responsive pleadings and assertions. We believe this was improper legal procedure. Trial court clearly misinterpreted or did not apply SDCL 15-6-5(c) and (d). 2 As applied to these facts, timeliness of service, and the applicable civil procedure, Bollinger had the procedural right to serve his documents prior to the day of the hearing. SDCL 15-6-56(c) provides a motion for summary judgment:

shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits.

(Emphasis added). SDCL 15-6-5(b) provides for service by mail and states: "Service by mail ... is complete upon mailing." See Madsen v. Preferred Painting Contractor, 89 S.D. 397, 233 N.W.2d 575 (1975). Bollinger's affidavit and memorandum were timely served prior to the day of the hearing and the trial court erred in striking them as untimely. It was procedural error to disregard Bollinger's showing. Without any resistance in the record, Bollinger's defeat in the action was an inevitable conclusion: Bollinger was defeated--lifeless in the case--for want of resistance to Motion for Summary Judgment. It was therefore, we hold, prejudicial error. Trial court did not consider Bollinger's resistance for it totally struck them. Having struck his pleadings, the case was in a posture where one side of the case was considered and the other was not.


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