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Hanson Farm Mutual v. Marcus Degen

April 3, 2013

HANSON FARM MUTUAL INSURANCE COMPANY OF SOUTH DAKOTA,
PLAINTIFF AND APPELLEE,
v.
MARCUS DEGEN,
DEFENDANT AND APPELLANT, AND TINA SELLERS, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ADRIANNA SUMMER SELLERS,
DEFENDANT AND APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT HANSON COUNTY, SOUTH DAKOTA THE HONORABLE SEAN M. O'BRIEN Retired Judge

The opinion of the court was delivered by: Wilbur, Justice

#26435-a-LSW

CONSIDERED ON BRIEFS ON FEBRUARY 12, 2013

[¶1.] Tina Sellers, as the personal representative of her daughter's estate, and Marcus Degen appeal the trial court's determination that Hanson Farm Mutual Insurance Company of South Dakota (HFMIC) had no obligation to indemnify or to defend Marcus in an underlying wrongful death action. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶2.] Marcus and Tina met in the spring of 2006 at work. Their work relationship quickly developed into a romantic one. At that same time, Marcus was living with his parents. Tina and her daughters, Adrianna and Zeraya, were living between an apartment and with her parents while Tina was in the process of divorcing the girls' father.

[¶3.] As their relationship progressed, Tina and Marcus began to look for a home in Alexandria, South Dakota, Marcus's hometown. After finding a house they liked, Marcus purchased the home in February 2007. As a part of qualifying for a home loan, Marcus also purchased a homeowner's insurance policy with HFMIC. Marcus was the named insured on the policy. The policy defined certain specific terms that it used. "Insured" was defined in part as:

a. "you";

b. "your" relatives if residents of "your" household;

c. persons under the age of 21 residing in "your" household and in "your" care or in the care of "your" resident relatives;

The policy also contained a household exclusion, which read: "Coverage L [personal liability coverage] does not apply to: . . . 'bodily injury' to 'you', and if residents of 'your' household, 'your' relatives and persons under the age of 21 in 'your' care or in the care of 'your' resident relatives." "[I]n 'your' care" was not defined in the policy nor did the policy place a specific time frame as to when "care" had to be rendered in order to fit the definition. "Bodily injury" was defined to "include[ ] sickness, disease, or death."

[¶4.] Marcus, Tina, and both of Tina's daughters moved into the home.

Marcus and Tina then began to fix up the house, purchasing furniture, appliances, and other necessities within their financial means.

[¶5.] Following Marcus and Tina's move to Alexandria, Marcus and Tina enrolled Adrianna in school. In addition to Tina and the family doctor, Marcus was listed as one of the girls' emergency contacts.

[¶6.] A few months after moving into the house in Alexandria, Tina took a position with a different company with hours that allowed her to start work later in the morning and leave work earlier in the afternoon. This schedule enabled Tina to get the girls ready in the morning and pick them up in the afternoon. Marcus got the girls ready for the day and picked them up in the afternoon when Tina was unable to do so.

[¶7.] Even though they maintained separate checkbooks, Marcus and Tina pooled their financial resources to pay their monthly expenses with each helping the other out in the event that there was a shortfall in finances. Marcus paid the mortgage on the home, insurance, real estate taxes, and all of the utilities. Tina bought groceries for Marcus, the girls, and herself. She also purchased the girls' clothing and school supplies. Tina's purchases were supplemented by monthly child support payments from Tina's ex-husband. Marcus and Tina each paid for their own fuel for their vehicles. Additionally, the couple divided the household duties evenly.

[¶8.] During this time, the couple also discussed and participated in various facets of the girls' lives, including appropriate discipline, education, religion, and recreation activities. Marcus and Tina discussed and developed a plan to discipline the girls and Marcus or Tina disciplined the girls when they misbehaved. Additionally, Marcus helped Adrianna with learning her alphabet and numbers, and read books to the girls at night. Marcus, Tina, and the girls all attended a local church because Marcus and Tina agreed that it would be best for the girls. Together, they would often watch movies, play outside, and camp in the local park. Both Marcus and Tina tucked the girls in bed at night and told the girls that they loved them. The girls returned this affection to both Marcus and Tina. The girls often called Marcus "Dad" and he considered them his daughters. Marcus also purchased birthday and Christmas presents for the girls. Lastly, Marcus named Adrianna as the primary beneficiary in his retirement plan and Zeraya as the secondary beneficiary.

[¶9.] Despite this relationship, Marcus never adopted the girls. Their biological father maintained his parental rights and paid child support monthly.

Additionally, even though both Marcus and Tina hoped the relationship would last forever, Marcus and Tina never ...


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