APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MARY THORSTENSON Retired Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 12, 2013
[¶1.] After an intoxicated driver struck and injured several children, the driver's insurer brought a declaratory action seeking a ruling that it had no duty to defend or indemnify the driver. In granting summary judgment for the insurer, the circuit court held that coverage had expired twelve hours before the accident. We affirm.
[¶2.] At noon on September 23, 2007, Tamara Bradford, while intoxicated, ran into and seriously injured four children. The children had been riding their bikes or standing alongside the road.
Bradford later pleaded guilty to two counts of vehicular battery. Her insurer, Alpha Property and Casualty Insurance Company, contested a duty to defend her in any negligence suit brought on the children's behalf.
[¶3.] Six months before the accident, Bradford applied for an automobile insurance policy with a stated effective date of March 23, 2007 at 12:01 a.m. and an expiration date of September 23, 2007 at 12:01 a.m. The total premium for the six-month policy was $907, with a down payment of $157.47, and the remainder to be paid in monthly installments. She remitted her initial payment and coverage began at 11:49 a.m. on March 23, 2007.
[¶4.] Alpha issued Bradford an insurance policy on March 25, 2007, effective March 23, 2007, to continue "until cancelled or terminated in accordance with the financial responsibility laws and regulations of this State." The policy indicated that it "applies only to accidents and losses during the policy period shown in the Declarations . . . ." The Declarations provided a "Policy Period From 3/23/2007 to 09/23/2007 12:01 a.m." The policy further stated that a "failure to pay the required continuation of renewal premium as we require means that you have declined our offer" to renew.
[¶5.] On June 25, 2007, Alpha sent Bradford a notice of cancellation informing her that her June payment was past due. She was directed to postmark or deliver a payment by July 16, 2007, for insurance coverage to continue. Bradford made the required payment. Then, on July 24, 2007, Alpha mailed Bradford another notice of cancellation because her July premium was past due. Alpha directed Bradford to postmark or deliver a payment by August 14, 2007, for coverage to continue. Bradford did not timely remit payment.
[¶6.] On August 21, 2007, Alpha sent Bradford a notice of the amount due on her cancelled policy. She did not remit payment. At the end of August, however, Bradford went to Alpha's office, paid the past due premium, and reinstated her insurance coverage. On September 5, 2007, Alpha sent Bradford an invoice and notice of an option for renewal. The invoice and notice provided:
If payment of at least $358.03 is postmarked on or before 09/22/07, coverage will continue without interruption. If payment is not made, your policy will expire and coverage will cease at 12:01 a.m. on 09/23/07.
Bradford did not make the required payment on or before September 22, 2007 and, according to Alpha, Bradford's policy expired almost twelve hours before the September 23 accident.
[¶7.] On Monday, September 24, 2007, Bradford's mother, Carolyn Willoughby, contacted Alpha and asked if she could make Bradford's premium payment. It is disputed whether this call was in fact made on September 24 and who from Alpha spoke to Willoughby. But it is undisputed that no payment was made because ...