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Quinn v. Farmers Ins. Exch.

Supreme Court of South Dakota

March 12, 2014

JONATHAN " JON" QUINN, Individually and as Guardian Ad Litem of H.Q., a Minor Child and TAMMY FASCHING, Individually, Separately and Together, Plaintiffs and Appellants,
v.
FARMERS INSURANCE EXCHANGE, a Member of FARMERS INSURANCE GROUP OF COMPANIES; and TRUCK INSURANCE EXCHANGE, a Member of FARMERS INSURANCE GROUP OF COMPANIES, Individually and Together, Jointly and Severally, Defendants and Appellees

Considered on Briefs January 14, 2014.

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA. THE HONORABLE JEFF W. DAVIS, Judge.

GEORGE J. NELSON, Rapid City, South Dakota, Attorney for plaintiffs and appellants.

THOMAS J. WELK, MICHAEL F. TOBIN, MEGHANN M. JOYCE, Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees.

GILBERTSON, Chief Justice. KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.

OPINION

Page 620

GILBERTSON, Chief Justice

[¶1] Jonathan Quinn, individually and as guardian ad litem for H.Q., a minor

Page 621

child, and Tammy Fasching, Appellants, appeal a circuit court order granting summary judgment in favor of Appellees Truck Insurance Exchange and Farmers Insurance Exchange. We reverse and remand.

Facts and Procedural History

[¶2] Doug Hamilton owned over twenty commercial and residential properties in Rapid City and Spearfish, South Dakota, through various property companies, including Barker & Little, Incorporated (Barker & Little). Barker & Little owned several multi-unit apartment buildings, including an apartment building at 816 Saint Joseph Street in Rapid City. On January 12, 2004, Jonathan Quinn and his family (Quinn) became residential tenants of Barker & Little in Apartment #311 at 816 Saint Joseph Street.

[¶3] In June of 2005, Quinn's 31-month old daughter, H.Q., began to suffer from hair loss, vomiting, inability to focus, and other health problems. Toxicity tests revealed that H.Q.'s blood contained dangerously high levels of lead. Doctors diagnosed H.Q. with lead poisoning and determined that H.Q. suffered permanent brain and nervous system damage as a result of the lead poisoning. H.Q.'s doctor instructed the family to leave their apartment and hospitalize H.Q. immediately. A qualified inspector examined the apartment and informed Quinn that peeling and flaking paint and paint dust in the apartment contained high concentrations of lead.

[¶4] In January of 2006, Barker & Little commenced a lawsuit in Pennington County small claims court against Quinn for non-payment of rent. In response, Quinn removed the small claims action to circuit court and filed a counterclaim against Barker & Little for injuries H.Q. sustained as a result of high concentrations of lead in the leased premises. Quinn alleged that Barker & Little was negligent in failing to remove the peeling and flaking paint from the apartment or warn Quinn and his family of the danger. Barker & Little tendered the claim to Farmers Insurance Exchange (Farmers) and Truck Insurance Exchange (Truck)[1] through ...


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