ARGUED ON OCTOBER 5, 2015
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE STUART L. TIEDE Retired Judge
SEAMUS W. CULHANE NANCY J. TURBAK BERRY of Turbak Law Office, P.C. Watertown, South Dakota Attorneys for plaintiff and appellant.
KENT R. CUTLER KIMBERLY R. WASSINK BRIAN DONAHOE of Cutler & Donahoe, LLP Sioux Falls, South Dakota Attorneys for defendant and appellee
[¶1.] David Zerfas lost control of his vehicle after he swerved to avoid a deer carcass in his lane of travel on the interstate. His vehicle was hit by oncoming traffic and Zerfas died. His wife Stacey sought uninsured motorist benefits with AMCO Insurance Company. She claimed that an unidentified driver negligently left the deer carcass in the lane of travel on the interstate, which negligence caused Zerfas to lose control of his vehicle. AMCO denied her claim after it concluded that Stacey would not legally be entitled to recover damages from the unidentified driver. Stacey brought suit against AMCO for breach of contract, and AMCO moved for summary judgment. After a hearing, the circuit court granted AMCO summary judgment. It ruled that AMCO's policy coverage was not implicated because, under the facts of this case, the unidentified driver owed no common law or statutory duty to Zerfas. Stacey appeals. We affirm.
[¶2.] On December 2, 2011, at approximately 6:23 a.m., David Zerfas was traveling south on Interstate 29 from Brookings to Sioux Falls, South Dakota. He lost control of his vehicle, swerved, and crossed the median into oncoming traffic. Zerfas's vehicle was struck by oncoming traffic and he was fatally injured. The South Dakota Highway Patrol issued an accident report noting that "[t]here were remains of a deer in the south bound lanes where tire marks show Vehicle 1 [Zerfas] swerved left and lost control." The summary of the investigation detailed that "Vehicle 2 [driven by Mark Misar] was traveling north bound when Vehicle 1 came into the right lane. . . . Vehicle 2 struck Vehicle 1 in the driver's side doors." According to the investigation report, "Vehicle 1 left tire marks from the southbound lanes into the median where the vehicle was partially sideways. The tire marks go thru the median and marks show where the tires hit the paved median shoulder and spun the vehicle into the north bound lanes." Misar reported his speed to be 70 mph prior to locking his brakes to avoid the collision. The report did not indicate a speed for Zerfas's vehicle.
[¶3.] After the accident, Zerfas's wife Stacey filed a claim with their automobile insurance company, AMCO Insurance Company, for uninsured motorist benefits. Stacey informed AMCO that the circumstances of the accident implicated AMCO's coverage for damage caused by an unidentified hit-and-run driver. In particular, Stacey claimed that at some point prior to the accident an unidentified driver hit the deer and negligently failed to ensure that the deer carcass did not create a hazard to other travelers on the road.
[¶4.] AMCO investigated Stacey's claim. It interviewed two witnesses: Mark Misar (the driver of the vehicle that collided with Zerfas's vehicle) and Harriet Greene (a passenger in a vehicle behind Misar's vehicle). Although neither Misar nor Greene saw Zerfas swerve to avoid the deer carcass, Greene reported that after the accident she saw a deer carcass from across the median and noticed other cars maneuver to avoid it. AMCO did not inspect Zerfas's vehicle, but did review the accident investigation report.
[¶5.] AMCO's investigation produced no evidence revealing how the deer carcass came to be in Zerfas's lane of travel. Nonetheless, AMCO's claim notes indicate that it assumed for purposes of the claim that a deer carcass was in fact lying in the roadway when Zerfas lost control of his vehicle. The notes further suggest that the circumstances of the accident could implicate the policy definition of an "uninsured vehicle." However, the claim note qualified that policy coverage depended on whether the accident "was caused by the negligence of the unidentified vehicle leaving the deer in the roadway or the [insured's] negligence for lookout and failure to maintain control[.]"
[¶6.] Ultimately, AMCO denied Stacey's claim. It informed Stacey that coverage was not implicated because, even assuming an unidentified driver hit the deer and left the carcass in Zerfas's lane of travel, Stacey would not legally be entitled to recover damages from the unidentified driver of the vehicle. AMCO explained that, based on its research of state law and common law in South Dakota, the mere fact that an individual hits a deer and kills it does not create a duty to remove it from the roadway or to warn motorists that the remains exist in the roadway. AMCO informed Stacey that it also denied her claim because Stacey failed to present competent evidence that the accident was in fact caused by an unidentified driver and not that Zerfas himself hit the deer.
[¶7.] In October 2012, Stacey brought a breach of contract action against AMCO for its failure and refusal to pay uninsured motorist benefits as a result of Zerfas's accident. Stacey asserted that AMCO had an obligation under the terms of the insurance contract to pay uninsured motorist benefits for Zerfas's death because she would be legally entitled to recover damages from the unidentified driver who negligently left a deer carcass in the lane of travel. AMCO moved for summary judgment, and the circuit court held a hearing. At the conclusion of the hearing, the court orally granted AMCO's motion. It found no basis under the facts to support that the unidentified driver had a legal duty to Zerfas to remove the carcass or warn of its existence. The court issued an order granting AMCO summary judgment. Stacey appeals and we restate the issue as follows:
Did the circuit court err when it granted AMCO summary judgment because the unidentified hit-and-run driver did ...