Argued 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.
WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.
[¶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 ...