CONSIDERED ON BRIEFS ON APRIL 29, 2019
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CRAIG A.
MICHAEL W. STRAIN of Strain Morman Law Firm Sturgis, South
Dakota Attorneys for plaintiff and appellant.
CASSIDY M. STALLEY of Lynn, Jackson, Shultz & Lebrun,
P.C. Rapid City, South Dakota Attorneys for defendant and
WILBUR, RETIRED JUSTICE
After being injured in a car accident, Kimberlynn Cameron
brought suit against Jason Osler. She subsequently filed an
amended summons and complaint, adding a claim for vicarious
liability and naming Osler's employer, Waste Connections
of South Dakota, Inc., as a defendant. However, Cameron
failed to timely serve Osler, and he was dismissed from the
suit, leaving only Waste Connections as a defendant. Waste
Connections filed a motion to dismiss, asserting
Cameron's failure to timely serve Osler precluded suit
against Waste Connections. The circuit court agreed and
granted Waste Connections' motion to dismiss. Cameron
appeals. We reverse.
Osler and Cameron were in an automobile accident on September
23, 2014. When the accident occurred, Osler was operating a
vehicle owned by his employer, Waste Connections. Cameron
claimed she was injured as a result of the accident and that
Osler was at fault. On August 29, 2017, she filed a summons
and complaint against only Osler. She delivered the summons
and complaint to the local sheriff's office to be served
upon Osler. However, Osler was never served with the summons
and complaint because he could not be located.
Cameron obtained new counsel and, shortly before the statute
of limitations expired on her claim, she filed an amended
summons and complaint. She named Waste Connections as a
defendant and added a claim of vicarious liability against
Waste Connections based on Osler's negligence. Cameron
timely served Waste Connections with the amended summons and
complaint, but she did not timely serve Osler. The suit
against Osler was ultimately dismissed.
Waste Connections, in its answer to Cameron's suit,
asserted the statute of limitations as a defense. It also
filed a motion to dismiss, arguing that it could not be held
vicariously liable for Osler's conduct because Osler had
been adjudicated not negligent based on the suit being
dismissed against him with prejudice. In response, Cameron
argued that dismissal of Osler did not affect her suit
against Waste Connections because Osler was not a necessary
party. In her view, she needed only to prove Osler acted
negligently and did so within the scope of his employment,
not that Osler could be held personally liable.
After a hearing and after considering the parties'
briefs, the circuit court granted Waste Connections'
motion to dismiss. Cameron appeals, asserting the circuit
court erred. We review de novo whether the circuit court
erred in granting the motion to dismiss. Wojewski v.
Rapid City Reg'l Hosp. Inc., 2007 S.D. 33, ¶
11, 730 N.W.2d 626, 631.
Waste Connections' liability, if any, arises from the
doctrine of respondeat superior. "The ancient doctrine
of respondeat superior is well established as
'holding an employer or principal liable for the
employee's or agent's wrongful acts committed within
the scope of the employment or agency.'" Kirlin
v. Halverson, 2008 S.D. 107, ¶ 12, 758 N.W.2d 436,
444 (quoting Black's Law Dictionary (8th ed. 2004)). The
employer's liability is merely a derivative of the
employee's. See Estate of Williams v. Vandeberg,
2000 S.D. 155, ¶ 12, 620 N.W.2d187, 190. Therefore, we
have held that a plaintiff cannot proceed against an employer
when the negligent employee has been released via a
settlement with the plaintiff. Id. This is because
"the release of the culpable party extinguishes any
liability of the non-guilty principal." Id.
¶ 14 (citing Theophelis v. Lansing Gen. Hosp.,
424 N.W.2d 478, 480 (Mich. 1988)).
Here, however, there has been no settlement and release of
Osler. Rather, Cameron's suit against Osler has been
dismissed because the statute of limitations expired on her
claim against Osler. We have not before examined whether a
plaintiff can proceed against an employer when the
plaintiff's suit against the employee has been dismissed
as time barred. According to Osler, multiple courts have held
that such suit is permissible because the employee is not a
necessary party to a vicarious liability claim and the
employee's negligence can be determined in the
employee's absence. In response, Waste Connections