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Cameron v. Osler

Supreme Court of South Dakota

June 19, 2019

KIMBERLYNN DAWN CAMERON, Plaintiff and Appellant,
v.
JASON ADAM OSLER Defendant, and WASTE CONNECTIONS OF SOUTH DAKOTA, INC., Defendant and Appellee.

          CONSIDERED ON BRIEFS ON APRIL 29, 2019

          APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE CRAIG A. PFEIFLE Judge

          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 appellee.

          WILBUR, RETIRED JUSTICE

         [¶1.] 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.

         Background

         [¶2.] 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.

         [¶3.] 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.

         [¶4.] 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.

         [¶5.] 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.

         Analysis

         [¶6.] 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)).

         [¶7.] 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 ...


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