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Martinmaas v. Engelmann6/28/2000
"use that care and skill ordinarily exercised under similar circumstances by physicians in good standing" when he subjected Martinmaas and Bertsch to improper sexual contact. That deviation from the required standard of care, notwithstanding Engelmann's state of mind, constituted malpractice. Therefore, evidence of his sexual misconduct could have supported a jury determination of malpractice for tort liability purposes, and the trial court did not abuse its discretion in denying his motions for directed verdict and judgment n.o.v.
[ ] We render this decision mindful of our well-established public policy disfavoring parties insuring against their own intentional acts. See SDCL 53-9-3 (providing that contracts which have the object of exempting anyone from responsibility for his own fraud, willful injury, or violation of law are against policy.); State Farm Mut. Auto. Ins. Co. v. Wertz, 540 NW2d 636 (SD 1995) (holding that driver who intentionally drives car into truck with intention of injuring passenger is not allowed to inflict deliberate harm with financial impunity.); Tri-State Ins. Co. of Minnesota v. Bollinger, 476 NW2d 697 (SD 1991) (stating that if insured, through intentional acts, consciously controls risks covered by the policy, the central concept of insurance is violated.); City of Fort Pierre v. United Fire and Cas. Co., 463 NW2d 845 (SD 1990) (reasoning that if a person is able to insure himself against economic consequences of his intentional acts, the deterrence attributable to financial responsibility is missing.).
[ ] Our decision today does not infringe upon that policy in any way. We emphasize that the fundamental issue here is not whether a particular insurance contract was intended to cover this conduct, but whether the conduct in question constitutes the tort of malpractice. Cf. Snyder v. Major, 789 FSupp 646, 650 (SDNY 1992) (stating that expansion of tort concept of malpractice more appealing than expansion of insurance concept of malpractice). Accordingly, we do not pass judgment on whether Engelmann's actions would be indemnified under a medical malpractice insurance policy. At this juncture, it is simply unnecessary and inappropriate for us to surmise what an insurer's or Engelmann's expectations as to coverage may or may not have been when entering into a malpractice insurance policy that is not even part of the record.
[ ] 2. The trial court did not abuse its discretion in consolidating Plaintiffs' cases for trial.
[ ] The denial or grant of a motion to consolidate suits is reviewed under an abuse of discretion standard. Case v. Murdock, 488 NW2d 885, 892 (SD 1992); Independent Sch. Dist. of City of Aberdeen v. First Nat'l Bank of Aberdeen, 67 SD 100, 113, 289 NW 425, 431 (1939).
[ ] SDCL 15-6-42(a) provides:
When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.
[ ] The trial court originally denied Plaintiffs' motion to consolidate. However, after determining that each plaintiff's testimony would be admissible in the others' cases, that the same experts would be testifying in each case, and that there were similar factual and legal issues which bound the cases and made them amenable to consolidation, the court reversed its previous ruling and granted the motion to consolidate.
[ ] Engelmann contends Plaintiffs' cases do not involve common questions of law and fact. He principally argues that the factual scenarios
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