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Openhowski v. Mahone6/14/2000
Appeals from the Second Judicial Circuit, Minnehaha County, SD Hon. Gene Kean, Judge
Hon. Glen A. Severson, Judge
Reversed
Considered on Briefs April 25, 2000; Opinion Filed Jun 14, 2000
[ ] Alex Mahone (Alex) and Grinnell Mutual Reinsurance Company (Grinnell) each submitted petitions for intermediate appeal to this Court from orders denying their individual motions for summary judgment. We granted the petitions and consolidated them for review. We reverse the orders of the trial courts and remand with instructions.
PROCEDURAL HISTORY
[ ] Both actions derive from an injury allegedly suffered by Thaddeus Openhowski (Openhowski), a police officer, when he attempted to arrest Alex at the home of his father, Robert Mahone (Robert) on September 26, 1995. Openhowski gave notice of a claim against Robert's homeowner's insurance policy with Grinnell. Grinnell commenced a declaratory judgment action against Robert, Robert's wife, Annette (Annette), Alex and Openhowski. Grinnell alleged it had issued a homeowner's policy to Robert that was in effect on the date of the alleged injury. Grinnell further alleged Robert was the insured under the policy, Alex was not an insured, and the actions of Alex were therefore excluded from coverage. Grinnell sought a judgment declaring the rights, duties, obligations and legal relations of the parties relative to the insurance coverage and a determination that it had no duty to defend Robert, Annette or Alex. All four defendants were personally served with the summons and complaint in June and July 1997.
[ ] Openhowski answered Grinnell's complaint in a timely manner. Robert, Annette and Alex did not answer or make any appearance. Grinnell brought a motion for default judgment against Robert, Annette and Alex. Grinnell filed a motion for summary judgment against Openhowski on the grounds that his claim had expired September 26, 1998, and was therefore barred by the statute of limitations. The trial court denied the motions and Grinnell appeals.
[ ] Openhowski filed a personal injury action against Alex in October 1997, claiming Alex negligently caused his injuries when he attempted to arrest him September 26, 1995. The summons and complaint were delivered to the Minnehaha County sheriff's office in September 1997. They were returned without service October 2, 1997. Upon Openhowski's motion and affidavit claiming that personal service on Alex could not be obtained, the trial court ordered service by publication. No publication occurred, however, and the action did not commence.
[ ] On September 18, 1998, a summons and complaint were again delivered to the Minnehaha County sheriff's office for service on Alex. The documents were returned without service December 9, 1998. In the meantime, on November 13, 1998, the trial court granted Openhowski's second motion and affidavit for service by publication. The summons was published for four consecutive weeks commencing November 20, 1998.
[ ] In January 1999, Openhowski filed a motion for default judgment. Alex filed an answer February 1, 1999, and the motion was withdrawn. Alex then filed a motion for summary judgment asserting that Openhowski's claim was barred by the statute of limitations. The trial court denied the motion and Alex appeals.
[ ] In both cases, Openhowski opposed the motions for summary judgment by affidavits generally stating that Alex had absconded to Denver, Colorado to avoid warrants of arrest and was unwilling to return to Sioux Falls.
DECISION
[ ] Whether the trial courts erred in denying the motions for summary judgment.
[ ] In
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