South Dakota State Cement Plant Commission v. Wausau Underwriters Insurance Co.8/23/2000
the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.
Stoebner v. South Dakota Farm Bur. Mut. Ins. Co., 1999 SD 106, , 598 NW2d 557, 558 (quoting Weiss v. Van Norman, 1997 SD 40, , 562 NW2d 113, 115 (citations omitted)). " disputed fact is not 'material' unless it would affect the outcome of the suit under the governing substantive law in that a 'reasonable jury could return a verdict for the nonmoving party.'" Weiss, 1997 SD 40, n2, 562 NW2d at 116 (quoting Parsons v. Dacy, 502 NW2d 108, 110 (SD 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 US 242, 248, 106 SCt 2505, 2510, 91 LEd2d 202, 212 (1986)). We will affirm a granting of summary judgment "if the trial court has correctly decided the legal issues before it." Alverson v. Northwestern Nat'l Cas. Co., 1997 SD 9, , 559 NW2d 234, 235 (citing Farmland Ins. Cos. v. Heitmann, 498 NW2d 620, 622 (SD 1993) (citations omitted)).
[ ] The second part of this case on indemnification of the settlement amount was decided by a court trial. The court entered findings of fact and conclusions of law on June 15, 1998. A "trial court's findings of fact and decision are presumed correct and we will not seek reasons to reverse." City of Winner v. Bechtold Invs., Inc., 488 NW2d 416, 418 (SD 1992) (citations omitted). In addition, since this action was tried to a court without a jury, we "will not disturb findings unless evidence clearly preponderates against them." Id. (citing Gross v. Connecticut Mut. Life Ins. Co., 361 NW2d 259 (SD 1985) (further citations omitted)). "'In applying the "clearly erroneous" standard, we do not ask whether we would have made the same findings as did the trial court. Rather, the test is whether, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.'" Mash v. Cutler, 488 NW2d 642, 645-46 (SD 1992) (quoting Chamberlain Livestock Auction v. Penner, 462 NW2d 479, 482 (SD 1990) (citing Temple v. Temple, 365 NW2d 561 (SD 1985); Cunningham v. Yankton Clinic, P.A., 262 NW2d 508 (SD 1978); In re Estate of Hobelsberger, 85 SD 282, 181 NW2d 455 (1970))). The construction and interpretation of an insurance contract is a question of law. See Colonial Ins. Co. of Cal. v. Lundquist, 539 NW2d 871, 873 (SD 1995), and State Farm Mut. Auto. Ins. Co. v. Wertz, 540 NW2d 636, 638 (SD 1995). Our standard of review for questions of law is de novo; therefore, "this Court is not required to defer to the trial court's legal determinations." Wertz, 540 NW2d at 638 (citations omitted).
DECISION
[ ] 1. Whether Wausau had a duty to defend the underlying lawsuit because the allegations of the underlying complaint fall squarely within the absolute pollution exclusion of the Wausau policies.
[ ] It is concerning and frustrating that this case was not resolved in a separate declaratory judgment action preceding the trial. This Court has previously noted that " ypically, and most appropriately, the issue regarding an insurer's duty to defend arises in a separate declaratory judgment action, preceding a trial on the underlying damage action." Stoebner, 1999 SD 106, , 598 NW2d at 56
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