Papousek v. De Smet Farm Mutual Insurance Co. of South Dakota

2016 SD 53, 883 N.W.2d 503, 2016 S.D. LEXIS 93, 2016 WL 3940166
South Dakota Supreme Court·Decided July 20, 2016·No. 27658·Published

Opinions

KERN, Justice.

[¶ 1.] . Insured’s cattle died in 2013 during Winter Storm Atlas. Insurer declined coverage, claiming a plain and ordinary construction of the insurance policy providing indemnification for loss of livestock by drowning precluded recovery. A circuit court agreed and granted summary judgment in favor of insurer. We, reverse.

Facts and Procedural History

[¶2.] Richard and Lorayna Papousek own and operate a crop-andrlivestock ranch in Quinn, South Dakota, A massive, record-breaking storm named Winter Storm Atlas struck the area October 3-5, [504]*5042013. The storm began as rain and then turned into snow. After the' storm subsided, Papouseks discovered that 93 of their yearling heifers (cattle) were dead. • Pa-pouseks hired Dr. Jim McConaghy, DVM, to ascertain the cause of the cattle’s death. Dr. McConaghy conducted postmortem examinations (necropsies) on 8 to 10 of the cattle. Dr. McConaghy determined the cause of the cattle’s death was drowning.

[¶ 3.] At the time of the storm, Papou-seks had in effect a Farmowner-Ranc-howner Policy (Policy) purchased from De Smet Farm Mutual Insurance Company of South Dakota (De Smet). The’Policy, as it relates to the cattle, is a named-peril policy that transferred the risk of loss from 12 identified perils to De Smet. One of the perils insured “against direct physical loss to [cattle] caused by ... [djrowning.”1 Papouseks filed a claim under the drowning provision, but De Smet denied the claim because none of the 93 cattle were found submerged in water.

[¶ 4.] ■ Papouseks filed an action for declaratory judgment in circuit court, per SDCL chapter 21-24, seeking a decision as to whether the Policy covered the cattle losses. Following deposition testimony by Richard Papousek and Dr. McConaghy, De Smet and Papouseks filed cross-motions for summary judgment. The circuit court issued a written opinion holding that the plain meaning" of drowning is “the deprivation of life by immersion in water or other liquid.” Since none of the cattle were found submerged in water, the court granted summary judgment in favor of De Smet. Papouseks appeal the court’s interpretation of the drowning provision. Papouseks argue the drowning provision is ambiguous and, therefore, should be construed in their favor. See Zoo Props., LLP v. Midwest Family Mut. Ins. Co., 2011 S.D. 11, ¶ 5, 797 N.W.2d 779, 780. Whether an insurance contract is ambiguous is a question of law reviewed de novo. Ass Kickin Ranch, LLC v. N. Star Mut. Ins. Co., 2012 S.D. 73, ¶ 7, 822 N.W.2d 724, 726.

Decision

[¶5.] “Drowning” is undefined in the Policy, and both De Smet and Phpou-seks offer reasonable interpretations of the term. De Smet points out that a common understanding of the term requires some form of.submersion or immersion.in water or other liquid, See De La Cruz.v. Combined Am. Ins. Co., 527 S.W.2d 820, 821 (Tex.Civ.App.1975) (referring to drowning “as meaning .to deprive of life by immersion in water or other iiquid”); Webster’s Third New. International Dictionary 695 (4th ed.1976) (defining drowning in part as “to suffocate by submersion in water or some other liquid”). Papouseks point out, however, that reasonable people understand that the hallmark of drowning is not the presence of water outside the body;, rather, it .is death caused by water or fluid within the body. See Int’l Inv’rs Life Ins. Co., Inc. v. Utrecht, 536 S.W.2d 397, 399 (Tex.Civ.App.1976) (referring to drowning as “death resulting from inhalation of water or some other fluid into the lungs”); Webster’s Third New International Dictionary 695 (4th ed,1976) (defining drowning in part as “to suffocate because of excess body fluid that interferes with the passage of oxygen from the lungs to the tissue”); see also Saunders Comprehensive Veteri[505] nary Dictionary 362 (2d ed.1998) (defining drowning as “suffocation resulting from aspiration of water ... or fluid. Drowning occurs because the liquid prevents breathing.”). Because we agree with Papouseks that the undefined term is susceptible to these two reasonable interpretations, the provision indemnifying loss caused by drowning is ambiguous. We therefore construe the provision liberally in Papou-seks’ favor. See Zoo Props., LLP, 2011 S.D. 11, ¶ 5, 797 N.W.2d at 780. In turn, the dispositive question is whether Papou-seks established that the cattle died from inhaling water.

[¶ 6.] During the postmortem examinations of the cattle, Dr. McConaghy found the cattle’s lungs were saturated with water- and their airways were obstructed with foam (air trapped in water). In addition, Dr. McConaghy found clear liquid in all airways and running from the cattle’s noses. Dr. McConaghy speculated that during the storm, the cattle inhaled large quantities of rain and then snow, resulting in a lack of oxygen and eventually cardiac arrest and death. In Dr. McConaghy’s opinion, his findings indicated that the cattle “absolutely died due to drowning.” De Smet neither refuted Dr. MeConaghy’s findings nor contradicted his opinion with competent evidence. Indeed, De Smet proffered no evidence to the contrary. Based on this record, we find Pa-pouseks established coverage under the drowning provision.

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Papousek v. De Smet Farm Mutual Insurance Co. of South Dakota, 2016 SD 53, 883 N.W.2d 503, 2016 S.D. LEXIS 93, 2016 WL 3940166 (S.D. 2016).

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Related

Zoo Properties, LLP v. Midwest Family Mutual Insurance Co.
2011 S.D. 11 (South Dakota Supreme Court, 2011)
Ass Kickin Ranch, LLC v. North Star Mutual Insurance Co.
2012 S.D. 73 (South Dakota Supreme Court, 2012)
International Investors Life Insurance Co. v. Utrecht
536 S.W.2d 397 (Court of Appeals of Texas, 1976)
De La Cruz v. Combined American Insurance Co.
527 S.W.2d 820 (Court of Appeals of Texas, 1975)