[698]*698HENDERSON, Justice (on reassignment).
PROCEDURAL HISTORY/ISSUES
This is an appeal from a companion action to a personal injury lawsuit, Townsend v. Bollinger, Civ. No. 90-250, Seventh Judicial Circuit, Pennington County, which action is still pending. Townsend is seeking compensatory and punitive damages against Bollinger for injuries allegedly sustained in an altercation between the two men on September 16, 1989.
After commencement of the companion action, Bollinger tendered defense of the matter to his insurer, Tri-State Insurance Company of Minnesota (Tri-State). TriState rejected the tender and discovery proceeded in this companion case. Townsend subsequently served and filed an Amended Complaint. Bollinger again tendered the defense to Tri-State who again refused to defend. Tri-State then commenced a declaratory judgment action. Bollinger served and filed an Answer and Counterclaim, to which Tri-State served a Reply.
Tri-State moved the trial court for summary judgment. Bollinger filed its own Motion for Summary Judgment or for Judgment on the Pleadings, a Motion in Resistance to Plaintiffs Motion for Summary Judgment, a Memorandum of Law, and a Motion for Stay or Continuance on Plaintiffs Motion for Summary Judgment. Bollinger also filed an Affidavit in resistance to the summary judgment motion brought by Tri-State and in support of Bollinger’s own summary judgment motion.
Tri-State’s motion for summary judgment was scheduled for hearing on June 25, 1990, at 11:00 a.m. Bollinger prepared various motions, a memorandum of law and an affidavit in response. These documents were mailed to the clerk of courts on Friday, June 22nd, the Friday before the hearing. These documents were not received by the clerk of courts until Monday morning, the day of the hearing.
However, Bollinger’s counsel hand-delivered “work copies” of the documents to the courthouse early Monday morning. Nevertheless, the trial judge still did not receive them in time to review the documents before the hearing. At the hearing, the trial judge expressed his displeasure with the late delivery of the responsive pleadings and struck them on the grounds that they had not been timely served under SDCL 15-6-6(d). The trial court granted TriState’s motion for summary judgment. The trial court subsequently entered an Order Granting Plaintiff’s Motion for Summary Judgment. From this Order, Bollinger appeals to this Court and presents the following issues:
I. Whether the trial court erred in striking Bollinger’s responsive pleadings and granting Tri-State summary judgment;
II. Whether Tri-State is obligated to provide Bollinger with a defense and coverage in connection with the underlying claim;
III. Whether the pertinent coverage and defense inquiry was the “result” of Bollinger’s act, and not the “act” itself; and
IV. Whether Bollinger is entitled to recover attorney’s fees in the declaratory judgment action and in the companion case.
FACTS
Frederick M. Bollinger (Bollinger) and Dennis Townsend (Townsend) had been close friends for many years. After Bol-linger began dating his present wife, Barb, and ended a relationship with Townsend’s sister, the two men had a falling out. Deterioration of this relationship between Bol-linger and Townsend continued when Bol-linger became convinced that Townsend had misappropriated money from Bollinger’s business while he was on vacation.
We trace the facts, in this scenario, which are now in dispute. In September 1989, Townsend asked Bollinger if he would like to go hunting the following day. Bollinger viewed this as an opportunity to patch up their friendship and agreed to go. The two spent the next afternoon hunting. Both parties consumed alcoholic beverages [699]*699during the course of the afternoon and evening.
After dark, Bollinger and Townsend returned to Bollinger’s residence and Bollinger invited Townsend inside. Townsend told Bollinger he had some things to say to Barb and that Bollinger might prefer to wait outside rather than hear what Townsend had to say. Bollinger said he was not concerned.
Once inside, Townsend launched into a tirade against Barb over the breakup of Bollinger’s previous relationship with Townsend’s sister. Townsend then accused Bollinger of cheating him out of some money, which Bollinger had received for work, that was accomplished while Townsend was employed by Bollinger. Bollinger became increasingly incensed over Townsend’s comments and went outside on several occasions to calm down.
On one or more occasions, Bollinger told Townsend to get out of the house and eventually threatened him with physical harm if he did not leave. Townsend refused to leave. Bollinger then punched Townsend in the face, knocking him back into the chair in which he was sitting. In the struggle which followed, Townsend was either yanked up by Bollinger or attempted to stand up and the two fell to the floor. Although Townsend landed on top of Bollinger and was retaliating by striking Bollinger on the chest and arms, Bollinger succeeded in knocking Townsend over backwards and began beating him in the face with his fists. Bollinger clearly had the better of the fight, which ended when Barb told Bollinger to stop.
After the fight, Townsend told Bollinger that he thought his leg or ankle was broken. An ambulance was called and Townsend was taken to the hospital. Bollinger was arrested on charges of assault but; never prosecuted.
Pertinent Insurance Provisions To Be Considered
Bollinger asserts coverage under his homeowner’s insurance policy procured from Tri-State. This homeowner’s insurance policy provided the following.
Under “Section II — Liability Coverage,” subsection “Coverage E — Personal Liability,” the policy stated:
If a claim is made or a suit is brought against an insured for damages because of a bodily injury ... caused by an occurrence to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages which the insured is legally liable. Damages include prejudgment interest awarded against the insured; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.
Under the subsection titled “Coverage F — Medical Payments to Others,” the policy provided:
We will pay the necessary medical expenses that are incurred or medically ascertained within three days of an accident causing bodily injury ... as to others, this coverage applies only:
1. To a person on the insured location with the permission of an insured.
Under “Subsection II — Exclusions” of the policy, it is stated:
1. Coverage E — Personal Liability and Coverage F — Medical Payments To Others do not apply to bodily injury or property damage:
A. Which is expected or intended by the insured.
These provisions of the homeowner’s insurance policy are at the crux of the dispute between Bollinger and Tri-State. We have digested issues I, II, and III above under two discussions/holdings,
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[698]*698HENDERSON, Justice (on reassignment).
PROCEDURAL HISTORY/ISSUES
This is an appeal from a companion action to a personal injury lawsuit, Townsend v. Bollinger, Civ. No. 90-250, Seventh Judicial Circuit, Pennington County, which action is still pending. Townsend is seeking compensatory and punitive damages against Bollinger for injuries allegedly sustained in an altercation between the two men on September 16, 1989.
After commencement of the companion action, Bollinger tendered defense of the matter to his insurer, Tri-State Insurance Company of Minnesota (Tri-State). TriState rejected the tender and discovery proceeded in this companion case. Townsend subsequently served and filed an Amended Complaint. Bollinger again tendered the defense to Tri-State who again refused to defend. Tri-State then commenced a declaratory judgment action. Bollinger served and filed an Answer and Counterclaim, to which Tri-State served a Reply.
Tri-State moved the trial court for summary judgment. Bollinger filed its own Motion for Summary Judgment or for Judgment on the Pleadings, a Motion in Resistance to Plaintiffs Motion for Summary Judgment, a Memorandum of Law, and a Motion for Stay or Continuance on Plaintiffs Motion for Summary Judgment. Bollinger also filed an Affidavit in resistance to the summary judgment motion brought by Tri-State and in support of Bollinger’s own summary judgment motion.
Tri-State’s motion for summary judgment was scheduled for hearing on June 25, 1990, at 11:00 a.m. Bollinger prepared various motions, a memorandum of law and an affidavit in response. These documents were mailed to the clerk of courts on Friday, June 22nd, the Friday before the hearing. These documents were not received by the clerk of courts until Monday morning, the day of the hearing.
However, Bollinger’s counsel hand-delivered “work copies” of the documents to the courthouse early Monday morning. Nevertheless, the trial judge still did not receive them in time to review the documents before the hearing. At the hearing, the trial judge expressed his displeasure with the late delivery of the responsive pleadings and struck them on the grounds that they had not been timely served under SDCL 15-6-6(d). The trial court granted TriState’s motion for summary judgment. The trial court subsequently entered an Order Granting Plaintiff’s Motion for Summary Judgment. From this Order, Bollinger appeals to this Court and presents the following issues:
I. Whether the trial court erred in striking Bollinger’s responsive pleadings and granting Tri-State summary judgment;
II. Whether Tri-State is obligated to provide Bollinger with a defense and coverage in connection with the underlying claim;
III. Whether the pertinent coverage and defense inquiry was the “result” of Bollinger’s act, and not the “act” itself; and
IV. Whether Bollinger is entitled to recover attorney’s fees in the declaratory judgment action and in the companion case.
FACTS
Frederick M. Bollinger (Bollinger) and Dennis Townsend (Townsend) had been close friends for many years. After Bol-linger began dating his present wife, Barb, and ended a relationship with Townsend’s sister, the two men had a falling out. Deterioration of this relationship between Bol-linger and Townsend continued when Bol-linger became convinced that Townsend had misappropriated money from Bollinger’s business while he was on vacation.
We trace the facts, in this scenario, which are now in dispute. In September 1989, Townsend asked Bollinger if he would like to go hunting the following day. Bollinger viewed this as an opportunity to patch up their friendship and agreed to go. The two spent the next afternoon hunting. Both parties consumed alcoholic beverages [699]*699during the course of the afternoon and evening.
After dark, Bollinger and Townsend returned to Bollinger’s residence and Bollinger invited Townsend inside. Townsend told Bollinger he had some things to say to Barb and that Bollinger might prefer to wait outside rather than hear what Townsend had to say. Bollinger said he was not concerned.
Once inside, Townsend launched into a tirade against Barb over the breakup of Bollinger’s previous relationship with Townsend’s sister. Townsend then accused Bollinger of cheating him out of some money, which Bollinger had received for work, that was accomplished while Townsend was employed by Bollinger. Bollinger became increasingly incensed over Townsend’s comments and went outside on several occasions to calm down.
On one or more occasions, Bollinger told Townsend to get out of the house and eventually threatened him with physical harm if he did not leave. Townsend refused to leave. Bollinger then punched Townsend in the face, knocking him back into the chair in which he was sitting. In the struggle which followed, Townsend was either yanked up by Bollinger or attempted to stand up and the two fell to the floor. Although Townsend landed on top of Bollinger and was retaliating by striking Bollinger on the chest and arms, Bollinger succeeded in knocking Townsend over backwards and began beating him in the face with his fists. Bollinger clearly had the better of the fight, which ended when Barb told Bollinger to stop.
After the fight, Townsend told Bollinger that he thought his leg or ankle was broken. An ambulance was called and Townsend was taken to the hospital. Bollinger was arrested on charges of assault but; never prosecuted.
Pertinent Insurance Provisions To Be Considered
Bollinger asserts coverage under his homeowner’s insurance policy procured from Tri-State. This homeowner’s insurance policy provided the following.
Under “Section II — Liability Coverage,” subsection “Coverage E — Personal Liability,” the policy stated:
If a claim is made or a suit is brought against an insured for damages because of a bodily injury ... caused by an occurrence to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages which the insured is legally liable. Damages include prejudgment interest awarded against the insured; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent.
Under the subsection titled “Coverage F — Medical Payments to Others,” the policy provided:
We will pay the necessary medical expenses that are incurred or medically ascertained within three days of an accident causing bodily injury ... as to others, this coverage applies only:
1. To a person on the insured location with the permission of an insured.
Under “Subsection II — Exclusions” of the policy, it is stated:
1. Coverage E — Personal Liability and Coverage F — Medical Payments To Others do not apply to bodily injury or property damage:
A. Which is expected or intended by the insured.
These provisions of the homeowner’s insurance policy are at the crux of the dispute between Bollinger and Tri-State. We have digested issues I, II, and III above under two discussions/holdings, infra.
DECISION
I.
Tri-State Insurance Company refuses to defend Bollinger under its homeowner’s insurance policy. Does it have a duty to do so under (1) this set of facts and (2) the language in the policy? Did the trial court have the procedural authority to strike all of Bollinger’s responsive showings to TriState’s Motion for Summary Judgment? Provisions of the policy are a “given.” [700]*700Facts surrounding the combat and its intended results are all questions of fact.1
Townsend, whose ankle was broken in the fracas at Bollinger’s home, was “obviously intoxicated” according to the records of the hospital, so noted by the doctors attending him. He had facial lacerations at the hospital (which could be expected in combat, a fracas, or tussle) and a diagnosed fractured ankle (which, perhaps, is not a reasonably foreseeable injury in a tussle at a home).
Trial court below struck Bollinger’s showing wherein he resisted TriState’s Summary Judgment Motion. Believing that the showing was tardy, trial court so declared that the showing, including an affidavit contravening Tri-State’s factual explanation of the tussle scenario, was untimely. Thereupon, trial court struck all of Bollinger’s responsive pleadings and assertions. We believe this was improper legal procedure. Trial court clearly misinterpreted or did not apply SDCL 15-6-5(c) and (d).2 As applied to these facts, timeliness of service, and the applicable civil procedure, Bollinger had the procedural right to serve his documents prior to the day of the hearing. SDCL 15-6-56(c) provides a motion for summary judgment:
shall be served at least ten days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits.
(Emphasis added). SDCL 15-6-5(b) provides for service by mail and states: “Service by mail ... is complete upon mailing.” See Madsen v. Preferred Painting Contractor, 89 S.D. 397, 233 N.W.2d 575 (1975). Bollinger’s affidavit and memorandum were timely served prior to the day of the hearing and the trial court erred in striking them as untimely. It was procedural error to disregard Bollinger’s showing. Without any resistance in the record, Bollinger’s defeat in the action was an inevitable conclusion: Bollinger was defeated— lifeless in the case — for want of resistance to Motion for Summary Judgment. It was therefore, we hold, prejudicial error. Trial court did not consider Bollinger’s resistance for it totally struck them. Having struck his pleadings, the ease was in a posture where one side of the case was considered and the other was not.
This appears to be an interesting procedural facet of the case below: TriState never filed, by responsive showing, any affidavit to contravene Bollinger’s Motion for Summary Judgment. And TriState filed no affidavit in support of its Motion for Summary Judgment.
Tri-State carried the burden of proof as the moving party; the evidence must be viewed most favorably to the nonmoving party. Koeniguer v. Eckrich, 422 N.W.2d 600 (S.D.1988). The trial court took a 100% opposite view.
We reverse the trial court on its statutory, procedural error. Said error had an effect on the final result and affected the rights of the party assigning the error. K & E Land and Cattle, Inc. v. Mayer, 330 N.W.2d 529, 533 (S.D.1983).
II.
Furthermore, the trial court should not have granted summary judgment where the pleadings, and all supporting documents, demonstrate that there is a genuine issue of material fact and movant is not entitled to judgment as a matter of law. Aetna Life Insurance Co. v. McElvain, 363 N.W.2d 186 (S.D.1985).
[701]*701Tri-State appears to owe a duty to defend because of the language in the policy. Under Tri-State’s exclusion, Coverage E (Personal Liability) and Coverage F (Medical Payments to Others) do not apply to bodily injury or property damage “which is expected or intended by the insured.” Thus, bodily injury or property damage is that which has to be “expected or intended by the insured.” It surely is not the act of the insured which must be expected or intended for the conclusion to take effect. To adjudicate properly, we must inquire: do we mentally zero in on the result of the act or the act itself from which the result occurred? Therein, lie the central considerations of the issue.
Did Bollinger expect or intend to break Townsend’s ankle? Ordinarily, such an injury as a broken ankle is not intended in a fist fight in a home. Tri-State’s argument appears to rest solely upon a reading of the exclusionary language as applying to an intentional act by the insured, rather than if the resulting injuries were intended.
If, indeed, this policy is ambiguous, such ambiguity should be resolved in favor of Bollinger and against Tri-State. McGriff v. United States Fire Ins. Co., 436 N.W.2d 859 (S.D.1989). See also, Vanguard Ins. Co. v. Clarke, 181 Mich.App. 36, 448 N.W.2d 754 (1989).
We reiterate our holding in Hawkeye-Security Ins. Co. v. Clifford, 366 N.W.2d 489 (S.D.1985). Therein, we expressed that an insurer’s duty to defend and a duty to pay are on a totally independent footing. We held that the insurer’s duty to defend was far broader than a duty to pay. See also, Brown v. State Auto. Ins. Co. 293 N.W.2d 822 (Minn.1980). Here, Tri-State contracted by its policy to “Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. See, Pique v. Saia, 450 So.2d 654 (La.1984) wherein that court construed identical language to that in the present case to be ambiguous and therefore construed the language most favorably for the insured. Accord: United Services Automobile Ass’n. v. Elitzky, 358 Pa.Super. 362, 517 A.2d 982 (1986). See also, holdings supporting the position that injuries are caused by “accident,” according to the “quality of the result rather than the quality of the causes.” Taylor v. Imperial Casualty Indemnity Co., 82 S.D. 298, 144 N.W.2d 856, 859 (S.D.1966) and Western Casualty & Surety Co. v. Waisanen, 653 F.Supp. 825, 828-829 (D.S.D.1987) (quoting, Messersmith v. American Fidelity Company, 232 N.Y. 161, 133 N.E. 432 (1921)). In Messersmith, Justice Cardozo aptly expressed:
Injuries are accidental or the opposite for the purposes of indemnity according to quality of the results rather than the quality of the causes. The field of exclusion would be indefinitely expanded, if the [insurer’s] argument were pursued to the limit of its logic. Every act, if we exclude, as we must, gestures or movements that are automatic or instinctive, is wilful, when reviewed in isolation and irrespective of its consequences, (emphasis supplied).
Tri-State contends that an injury of this nature (broken ankle in a fist fight inside a home) must, per se, be excluded from coverage. We disagree. Precisely, such an argument was rejected in Vanguard Insurance Co. v. Cantrell, 18 Ariz.App. 486, 503 P.2d 962 (1972) wherein that court held: a presumption that a person intends the ordinary consequences of his voluntary actions, when theoretically attempting to determine the consequence of a voluntary act, has no application to interpretation of terms used in insurance contracts.
It is to be remembered that counts II and III involve allegations of negligence. In the companion case, what will the results be as those counts? No one knows now. It is possible that a jury could determine Bollinger to be negligent. In such a case, Tri-State would be liable to Townsend under the policy. Trial court’s decision to grant summary judgment was absolutely premature.
In summary, Bollinger could well have intended facial injury but not a broken ankle. A jury should sort this out, under proper instructions. It would be wrong to [702]*702have disparate judicial determinations, i.e., the trial court’s summary judgment in favor of Tri-State and a jury, in futuro, deciding Bollinger was negligent only. Therefore, the trial court is reversed.
ATTORNEY'S FEES
We remand this issue to the trial court in light of our decision. Due to the adverse summary judgment below, Bollinger was not awarded attorney’s fees. At issue is SDCL 58-12-3 which provides:
In all actions or proceedings hereafter commenced against any employer who is self-insured, pursuant to § 62-5-4, or insurance company, including any reciprocal or interinsurance exchange, on any policy or certificate of any type or kind of insurance, if it appears from the evidence that such company or exchange has refused to pay the full amount of such loss, and that such refusal is vexatious or without reasonable cause, the department of labor, the trial court and the appellate court, shall, if judgment or an award is rendered for plaintiff, allow the plaintiff a reasonable sum as an attorney’s fee to be recovered and collected as a part of the costs, provided, however, that when a tender is made by such insurance company, exchange or self-insurer before the commencement of the action or proceeding in which judgment or an award is rendered and the amount recovered is not in excess of such tender, no such costs shall be allowed. The allowance of attorney fees hereunder shall not be construed to bar any other remedy, whether in tort or contract, that an insured may have against the same insurance company or self-insurer arising out of its refusal to pay such loss.
Bollinger relies on SDCL 58-12-3 as South Dakota authority for an award of attorney’s fees. To paraphrase SDCL 58-12-3, attorney's fees may be awarded if the insurance company has refused to pay the full amount of the loss, and that such refusal is vexatious or without reasonable cause.
American Family Mut. Ins. v. Merrill, 454 N.W.2d 555 (S.D.1990) had a similar scenario to this case. There, this Court held that an insurer was not guilty of unreasonable or vexatious conduct in asserting and relying on its coverage defense and in seeking a determination of the coverage question in a declaratory judgment action.
This Court stated that the trial court must find conduct of insurer to be vexatious or without reasonable cause. It is a question of fact and is reviewed under the clearly erroneous standard. Firemans Fund Ins. Co. v. Bauer Dental Studio, Inc., 626 F.Supp. 1365 (D.S.D.1986); Ewalt v. Mereen-Johnson Mach. Co., 414 N.W.2d 28 (S.D.1987); Johnson v. Shelly Oil Co., 359 N.W.2d 130 (S.D.1984). Absent newly developed facts which would develop below, it appears that Tri-State, under the state of the record before us, has not acted vexatiously or without reasonable cause in paying the full amount of the loss. This being a factual question, we advise the trial court to enter findings of fact and conclusions of law at the appropriate time when the litigation has been tried in chief.
SABERS and AMUNDSON, JJ., concur in part and concur in result in part.
MILLER, C.J., and WUEST, J., concur in part and dissent in part.