United Guaranty Commercial Insurance Co. v. Makens

South Dakota Supreme Court

United Guaranty Commercial Insurance Co. v. Makens

301 N.W.2d 427, 1981 S.D. LEXIS 208

CourtSouth Dakota Supreme Court

DecidedFebruary 4, 1981

DocketNo. 13151

StatusPublished

This text of 301 N.W.2d 427 (United Guaranty Commercial Insurance Co. v. Makens) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United Guaranty Commercial Insurance Co. v. Makens, 301 N.W.2d 427, 1981 S.D. LEXIS 208 (S.D. 1981).

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Opinion

MILLER, Circuit Judge.

Appellant seeks reversal of the summary judgment granted in favor of appellees. We affirm.

Both appellant and appellees moved for summary judgment, generally agreeing that the complicated facts are not in dispute. Wm. Collins, Inc. v. S. D. State Bd. of Transp., 264 N.W.2d 491 (S.D.1978) and Salmon v. Bradshaw, 84 S.D. 500, 173 N.W.2d 281 (1969).

There does not appear to be a genuine issue as to material facts. Wilson v. Great Northern Railway Company, 83 S.D. 207, 157 N.W.2d 19 (1968). A legal issue, however, is present as to whether a certain payment made by appellant to one Inland-Ryerson Construction Products Company was in reality (1) a payment made pursuant to its obligations under a certain lease guaranty policy; (2) a payment to mitigate its damages under said policy; or (3) a separate payment to obtain its release from future obligations under said policy.

The trial court in granting summary judgment held that as a matter of law, when considering the unique facts presented, the payment made by appellant was one whereby it was seeking and obtaining release from its future obligations under the policy and that it was not made pursuant to [428]*428any past obligations thereunder or for the purpose of mitigating its damages.

In this appeal we are viewing the evidence most favorable to the party against whom summary judgment was entered. Wm. Collins, Inc. v. S. D. State Bd. of Transp., supra. We have reviewed the trial court’s determination and agree with its determination and the summary judgment entered. Metro. Util. Dist., Etc. v. Fid. & Dep. Co. of Maryland, 200 Neb. 635, 264 N.W.2d 854 (1978); Walter E. Heller & Company v. Allen, 412 S.W.2d 712 (Tex.Civ.App.1967); United States Leasing Corporation v. duPont, 69 Cal.2d 275, 70 Cal.Rptr. 393, 444 P.2d 65 (1968).

Affirmed.

All the Justices concur.

MILLER, Circuit Judge, sitting for FOSHEIM, Justice, disqualified.

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MILLER, Circuit Judge.

Appellant seeks reversal of the summary judgment granted in favor of appellees. We affirm.

Both appellant and appellees moved for summary judgment, generally agreeing that the complicated facts are not in dispute. Wm. Collins, Inc. v. S. D. State Bd. of Transp., 264 N.W.2d 491 (S.D.1978) and Salmon v. Bradshaw, 84 S.D. 500, 173 N.W.2d 281 (1969).

There does not appear to be a genuine issue as to material facts. Wilson v. Great Northern Railway Company, 83 S.D. 207, 157 N.W.2d 19 (1968). A legal issue, however, is present as to whether a certain payment made by appellant to one Inland-Ryerson Construction Products Company was in reality (1) a payment made pursuant to its obligations under a certain lease guaranty policy; (2) a payment to mitigate its damages under said policy; or (3) a separate payment to obtain its release from future obligations under said policy.

The trial court in granting summary judgment held that as a matter of law, when considering the unique facts presented, the payment made by appellant was one whereby it was seeking and obtaining release from its future obligations under the policy and that it was not made pursuant to [428]*428any past obligations thereunder or for the purpose of mitigating its damages.

In this appeal we are viewing the evidence most favorable to the party against whom summary judgment was entered. Wm. Collins, Inc. v. S. D. State Bd. of Transp., supra. We have reviewed the trial court’s determination and agree with its determination and the summary judgment entered. Metro. Util. Dist., Etc. v. Fid. & Dep. Co. of Maryland, 200 Neb. 635, 264 N.W.2d 854 (1978); Walter E. Heller & Company v. Allen, 412 S.W.2d 712 (Tex.Civ.App.1967); United States Leasing Corporation v. duPont, 69 Cal.2d 275, 70 Cal.Rptr. 393, 444 P.2d 65 (1968).

Affirmed.

All the Justices concur.

MILLER, Circuit Judge, sitting for FOSHEIM, Justice, disqualified.

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