#27264-a-JMK

2015 S.D. 97

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

NORTH STAR MUTUAL INSURANCE, Plaintiff and Appellee,

v.

CHARLES KORZAN and 

MICHAEL KORZAN, Defendants and Appellants,

and

HENRY ROGHAIR; RAYMOND 

STOTTS; BORK & SONS, INC.; 

WEST CENTRAL COOPERATIVE, INC.; 

TERRY DOWLING and DAVID WEBER, Defendants.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

JONES COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE MARK BARNETT

Judge

* * * *

MARCUS J. CHRISTIANSON of

Maschka, Riedy & Ries

Mankato, Minnesota Attorneys for plaintiff

and appellee. 

* * * *

CONSIDERED ON BRIEFS 

ON AUGUST 31, 2015 

OPINION FILED 12/16/15
JOHN W. BURKE of

Thomas, Braun, Bernard & Burke, LLP

Rapid City, South Dakota

and

JASON M. SMILEY of

Gunderson, Palmer, Nelson 

 & Ashmore, LLP

Rapid City, South Dakota Attorneys for defendants

and appellants.
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KERN, Justice

[¶1.] Insurance company sought declaratory judgment to determine whether 

an insurance policy provided coverage to insured and his brother for an incident in 

which a semi-trailer transporting a load of hay ignited and spread fire to nearby 

lands. Insured counterclaimed for declaratory judgment. After discovery, both

parties filed cross-motions for summary judgment seeking a determination 

regarding insurance company’s duty to defend and indemnify the insured. The 

circuit court denied insured’s motion for summary judgment and granted insurance 

company’s motion finding no coverage existed under the policy. The insured and his 

brother appeal. We affirm.

BACKGROUND

[¶2.] On September 19, 2012, Charles Korzan and his brother, Michael

Korzan, (Korzans) were moving hay bales from Charles’s property in Jones County 

to his property in Brule County to feed livestock. The weather and crop conditions 

were dangerously dry. To transport the hay bales, Michael drove a 1998 

International 9400 series semi-truck, hauling a 48-foot trailer. Charles drove a

similar semi-truck and trailer. Charles owned both semi-trucks and trailers.

Charles drove a load of hay out of the field toward Interstate 90, a distance of about 

nine miles, and Michael followed in the other semi-truck which was loaded with 

approximately 30 round hay bales secured by straps.

[¶3.] Prior to leaving the field, neither Charles nor Michael noticed any 

problems with the hay, including flames or smoke. However, after Michael started

driving, he began to feel heat on his arm through the open window and suspected a 
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hay bale was on fire. Charles observed the fire, called Michael on his cell phone,

and advised Michael that there was a fire and he should drive to Exit 177. Charles 

called 911 to report the fire and asked that the fire department meet them at Exit 

177. The semi-truck became inoperable due to the fire approximately three miles 

from the spot Charles and Michael first observed the fire, and one mile from 

Interstate 90. Michael was unaware that the semi-truck was spreading firebrands 

and sparks along either side of the road as he drove. Upon exiting the semi-truck,

Michael observed fire rolling across the prairie. Neither Charles nor Michael knew

what started the fire. 

[¶4.] Upon responding to the scene, Fire Chief Rich Sylva observed a semitruck with a flatbed trailer on fire and three separate fires on land along the route 

Michael had just driven. The fires were located near Okaton, South Dakota

(Okaton Fires). It is unknown what ignited the hay; however, officials confirmed

that the source of the Okaton Fires was “determined to have originated with the 

burning semi hauling hay.” Officials eliminated all other possible causes of the fire. 

The fire burned fencing, hay, power poles, outbuildings, and 2,465 acres of wheat 

stubble and grass.

[¶5.] Henry Roghair, Raymond Stotts, and Bork & Sons, Inc., filed a lawsuit 

against Charles asserting claims of nuisance, negligence, trespass, and punitive

damages for the Okaton Fires. Roghair and Stotts later amended their complaint to 
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include Michael as a defendant and add additional plaintiffs.1 The amendment also 

included a claim for wrongful entry.

[¶6.] On February 6, 2014, Charles’s insurance carrier, North Star Mutual 

Insurance Company (North Star), filed a separate action for declaratory judgment. 

North Star sought a determination as to whether it had a duty to defend and 

indemnify the Korzans for the Okaton Fires. The Korzans counterclaimed for 

declaratory judgment, asserting North Star had a duty to defend. After completing 

discovery, North Star and the Korzans filed cross-motions for summary judgment.

[¶7.] The competing summary judgment motions centered on interpretation 

of a farmowners insurance policy (the Policy) issued by North Star to Charles with a 

policy period of February 11, 2012, through February 11, 2013. The Policy

contained Coverage L - Personal Liability (Coverage L) which provided:

“We” pay, up to “our” “limit”, all sums for which an “insured” is 

liable by law because of “bodily injury” or “property damage” 

caused by an “occurrence” to which this coverage applies. “We” 

will defend a suit seeking damages if the suit resulted from 

“bodily injury” or “property damage” not excluded under this 

coverage.

The Policy also contained exclusions to Coverage L, including an exclusion for 

motorized vehicles2 (the Motorized Vehicle Exclusion). The Motorized Vehicle 

 

1. The additional plaintiffs include, David Weber, Brad Roghair, Shawna 

Roghair, Nathan Vander Schaaf, and Sherri Vander Schaaf.

2. The Policy defined motorized vehicle as “a self-propelled land or amphibious 

vehicle regardless of method of surface contact.” A “motor vehicle” is defined 

as “a ‘motorized vehicle’, a trailer, or a semi-trailer, and all attached 

machinery or equipment, if: a. it is subject to ‘motor vehicle’ registration; or b. 

it is designed for use on public roads.”
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Exclusion provided:

This policy does not apply to: . . . “bodily injury” or “property 

damage” which results from the ownership, operation, 

maintenance, use, occupancy, renting, loaning, entrusting, 

supervision, or “loading or unloading” of “motorized vehicles”, 

trailers, or watercraft owned, operated, or used by or rented or 

loaned to an “insured”.

[¶8.] North Star contended that this exclusion prohibited coverage under 

the Policy as the incident involved the use and operation of a motor vehicle. The 

Korzans countered, arguing that the exclusion did not apply because the incident 

involved independent acts of negligence that were “wholly separate” from the 

operation of the motor vehicle. The Korzans also argued that there were genuine 

issues of material fact regarding the cause of the fire and the acts of the Korzans 

which precluded summary judgment.

[¶9.] In addition to the exclusions, the Policy also contained an extension to 

Coverage L to pay for damages for which an insured is liable by law because of 

personal injury. This extension, referred to as the “Personal Injury Endorsement,” 

defined personal injury as “false arrest, false imprisonment, wrongful eviction, 

wrongful entry, wrongful detention, malicious prosecution, misrepresentation, libel, 

slander, defamation of character or invasion of privacy.”

[¶10.] Under this endorsement, North Star alleged that policy coverage did 

not extend to wrongful entry or trespass as the incident involved a fire which does 

not constitute a personal injury as defined in the Policy or by law. North Star 

argued in the alternative that even if the fire was construed to be a wrongful entry 

covered by the Personal Injury Endorsement, coverage would be precluded under 

the Motorized Vehicle Exclusion. In response, the Korzans submitted coverage was 
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proper as the spread of the fire was a wrongful entry which constituted a personal 

injury as set forth in the endorsement. The Korzans further argued that the 

Motorized Vehicle Exclusion did not apply to the Personal Injury Endorsement as it 

was not expressly reincorporated into the endorsement section of the Policy.

[¶11.] On October 23, 2014, the circuit court issued a memorandum decision

denying the Korzans’s motion for summary judgment and granting North Star’s 

motion finding no coverage under the Policy. The Korzans appeal. 

STANDARD OF REVIEW

[¶12.] We review a court’s denial of a motion for summary judgment under 

the de novo standard of review. Titus v. Chapman, 2004 S.D. 106, ¶ 13, 687 N.W.2d 

918, 923. Summary judgment is appropriate “if the pleadings, depositions, answers 

to interrogatories, and admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that the moving party is 

entitled to a judgment as a matter of law.” SDCL 15-6-56(c). The burden rests with 

the moving party to clearly demonstrate the absence of genuine issues of material 

fact and entitlement to judgment as a matter of law. Titus, 2004 S.D. 106, ¶ 13, 687 

N.W.2d at 923. “All reasonable inferences drawn from the facts must be viewed in 

favor of the non-moving party.” De Smet Farm Mut. Ins. Co. of S.D. v. Gulbranson 

Dev. Co., 2010 S.D. 15, ¶ 16, 779 N.W.2d 148, 155.

[¶13.] “Insurance contract interpretation is [also] a question of law, 

reviewable de novo.” Ass Kickin Ranch, LLC v. N. Star Mut. Ins. Co., 2012 S.D. 73, 

¶ 7, 822 N.W.2d 724, 726 (quoting De Smet Ins. Co. of S.D. v. Gibson, 1996 S.D.102,

¶ 5, 552 N.W.2d 98, 99). An insurer’s duty to defend and its duty to indemnify are 
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separate and independent duties. Hawkeye-Sec. Ins. Co. v. Clifford by Clifford, 366 

N.W.2d 489, 490 (S.D. 1985). “The duty to defend is much broader than the duty to 

pay a judgment rendered against the insured.” Id. The burden rests with the 

insurer “to show the claim clearly falls outside of the policy coverages” and that 

“there is no duty to defend.” De Smet Farm Mut. Ins. Co. of S.D., 2010 S.D. 15, 

¶ 18, 779 N.W.2d at 155. We look to the pleadings in the action and the language of 

the policy to determine if a duty to defend exists. Id. ¶ 19, 779 N.W.2d at 155. If 

even one claim is covered by the policy, an insurer must defend. Biegler v. Am. 

Family Mut. Ins. Co., 2001 S.D. 13, ¶ 20, 621 N.W.2d 592, 599. 

ANALYSIS

1. Whether the circuit court erred when it granted North Star’s 

motion for summary judgment and determined that it does not 

have a duty to defend or indemnify the Korzans.

[¶14.] The circuit court, finding that there were no genuine issues of material 

fact, denied coverage under the Policy on three grounds. First, the circuit court 

found that under the facts of the case the Motorized Vehicle Exclusion applied to 

Coverage L. Second, the circuit court found no coverage under the Personal Injury 

Endorsement of the Policy as the court determined that the term wrongful entry 

was not a personal injury and could not be construed to include property damages 

caused by a fire. Third, the court found that the Personal Injury Endorsement 

extended Coverage L and was therefore subject to the entire policy, including the

Motorized Vehicle Exclusion which prevented coverage.

a. Motorized Vehicle Exclusion

[¶15.] The Korzans first argue that the circuit court erred by finding North 

Star had no duty to defend in light of the Motorized Vehicle Exclusion to Coverage 
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L. The exclusion provided, in pertinent part, that the Policy did not apply to 

“‘property damage’ which results from the ownership, operation, maintenance, use, 

. . . or ‘loading or unloading’ of ‘motorized vehicles’, [or] trailers . . . .” In granting 

summary judgment, the circuit court noted that the pleadings contained numerous 

acts that directly involved the use, loading, maintenance, and operation of a motor 

vehicle. Citing to the allegations contained in the complaint, the circuit court listed 

acts in which the motor vehicle was directly involved in the Okaton Fires. The

Korzans “loaded and began hauling the hay from Charles’[s] field with two semi 

tractor-trailer trucks”; conducted an activity that presented a risk of fire in 

dangerous weather conditions and continued to operate the “truck while on fire”; 

after noticing the fire coming from Michael’s truck, “continue[d] to operate his semi 

tractor-trailer truck along the planned route”; “dropping firebrands on either side of 

the road, causing the ignition of fires along the entire distance they were traveling”; 

and after Michael “abandoned the truck, the fire ignited vegetation at that location 

as well.” The circuit court also referred to the September 19, 2012, report of Chief 

Sylva, which provided in part, “[t]he major issue with the large number of burned 

acres was the fact that the driver kept driving after he discovered that his load was 

on fire. The semi spread fire for over 3 miles along both sides of the road.”

[¶16.] In response, the Korzans contend that the fact that they were 

operating motor vehicles is not, in and of itself, determinative of the scope of 

coverage. The Korzans cite 9 Couch on Insurance 127.35 for the proposition that

“[c]overage will often be afforded where an independent act of negligence is 

determined to be the cause of injury, despite the involvement of a vehicle.” The 
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Korzans point to a number of alleged independent acts of negligence, as set forth in 

the underlying complaint, which they contend are nonvehicle-related and for which 

North Star must indemnify and defend.

[¶17.] In support of their argument, the Korzans direct our attention to 

several jurisdictions that have considered a motor vehicle exclusion in conjunction 

with independent acts of negligence. The Korzans urge this Court to adopt 

Minnesota’s divisible concurrent cause doctrine. The divisible concurrent cause 

doctrine permits coverage under an insurance policy with a motorized vehicle 

exclusion where there are two independent causes, one vehicle-related and one 

nonvehicle-related. Waseca Mut. Ins. Co. v. Noska, 331 N.W.2d 917, 921 (Minn. 

1983); State Farm Ins. Cos. v. Seefeld, 481 N.W.2d 62, 65 (Minn. 1992) (focusing on 

the actual injury or loss suffered, the court narrowed the holding in Noska to 

whether the nonvehicle related cause, “could have operated independent of a motor 

vehicle to cause the loss”); see Midwest Family Mut. Ins. Co. v. Schmitt, 651 N.W.2d 

843, 847 (Minn. Ct. App. 2002) (narrowly interpreting the holding of Noska to 

whether the nonvehicle-related act could have caused the actual injuries or 

damages without the use of a motor vehicle). See also Kalell v. Mut. Fire & Auto. 

Ins. Co., 471 N.W.2d 865, 868 (Iowa 1991) (holding a motor vehicle exclusion in a 

homeowners policy inapplicable “when two independent acts of negligence are 

alleged, one vehicle-related and one not vehicle-related, coverage is still provided

. . . unless the vehicle-related negligence is the sole proximate cause of the injury”). 

[¶18.] In response, North Star argues that the divisible concurrent cause 

doctrine should not be adopted; however, even if adopted, the Korzans have not 
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established an independent act of negligence necessary to overcome the Motorized 

Vehicle Exclusion. We agree that even if we were to adopt some form of this

doctrine, the Korzans could not prevail under these facts. In order for the divisible 

concurrent cause doctrine to apply and defeat application of the Motorized Vehicle 

Exclusion, the Korzans must establish that they committed at least one act of 

negligence that could have caused the Okaton Fires without the use of the motor 

vehicle. The independent acts of negligence which the Korzans claim are “entirely 

distinct from the use of a motor vehicle” include failing to “contain or suppress the 

fire” upon discovery; “negligently directing the fire [department] to meet at I-90”;

failing “to properly, adequately and reasonably inspect the truck and its mechanical 

equipment”; negligently deciding to haul hay when “weather conditions were 

conducive to wildland fire”; and “negligently allowing the unauthorized and 

wrongful entry of fire from the Korzan truck to property” of others. 

[¶19.] None of these acts are distinct from the use of a motor vehicle; rather, 

each act is inextricably intertwined with its use. As the Schmitt court stated, “the 

district court may consider theoretical possibilities to explain how the accident 

could have occurred without a motor vehicle in determining whether to apply the 

divisible, concurrent-cause doctrine. But if those possibilities are too remote, the 

doctrine will not be applied.” 651 N.W.2d at 849. The Korzans have failed to put 

forth a viable or cognizable theory as to how any of these acts could have led to the 

fire without the use of the motor vehicle.

[¶20.] The Korzans also contend that the circuit court erred in granting 

summary judgment because what caused the hay to ignite on the semi-trailer is
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unknown, which they submit creates a genuine issue of material fact. The Korzans 

point to an affidavit from Chief Sylva dated June 16, 2014, modifying the content of 

his original report in which he opined that, “[i]t is possible that whatever ignited 

the hay on the semi-trailer also ignited the surrounding land.” The Korzans submit 

in their Statement of Undisputed Material Facts that they do not know how the fire 

started and that “Charles Korzan has been told the Okaton Fires could have been 

the result of exhaust, lightning or static electricity.”

[¶21.] Other than speculation, the Korzans have not presented any factual 

cause for the fire and its spread other than the semi-truck being driven down the 

road with a flaming load of hay dropping sparks and firebrands as it traveled. Mere 

speculation and general assertions, without some concrete evidence, are not enough 

to avoid summary judgment. Stern Oil Co. v. Brown, 2012 S.D. 56, ¶ 8, 817 N.W.2d 

395, 398 (quoting Tolle v. Lev, 2011 S.D. 65, ¶ 8, 804 N.W.2d 440, 444).

[¶22.] Upon our independent review of the record, we find that the circuit 

court correctly determined that no genuine issues of material fact exist to prevent

application of the Motorized Vehicle Exclusion. The language of the Exclusion is 

clear and unambiguous. It precludes coverage as the property damage from the 

Okaton Fires resulted from the ownership, operation, use, supervision or loading or 

unloading of a motorized vehicle or trailer. Even if we were to adopt and apply the 

divisible concurrent cause doctrine, each of the alleged independent acts of 

negligence necessarily arose from the use of the motor vehicle and could not have 

operated independently of the semi-truck to cause the actual injuries that occurred. 

As the circuit court aptly stated, “[w]hen and how the Korzans operated that truck 
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are part, parcel, and the essence of the underlying action. No truck, no fire, no 

lawsuit.” The circuit court correctly determined that the Motorized Vehicle 

Exclusion applied to Coverage L. 

b. Personal Injury Endorsement

[¶23.] The Personal Injury Endorsement defined personal injury as any one 

of eleven listed tortious acts including wrongful entry. The Korzans contend that 

the Okaton Fires constitute a wrongful entry. They submit that the Okaton Fires 

were also a trespass upon the land because the plain meaning of the term trespass 

is synonymous to wrongful entry. The Korzans cite to Black’s Law Dictionary’s 

definition of trespass3 as well as several cases outside of our jurisdiction which have 

found trespass and wrongful entry to be synonymous. The Korzans then point to 

Chudy v. Larkin for the proposition that fire can trespass upon the land of another. 

27 S.D. 86, 129 N.W. 755 (1911) (affirming a judgment for damages in a complaint 

for “trespass for injury to the premises” caused when a fire set by defendant, 

escaped to plaintiff’s property).

[¶24.] North Star, agrees that the Policy provides coverage for personal 

injuries including wrongful entry; however, North Star argues the fire was not a 

wrongful entry. North Star argues that wrongful entry in the context of the Policy 

is limited to an offense against a person, not property damage, and does not include 

trespass, which is not the equivalent of wrongful entry.

 

3. “An unlawful act committed against the person or property of another; esp., 

wrongful entry on another’s real property.” Black’s Law Dictionary 1642 (9th 

ed. 2009).
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[¶25.] The term wrongful entry is undefined in the Policy and has not been 

defined by this Court or by statute. We decline to address this issue, however, as 

even if the Okaton Fires were determined to be a wrongful entry covered under the 

Personal Injury Endorsement, coverage is excluded by the Motorized Vehicle 

Exclusion.

c. Extension of Motorized Vehicle Exclusion to Personal Injury 

Endorsement

[¶26.] The Korzans argue that the Motorized Vehicle Exclusion of Coverage L 

does not extend to the Personal Injury Endorsement because the exclusion is not 

expressly reincorporated or directly included in the endorsement. By this 

argument, the Korzans necessarily contend the endorsement is separate from the 

rest of the Policy and provides stand-alone coverage. The Korzans’s argument is 

contrary to well-established law and the plain language of the Policy.

Endorsements or riders on a policy become a part of the policy, 

and must be construed with it. Such provisions in the body of 

the policy are not to be abrogated, waived, limited, or modified 

by the provisions of an endorsement or rider unless expressly 

stated therein that such provisions are substituted for those in 

the body of the policy, or unless the provisions in the policy 

proper and in the rider or endorsement are conflicting.

Pete Lien & Sons, Inc. v. First Am. Title Ins. Co., 478 N.W.2d 824, 827 (S.D. 1991) 

(quoting 13A J. Appleman Insurance Law and Practice § 7538 (1976)).

[¶27.] “The existence of the rights and obligations of parties to an insurance 

contact [sic] are determined by the language of the contract, which must be 

construed according to the plain meaning of its terms.” Biegler, 2001 S.D. 13, ¶ 20, 

621 N.W.2d at 598-99. Coverage L provided coverage for bodily injury or property 

damage covered by the Policy. The Personal Injury Endorsement began with the 
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statement that “this endorsement changes the policy.” The endorsement then 

extended the coverage to include personal injury as defined in the Policy, including 

injury for wrongful entry. The Personal Injury Endorsement specifically stated, 

“Coverage L is extended to pay for damages for which an ‘insured’ is liable by law 

because of ‘personal injury’.” It is undisputed that Coverage L included the 

Motorized Vehicle Exclusion. Therefore, even if the Okaton Fires were classified as 

a personal injury by wrongful entry, the Motorized Vehicle Exclusion applies to 

preclude coverage.

[¶28.] If an insurer attempts to apply a policy exclusion to avoid coverage, the 

burden rests with the insurer to prove such exclusion applies. Ass Kickin Ranch, 

LLC, 2012 S.D. 73, ¶ 9, 822 N.W.2d at 727. North Star has met this burden as the 

Personal Injury Endorsement is subject to the Motorized Vehicle Exclusion.

2. Whether the circuit court erred when it denied the Korzans’s 

motion for summary judgment and determined that North Star 

does not have a duty to defend or indemnify the Korzans.

[¶29.] As set forth above, North Star has established that the claims asserted 

against the Korzans clearly fall outside of the Policy’s coverage. North Star has no 

duty to defend or indemnify the Korzans. The circuit court did not err by granting 

summary judgment to North Star and denying the Korzans’s cross motion for 

summary judgment.

CONCLUSION

[¶30.] We hold that the Motorized Vehicle Exclusion, which applies to both 

Coverage L and the Personal Injury Endorsement, precludes coverage under the 

Policy. Accordingly, we affirm the circuit court’s grant of North Star’s motion for 

summary judgment.
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[¶31.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and 

WILBUR, Justices, concur.