#29784, #29787-a-MES

2022 S.D. 36

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

NATIONWIDE AGRIBUSINESS

INSURANCE COMPANY, Plaintiff and Appellee,

v.

BURJES FITCH, CHERYL FITCH,

TRUETT FITCH, THEO FITCH,

FITCH FARMS, BC FITCH PARTNERSHIP, Defendants.

and

HUNTER PETERSON, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

HAAKON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE MARGO D. NORTHRUP

Judge

* * * *

MICHAEL J. MCGILL

Beresford, South Dakota

BRET C. MERKLE

Sioux Falls, South Dakota Attorneys for defendant

and appellant.

TERRA M. LARSON

MICHAEL F. SHAW of

May, Adam, Gerdes &

 Thompson, LLP

Pierre, South Dakota Attorneys for plaintiff

and appellee.

* * * *

ARGUED

APRIL 26, 2022

OPINION FILED 06/15/22
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SALTER, Justice

[¶1.] Nationwide Agribusiness Insurance Company (Nationwide) sought a 

declaratory judgment regarding its duty to indemnify and defend Burjes and Cheryl 

Fitch against a personal injury lawsuit stemming from an accident that occurred on 

their farm. Nationwide contends that it has no such duty under the terms of the 

Fitches’ farm liability insurance policy. The circuit court granted Nationwide’s 

motion for summary judgment, and the injured party has appealed, arguing that 

the insurance policy provides coverage for his claim against the Fitches. We affirm.

Facts and Procedural History

[¶2.] Burjes and Cheryl Fitch run a farm and cattle ranch in rural Haakon 

County. The operation is conducted with their two adult sons, Truett and Theo 

Fitch, and with the occasional assistance of their grandchildren. Nationwide issued 

a farm liability insurance policy (the Policy) for the Fitches’ operation, which 

provided liability coverage for the Policy period of February 20, 2017 through 

February 20, 2018.

[¶3.] On August 13, 2017, Truett called his nephew Hunter Peterson, the 

grandson of Burjes and Cheryl, and asked if he was available to come to the farm 

and help spray weeds in one of the cattle pastures. Hunter, who was seventeen at 

the time, agreed to help and met Truett at the farm. Truett informed Hunter that 

he was to use a John Deere Gator utility-terrain vehicle equipped with a spray tank 

and hand wand, which would allow him to drive through the pasture and spray 

weeds while seated in the Gator. Truett showed Hunter how to operate the spray 

wand and identified the weeds he wanted Hunter to spray. Beyond this 
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information, however, Hunter claims Truett did not provide him with any 

additional training or direction.

[¶4.] The pasture in which Truett told Hunter to spray contained a creek 

with banks that Hunter described as “rugged, uneven terrain.” At some point while 

spraying weeds along the creek, Hunter lost control of the Gator, which rolled over, 

trapping him underneath. The Gator pinned Hunter’s legs to the ground rendering 

him unable to move or summon help. Hunter remained trapped for several hours 

before he was found. The accident resulted in permanent injuries to his legs.

[¶5.] On August 3, 2020, Hunter filed a personal injury action against 

Burjes, Cheryl, Truett, and Theo Fitch. The complaint also named as defendants 

two business entities owned by the Fitches—Fitch Farms and BC Fitch Limited 

Partnership—and alleged various negligence theories, including failing to train and 

supervise Hunter, failing to warn him of the uneven terrain, and failing to provide 

him with emergency communication equipment.

[¶6.] Nationwide initially engaged counsel for the Fitches and provided a 

defense, but it issued a reservation of rights letter detailing its conclusion that 

coverage for Hunter’s injuries was excluded under the language of the Policy. 

Nationwide then commenced this declaratory judgment action to determine the 

extent of its obligation to defend or indemnify the Fitches.

[¶7.] Nationwide advanced three principal arguments in support of its 

denial of coverage. First, citing the Policy’s broad definition of “employee,” 

Nationwide claimed Hunter was an “employee” of the Fitches, a class of people 

whose claims are excluded under the Policy. Second, Nationwide also characterized 
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Hunter as a “farm employee,” a distinct designation that resulted in exclusion from 

medical payments coverage. Finally, Nationwide argued that Hunter was an 

“insured” and, therefore, unable to seek damages under the Policy’s liability 

coverage. Hunter resisted Nationwide’s arguments and asserted that even if the 

Policy excluded his claim against the Fitches, his injury could still be covered under 

a theory known as the concurrent cause doctrine.1

[¶8.] The circuit court was not persuaded and granted summary judgment 

in favor of Nationwide. Although the court determined that there were disputed 

material facts regarding Hunter’s status as an “employee,” “farm employee,” or 

“insured,” the court relied upon its own reading of the Policy to conclude that the 

terms of an attached “Recreational Vehicle Liability Coverage Endorsement” (the 

Recreational Vehicle Endorsement) operated to exclude coverage for the Gator when 

it is “used for farming purposes.”2 The court also declined to apply the concurrent 

cause doctrine, reasoning that the negligence claims, ostensibly covered under the 

Policy, could not be separated from the exclusion eliminating coverage for incidents 

involving the use of the Gator for farming purposes.

[¶9.] Hunter appeals, acknowledging the use of the Gator is excluded under 

the Policy but challenging the circuit court’s decision to not apply the concurrent 

1. As explained more fully below, the concurrent cause doctrine may permit 

insurance coverage, notwithstanding a valid exclusion, where the loss, or part 

of it, is also attributable to a covered peril.

2. The Gator was listed on the Policy’s schedule of recreational vehicles, and the 

parties have not litigated the question whether the Gator was, in fact, a 

recreational vehicle, either before the circuit court or on appeal. We make no 

separate determination in this regard.
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cause doctrine. Though they opposed Nationwide’s efforts to deny coverage before 

the circuit court, the Fitches have not participated in this appeal.3

Standard of Review

[¶10.] We review the grant or denial of a motion for summary judgment de 

novo. N. Star Mut. Ins. v. Korzan, 2015 S.D. 97, ¶ 12, 873 N.W.2d 57, 61. 

“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.’” Id. (quoting SDCL 15-6-56(c)).

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

reviewable de novo.” Id. ¶ 13, 873 N.W.2d at 61 (quoting Ass Kickin Ranch, LLC v. 

N. Star Mut. Ins. Co., 2012 S.D. 73, ¶ 7, 822 N.W.2d 724, 726). “[T]he issue of 

whether the duty to defend or indemnify exists under a policy is particularly 

amenable to summary judgment.” Grovenburg v. Homestead Ins. Co., 183 F.3d 883, 

885 (8th Cir. 1999) (citation omitted).

Analysis and Decision

[¶12.] As a legal backdrop for our discussion, we offer some basic and 

germane principles of insurance law. An insurance company has a duty to defend 

“if it is clear or arguably appears from the face of the pleadings in the action against 

the insured that the alleged claim, if true, falls within policy coverage.” Hawkeye3. Nationwide sought review of the circuit court’s determination that there were 

disputed issues of material fact surrounding Hunter’s status as an 

“employee” or “farm employee.” Given our disposition of the principal issue 

relating to the concurrent cause doctrine, however, it is unnecessary to reach 

the notice of review issues.
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Security Ins. Co. v. Clifford, 366 N.W.2d 489, 491 (S.D. 1985). In order to avoid a 

duty to defend, the insurer “must show the claim clearly falls outside of policy 

coverage.” Lowery Constr. & Concrete, LLC v. Owners Ins. Co., 2017 S.D. 53, ¶ 8, 

901 N.W.2d 481, 484. Although not directly implicated by the issues presented 

here, our cases recognize that the duty to defend is independent and far broader 

than the duty to indemnify judgments or settlements. N. Star Mut. Ins. Co. v. 

Kneen, 484 N.W.2d 908, 912 (S.D. 1992).

Concurrent Cause Doctrine

[¶13.] The parties agree that coverage for Hunter’s injury is excluded under 

the provisions of the Recreational Vehicle Endorsement. See Korzan, 2015 S.D. 97, 

¶ 26, 873 N.W.2d at 64 (citation omitted) (“Endorsements or riders on a policy 

become a part of the policy and must be construed with it.”). The Recreational 

Vehicle Endorsement states that “[t]his insurance, including any duty we have to 

defend ‘suits’, does not apply to any ‘recreational vehicle’: . . . [w]hile being used for 

any ‘business’ or ‘farming’ purposes[.]”4

[¶14.] Notwithstanding this exclusion, Hunter claims that his injury was the 

result of two independent and discernable causes—one a covered peril and the other 

not. Hunter concedes that at least a portion of his injury was the result of his use of 

the recreational vehicle and, therefore, excluded. However, he also contends that 

his injury was caused in part by the Fitches’ negligence. Invoking what is 

commonly referred to as the concurrent cause doctrine, Hunter argues his claims 

against the Fitches should be covered by the Policy.

4. It is undisputed that Hunter was using the Gator for “‘farming’ purposes[.]”
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[¶15.] Although courts differ in their precise formulations, the concurrent 

cause doctrine describes a theory used to obtain insurance coverage “where an 

injury was proximately caused by two events—even if one of these events was 

subject to an exclusion clause—if the differing allegations of causation are 

independent and distinct.” Am. Fam. Mut. Ins. Co. v. Parnell, 478 S.W.3d 489, 492 

(Mo. Ct. App. 2015) (internal quotations omitted). Where it applies, the rule 

generally states that “coverage should be permitted whenever two or more causes 

do appreciably contribute to the loss and at least one of the causes is a risk which is 

covered under the terms of the policy.” 7 Couch on Ins. (3d ed.) § 101:55; cf. Dallas 

Nat’l Ins. Co. v. Calitex Corp., 458 S.W.3d 210, 222 (Tex. App. 2015) (“Under the 

doctrine of concurrent causes, when covered and non-covered perils combine to 

create a loss, the insured is entitled to recover that portion of the damage caused 

solely by the covered peril.”).5

5. The concurrent cause doctrine is distinct from a related rule known as the 

“efficient proximate cause doctrine,” which contemplates a sequence of causal 

events rather than two independent causes occurring at once. A leading 

treatise on insurance describes the efficient proximate cause doctrine in the 

following terms:

The efficient proximate cause rule permits recovery under the 

insurance policy for a loss caused by a combination of a covered 

risk and an excluded risk only if the covered risk was the 

efficient proximate cause of the loss. The efficient proximate 

cause of the loss is the one that sets the other causes in motion 

that, in an unbroken sequence, produced the result for which 

recovery is sought.

7 Couch on Ins. (3d ed.) § 101:55 (footnote omitted). See also Cain v. Fortis 

Ins. Co., 2005 S.D. 39, ¶ 25, 694 N.W.2d 709, 714 (discussing the efficient 

proximate cause doctrine). The parties have not asserted that the efficient 

proximate cause doctrine is implicated here, which is generally reserved for 

application to first-party coverage. See 7 Couch on Ins. (3d ed.) § 101:56.
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[¶16.] Though we have stopped short of expressly adopting the concurrent 

cause doctrine, we have discussed its operation in previous cases. See, e.g., Lummel 

v. Nat’l Fire Ins. Co. of Hartford, Conn., 50 S.D. 502, 210 N.W. 739, 742 (1926);

Korzan, 2015 S.D. 97, ¶¶ 18–19, 873 N.W.2d at 62. Most notably, in Korzan, we 

explained that coverage is available under the doctrine only where the insured peril 

can be isolated and determined to be an independent cause of the loss. 2015 S.D. 

97, ¶¶ 16–17, 873 N.W.2d at 62. Where, however, the concurrent acts are not 

distinct from each other, but rather are “inextricably intertwined[,]” the concurrent 

cause doctrine will not assist a claimant. Id. ¶ 19, 873 N.W.2d at 63.

[¶17.] We further noted in Korzan that a court “may consider theoretical 

possibilities to explain how the accident could have occurred without [the excluded 

peril] in determining whether to apply the divisible, concurrent-cause doctrine. But 

if those possibilities are too remote, the doctrine will not be applied.” Id. (quoting 

Midwest Family Mut. Ins. Co. v. Schmitt, 651 N.W.2d 843, 849 (Minn. Ct. App. 

2002)).6

[¶18.] A decision by the Supreme Court of Vermont animates these principles 

under factual circumstances similar to those present here. See Mailhiot v. 

Nationwide Mut. Fire Ins. Co., 740 A.2d 360 (Vt. 1999). In Mailhiot, a thirteenyear-old boy was injured in an all-terrain vehicle (ATV) driven by his friend and 

6. Some jurisdictions also enforce “anti-concurrent cause provisions” in 

insurance policies, which preclude coverage even when the loss is caused in 

part by an insured peril. See Dale Joseph Gilsinger, Annotation, Validity, 

Construction, and Application of Anticoncurrent Causation (ACC) Clauses in 

Insurance Policies, 37 A.L.R. 6th 657 (2008). Here, however, Nationwide has 

not identified an anti-concurrent cause provision in the Policy.
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owned by the friend’s parents. Id. at 361. The injured boy’s parents sued the 

friend’s parents, who settled by assigning their rights under their homeowner’s 

insurance policy to the plaintiffs. Id.

[¶19.] The homeowner’s policy contained a coverage exclusion for “bodily 

injury or property damage arising out of the ownership, maintenance, or use of . . . a 

motor vehicle owned or operated by, or rented or loaned to an insured.” Id. 

However, the plaintiffs claimed their son’s injuries “were the result of two distinct 

causes: [the friend’s] negligence in operating the motor vehicle (a risk . . . clearly 

excluded under the policy) and his parents’ negligence in failing to adequately 

supervise the two children while they played.” Id. After examining rules similar to 

those we have set out above, the court held the concurrent cause doctrine was 

inapplicable because “there is no way to separate the . . . alleged negligence in 

supervising [the boys] from the vehicle-related conduct because the ATV was the 

only possible object of their negligence.” Id. at 362. The court concluded that “[i]t is 

impossible to separate the excluded conduct from any included conduct; therefore, 

the two causes are not independent of one another and cannot be said to be 

concurrent.” Id. at 363.

[¶20.] The same is true here, and we conclude that even if we were to adopt 

the concurrent cause doctrine, it would not apply because the alleged acts of 

independent negligence by the Fitches are part and parcel of Hunter’s use of the 

Gator. The two are, in the words of Korzan, “inextricably intertwined[.]” See 2015 

S.D. 97, ¶ 19, 873 N.W.2d at 63. Indeed, we cannot conceive of even a theoretical 

possibility that Hunter’s injuries could have occurred without his use of the Gator—
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an expressly excluded peril. Cf. State Farm Mut. Auto. Ins. Co. v. Partridge, 514 

P.2d 123, 129 (Cal. 1973) (holding that injuries arising from a gunshot inside of an 

insured’s vehicle, though excluded by the “automobile use” exclusion of a 

homeowner’s policy, were nevertheless covered because the insured’s allegedly 

negligent act of altering the firearm was an independent concurrent cause).

[¶21.] Under the circumstances, the circuit court did not err when it granted

Nationwide’s motion for summary judgment based on the language in the 

Recreational Vehicle Endorsement.7 We affirm.

[¶22.] JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN, 

Justices, concur.

7. Hunter also alleges the circuit court improperly engaged in fact-finding 

relating to the tort element of causation. We disagree. At issue here is the 

interpretation of an insurance contract and a common law insurance 

doctrine—legal questions which, when applied to the undisputed facts, are 

amenable to summary judgment. Unlike causation assessments in tort, “the 

doctrine of proximate cause as applied in insurance law bears no relationship 

with the determination of ‘culpability’ or the explanation for why the injury 

took place. Instead, insurance law employs the concept of proximate cause 

for purposes of determining whether the specific type of injury caused by the 

specific type of physical act or event was intended to be covered under the 

terms of the subject policy.” 7 Couch on Ins. (3d ed.) § 101:40. Here, the 

court did not determine the question of tort liability, and our decision 

likewise does not impact Hunter’s negligence action against the Fitches.