#24366-a-TUCKER, Circuit Judge 

2007 SD 107 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE FARM FIRE & CASUALTY Plaintiff and Appellee, 

COMPANY, 

 v. 

THOMAS G. HARBERT, Defendant and Appellant, 

 and 

DAVID M. KALT Defendant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FIFTH JUDICIAL CIRCUIT 

BROWN COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JACK R. VON WALD 

Judge 

* * * * 

SUSAN M. SABERS and 

WILLIAM P. FULLER of 

Fuller & Sabers, LLP Attorneys for plaintiff 

Sioux Falls, South Dakota and appellee. 

LEE SCHOENBECK of 

Schoenbeck Law Office Attorney for defendant 

Watertown, South Dakota and appellant. 

* * * * 

ARGUED 

APRIL 24, 2007 

OPINION FILED 10/24/07
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TUCKER, Circuit Judge 

[¶1.] State Farm Fire & Casualty (State Farm) brought this declaratory 

judgment action to determine if coverage or a duty to defend existed in an 

underlying action. In that case David Kalt (Kalt) brought suit against Thomas 

Harbert (Harbert) for alienation of the affections of his former spouse, Peggy Kalt 

(Peggy). Harbert sought personal liability coverage on the underlying action from 

State Farm under his personal liability umbrella policy. The trial court granted 

summary judgment in favor of State Farm, finding no coverage and, thereby, no 

duty to defend. Harbert appeals. 

[¶2.] We affirm, finding (1) an invasion of privacy claim derived from 

conduct leading to the dissolution of a marriage is more properly considered an 

alienation of affections claim; (2) alienation of affections is an intentional tort, 

falling within State Farm's intentional tort exclusion in the policy; and, (3) insuring 

an alienation of affections cause of action for an insured is contrary to the public 

policy of this State. 

FACTS AND PROCEDURE 

[¶3.] Kalt and Peggy were married on February 14, 1976. In May 2000 

Peggy was hired as clinic manager for the Aberdeen Association of Orthopedic 

Surgeons. At the clinic Peggy managed the practice of three physicians, one of 

whom was Harbert. In 2001 Harbert and Peggy began engaging in an extra-marital 

affair while Peggy was married to Kalt. Upon discovering the affair, Kalt filed for 

divorce against Peggy and initiated the underlying civil action against Harbert 

alleging alienation of affections. 
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[¶4.] At the time of the commencement of the underlying action, Harbert 

was insured by a policy from State Farm.1 Harbert tendered the lawsuit to State 

Farm, asserting that State Farm must defend and indemnify Harbert under his 

policy. State Farm defended the underlying action pursuant to a reservation of 

rights and commenced a declaratory judgment action to determine if Harbert's 

policy provided a duty to defend and coverage. 

[¶5.] The policy's coverage for personal liability provides, "[i]f you are legally 

obligated to pay damages for a loss, we will pay your net loss minus the retained 

limit." (emphasis in original). The definition of "loss" appears in the policy 

endorsement, which supplements the parent policy. "Loss" is defined as: 

6. "Loss" means: 

a. an accident, including injurious exposure to 

conditions, which results in bodily injury or 

property damage during the policy period. 

Repeated or continuous exposure to the same 

general conditions is considered to be one loss; or 

b. the commission of an offense, or series of similar 

or related offenses, which result in personal injury

during the policy period. 

 

(emphasis in original). The definition of "bodily injury" and the offenses causing 

"personal injury" are also found in the policy endorsement: 

17. "bodily injury" means physical injury, sickness, 

disease, emotional distress or mental injury to a person. 

This includes required care, loss of services and death 

resulting therefrom. 

1. Harbert purchased a State Farm Fire & Casualty personal liability umbrella 

policy that became effective July 7, 2001. Kalt initiated the underlying action 

named Kalt v. Harbert on January 14, 2004. 
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9. "personal injury" means injury caused by one or more of 

the following offenses: 

 

a. false arrest, false imprisonment, wrongful 

eviction, wrongful detention, malicious prosecution; 

b. libel, slander, defamation of character or 

invasion of rights of privacy. 

[¶6.] The policy provides that when the asserted claim is covered by the 

policy, State Farm will defend the insured in the suit, and pay the expenses 

incurred, costs taxed, and pre- and post-judgment interest accrued. However, the 

policy lists relevant exclusions to this coverage, including the intentional tort 

exclusion. The intentional tort exclusion specifies that State Farm will not provide 

coverage: 

2. for bodily injury or property damage: 

 a. which is either expected or intended by you; or 

 b. to any person or property which is the result of 

 your willful and malicious act, no matter at whom 

 the act was directed. 

16. for personal injury when you act with specific intent to 

cause or harm injury. 

(emphasis in original). 

[¶7.] State Farm and Harbert filed motions for summary judgment. As a 

result, Kalt amended his initial complaint against Harbert in the underlying action 

to include a cause of action for invasion of rights of privacy.2 The amended 

complaint alleged Kalt had been "injured in his right to privacy in that, among 

2. Kalt's amended complaint added a claim entitled "violation of personal 

rights." Invasion of rights of privacy claim is specifically listed under the 

policy as a covered personal injury offense. 
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other things Defendant gained private and personal information about Plaintiff, his 

family, and his finances which has caused Plaintiff to suffer great distress of mind, 

body and estate and damages." 

[¶8.] In support of his motion for summary judgment, Harbert argued 

coverage existed and State Farm had a duty to defend the underlying action 

pursuant to (1) the personal injury coverage as an invasion of rights of privacy 

offense; or (2) the bodily injury coverage provision as an "accident" resulting in 

bodily injury. State Farm argued that no coverage existed under the policy because 

of the intentional tort exclusion. 

[¶9.] The trial court granted summary judgment in favor of State Farm, 

finding no coverage and, thereby, no duty to defend Kalt's suit against Harbert for 

alienation of affections and invasion of rights of privacy. Specifically, the trial court 

held that a claim for alienation of affections is an intentional tort under South 

Dakota law, and, as such, is not covered under the policy. In addition, the trial 

court found Kalt's invasion of privacy claim against Harbert was essentially a claim 

for alienation of affections.3 

[¶10.] Harbert appeals from the trial court's order granting State Farm's 

motion for summary judgment. We review the following issues on appeal: 

Is Kalt's invasion of privacy claim, derived from conduct 

resulting in the dissolution of a marriage, more properly 

considered an alienation of affections claim? 

3. The trial court concluded, "[T]here is no coverage under the 'personal injury' 

portion that would let you [Kalt] basically claim the same injuries for 

alienation of affections under a different name of invasion of rights to 

privacy." 
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Does the alienation of affections claim fall within State 

Farm's intentional tort exclusion in the policy?4

Does public policy of South Dakota preclude insurance 

coverage for the intentional tort of alienation of 

affections? 

STANDARD OF REVIEW 

[¶11.] This matter is before the Court on appeal from a grant of summary 

judgment. Pursuant to South Dakota law, summary judgment "shall be rendered 

forthwith 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). All reasonable inferences drawn from the facts must be 

viewed in favor of the nonmoving party and reasonable doubts should be resolved 

against the moving party. Wilson v. Great Northern Ry. Co., 83 SD 207, 212, 157 

NW2d 19, 21 (1968). The burden is placed on the moving party to show an absence 

of any genuine issue of material fact and an entitlement to judgment as a matter of 

law. However, the party opposing a motion for summary judgment must be diligent 

in resisting the motion, and mere general allegations and denials which do not set 

forth specific facts will not prevent issuance of a judgment. Butler Machinery Co. v. 

Morris Const. Co., 2004 SD 81, ¶ 5, 682 NW2d 773, 776. Our task on appeal is to 

determine whether a genuine issue of material fact exists and whether the law was 

correctly applied in the lower court. Weatherwax v. Hiland Potato Chip Co., 372 

NW2d 118, 120 (SD 1985); Ruple v. Weinaug, 328 NW2d 857, 859-60 (SD 1983). 

4. This Court will examine coverage under Harbert's umbrella policy from State 

Farm. The parties agree Harbert's homeowner's policy from State Farm 

provides no coverage for the underlying claim and is not at issue. 
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ISSUE ONE 

[¶12.] Is Kalt's invasion of privacy claim, derived from conduct 

resulting in the dissolution of a marriage, more properly considered an 

alienation of affections claim? 

[¶13.] Harbert asserts State Farm has a duty to defend Kalt's action for 

invasion of rights of privacy because it is specifically covered within the policy's 

definition of "personal injury."5 Harbert emphasizes that because "invasion of 

rights of privacy" is not defined in the policy, this Court should adopt a reasonable 

interpretation of the policy language which includes protection for claims that an 

insured violated protected marital interests. We find this argument unpersuasive. 

[¶14.] In Pickering v. Pickering, 434 NW2d 758, 762 (SD 1989), this Court 

declined to recognize a "repackaged cause of action that already has been 

specifically pleaded." We refused as a matter of public policy to recognize actions 

for intentional infliction of emotional distress, fraud and deceit, negligent 

misrepresentation, and tortious interference with a marital contract when such 

claims were "predicated on conduct which leads to the dissolution of a marriage." 

Id. at 761. In Pickering we concluded that any wrong that occurred as a result of 

the defendant's alleged fraud and deceit in the context of a marriage is not one that 

can be redressed in a tort action because public policy would not be served by 

authorizing an award of damages under the circumstances. Id. at 761-62. By 

definition, a civil wrong is given a remedy in the judicial system as a "tort" action 

for damages. However, the judicial system cannot remedy all wrongs, particularly 

5. The policy's definition of "personal injury" lists several covered intentional 

torts (called "offenses") which State Farm agrees to provide personal liability 

insurance coverage. 
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those wrongs which are beyond any effective legal remedy and practical 

administration of the law. Id. at 761. For example, wrongs such as "betrayal, 

brutal words, and heartless disregard of feelings of others" are in themselves 

outrageous conduct and "to attempt to correct such wrongs or give relief from their 

effects 'may do more damage than if the law leaves them alone.'" Id. at 761. The 

law of South Dakota provides a remedy for these types of claims in the form of an 

action against the paramour for alienation of affections. Id. In accordance with the 

public policy of South Dakota, any wrong which occurred as a result of the alleged 

privacy violation by Harbert in the context of Peggy and Kalt's marriage is not one 

that can be redressed in an action for invasion of rights of privacy. 

[¶15.] By amending his complaint to include invasion of privacy, Kalt was, in 

essence, attempting to repackage his alienation of affections claim as an invasion of 

privacy claim to create insurance coverage for Harbert in the underlying action. 

The privacy claim stemmed from the same underlying injury as the claim for 

alienation of affections: allegedly the intentionally harmful, voluntary adulterous 

conduct leading to the dissolution of Kalt's marriage. Thus, it cannot be said that 

the privacy claim is separate or distinct from the alienation of affections claim. 

Kalt's initial complaint asserted a cause of action against Harbert for alienation of 

the affections of his former spouse, Peggy.6 Under South Dakota law, Kalt's remedy 

6. Kalt's initial complaint claimed, among other things, "The Defendant, 

intending to injure the Plaintiff and to deprive the Plaintiff of his wife and of 

his wife's aid, support, protection, comfort, society and fidelity toward the 

Plaintiff, wickedly, willfully, and maliciously sought to prejudice the mind of 

Peggy A. Kalt against the Plaintiff and to alienate her affection from the 

Plaintiff." 
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is an action for alienation of affections. 

ISSUE TWO 

[¶16.] Does the alienation of affections claim fall within State Farm's 

intentional tort exclusion in the policy? 

[¶17.] The interpretation of a contract is a question of law. State Farm Mut. 

Auto Ins. Co. v. Vostad, 520 NW2d 273, 257 (SD 1994); Yarcheski v. Reiner, 2003 

SD 108, ¶ 24, 669 NW2d 487, 495. "The existence of the rights and obligations of 

parties to an insurance contract are determined by the language of the contract, 

which must be construed according to the plain meaning of its terms." Bielger v. 

American Family Mutual Ins. Co., 2001 SD 13, ¶ 20, 621 NW2d 592, 598-599. 

Thus, in deciphering the language of the insurance contract, the court must employ 

a plain meaning approach. Id. 

[¶18.] Under South Dakota law, a liability insurer's duty to defend extends to 

any third party claim asserted against an insured that arguably falls within the 

policy's coverages. If disputed, the issue of whether an insurer has a duty to defend 

is determined by the third party's complaint and "other evidence of record." North 

Star Mut. Ins. Co. v. Kneen, 484 NW2d 908, 912 (SD 1992). The insurer bears the 

burden of showing it has no duty to defend the insured. Id. This burden is satisfied 

when the insurer shows the claim "clearly falls outside of policy coverage." State 

Farm Mutual Auto. Ins. Co. v. Wertz, 540 NW2d 636, 638 (SD 1995) (emphasis in 

original). See also City of Fort Pierre v. United Fire & Cas. Co., 463 NW2d 845, 847 

(SD 1990); Bayer v. Employers Reinsurance Corp., 383 NW2d 858, 861 (SD 1986); 

Hawkeye-Security Ins. Co. v. Clifford, 366 NW2d 489, 492 (SD 1985). If doubt 

exists as to whether the insured's claim falls within the policy coverage after 
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considering the complaint and record evidence, "such doubts must be resolved in 

favor of the insured." City of Fort Pierre, 463 NW2d at 847. 

[¶19.] The policy issued by State Farm does not provide coverage for the 

underlying tort action of alienation of affections. Such an intentional tort claim 

falls within the intentional tort exclusion of the policy and releases State Farm from 

a duty to defend the underlying claim against Harbert. 

[¶20.] Under the policy language, State Farm agreed to defend and indemnify 

Harbert where Harbert was legally obligated to pay for a "loss." A "loss" under the 

policy is defined as "an accident . . . which results in bodily injury."7 The policy does 

not define the word "accident." The intentional tort exclusion provides that injuries 

"expected or intended by" Harbert, or injuries that were the "result of [Harbert's] 

willful and malicious acts" would not be covered. Kalt's initial complaint alleged 

Harbert intentionally injured Kalt and deprived him "of his wife and of his wife's 

aid, support, protection, comfort, society and fidelity," and "wickedly, willfully, and 

maliciously sought to prejudice the mind of Peggy A. Kalt" against Kalt and "to 

alienate her affections." State Farm asserts this alleged bodily injury8 is excluded 

from coverage under the "expected or intended" injury exclusion and is not the 

result of an "accident." We agree. 

7. Because we find Kalt's invasion of rights of privacy claim to be unavailable 

and without merit, the "personal injury" coverage analysis is not relevant and 

not at issue. 

8. State Farm concedes that Kalt's complaint alleges conduct resulting in 

"bodily injury" under the definition in the policy. 
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[¶21.] To determine whether Kalt's alleged bodily injury is the result of an 

"accident" under the policy, we must review the elements of the alienation of 

affections tort. There are discrepancies between early South Dakota Supreme 

Court decisions and those decided in recent years regarding the intent element of 

the alienation of affections tort. In the earlier decisions, "actual intent to alienate 

the affections of the spouse of another need not necessarily be shown if defendant's 

conduct is inherently wrong and tends to, and does, have that effect." Pearsall v. 

Colgan, 76 SD 241, 244, 76 NW2d 620, 621 (1956). See also McAlpin v. Baird, 40 

SD 180, 166 NW 639, 640 (1918) (stating "[t]he allegation that the defendant 

debauched and carnally knew plaintiff's wife states a cause of action for damages. 

It is not necessary to allege an intent on defendant's part to injure the plaintiff."). 

These early cases required a relaxed general intent to alienate the affections of 

another's spouse. In addition, these cases required the defendant's conduct to "have 

been calculated from the outset" of the affair to cause the spouse's loss of affections 

for the plaintiff. Pankratz v. Pankratz, 401 NW2d 543, 548 (SD 1987). 

[¶22.] In contrast, under the modern decisions of this Court, specific intent to 

alienate one spouse's affections from the other spouse is required to sustain an 

action for alienation of affections. See Veeder v. Kennedy, 1999 SD 23, ¶ 39, n14, 

589 NW2d 610, 619 (finding one who "purposefully alienates" one spouse's affections 

from the other spouse is liable for the tort of alienation of affections, and stating 

that "[n]ot only must the actor have caused a diminution of one spouse's affection 

for the other by acts, but the acts must have been done for the very purpose of 

accomplishing this result."); Pankratz, 401 NW2d at 549 (providing "[t]he acts 
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which lead to the loss of affection must be wrongful and intentional, calculated to 

entice the affections of one spouse away from the other" and stating "[t]he gravamen 

of an action for alienation of affections is enticement. It is based on an intentional 

tort, not negligence.") (emphasis in original). 

[¶23.] Additionally, under the modern decisions of this Court, the specific 

intent to alienate affections is not required to be present "from the outset" of the 

affair. Veeder, 1999 SD 23, at ¶ 38, n13, 589 NW2d at 619. Rather, the specific 

intent to alienate one spouse's affections from the other spouse may develop at any 

point during the adulterous relationship. 

[¶24.] To clarify the elements of an alienation of affections action, we restate 

them here. The elements of alienation of affections are: 

1. Wrongful conduct by the defendant with specific 

intent to alienate one spouse's affections from the 

other spouse (such intent may develop at any point 

during the adulterous relationship); 

2. Loss of affection or consortium; and 

3. A causal connection between such intentional 

conduct and loss. 

Pickering, 434 NW2d at 762-763; Veeder, 1999 SD 23 at ¶ 39, n14, 589 NW2d at 

619. 

[¶25.] The elements of this alienation of affections action fall within the 

intentional tort exclusion of the policy. Therefore, there is no coverage and no duty 

to defend. 

[¶26.] After examining the elements of alienation of affections, we also 

consider the history of decisions from this Court construing unintended results of 
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intentional torts in insurance policies. A line of divided decisions from this Court 

has created confusion in determining policy coverage for intentional tort exclusions. 

Some decisions have found, based on the public policy of this State, that intentional 

torts and their resulting injuries are not "accidents" under insurance policies, 

thereby releasing the insurer's duty to defend the intentional tort claims asserted 

against its insured.9 Other decisions have found there may be a duty for an insurer 

to defend its insured when the insured is being sued for an intentional tort that 

results in an unintended injury.10 

[¶27.] The division of our recent decisions on this issue was recognized by the 

Eighth Circuit Court of Appeals in Pins, 476 F3d 581 (8th Cir 2007).11 There, the 

9. See Klatt v. Continental Ins. Co., 409 NW2d 366 (SD 1987) (finding that the 

intended consequences of an intentional act are not an "accident" for 

purposes of insurance contract interpretation); Taylor v. Imperial Cas. & 

Indem. Co., 82 SD 298, 144 NW2d 856 (1966); Corner Const. Co. v. United 

States Fidelity, 2002 SD 5, 638 NW2d 887; See also Pins v. State Farm Fire 

and Casualty Company, 476 F3d 581 (8th Cir 2007); SDCL § 53-9-3 

(providing that "[a]ll contracts which have for their object, directly or 

indirectly, to exempt anyone from responsibility for his own fraud or willful 

injury to the person or property of another or from violation of law whether 

willful or negligent are against the policy of the law."). 

10. See Stoebner v. SD Farm Bureau Mut. Ins. Co., 1999 SD 106, ¶ 12, 598 

NW2d 557, 559 (providing that "[m]ost, if not all, negligently inflicted injuries 

or damages result from intentional acts of some kind, but coverage still exists 

under normal [insurance] policy provisions if there was no intention to cause, 

by the commission of the acts, the resulting injury or damages."); Wertz, 540 

NW2d at 642. 

11. While the instant case was pending appeal, Pins overruled the district court, 

which concluded State Farm had a duty to defend Pins' alienation of 

affections claim because Pins could have been found liable for alienation of 

affections even if he did not intend to break up a marriage. Pins, 476 F3d at 

584. According to the Court of Appeals, applying South Dakota law, the 

district court incorrectly relied upon the principle that there may be a duty to 

defend when an intentional tort results in an unintended injury. Id. 
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Eighth Circuit stated, 

In recent years, opinions in badly-divided decisions of the 

Supreme Court of South Dakota have declared that there 

may be a duty to defend when an intentional tort results 

in an unintended injury, such as when a punch in the face 

results in a broken ankle. . . . We are less confident than 

the district court that a majority of the Supreme Court of 

South Dakota has adopted this principle. 

Pins, 476 F3d at 583-84. 

[¶28.] In Tri-State Co. of Minnesota v. Bollinger, 476 NW2d 697 (SD 1991), a 

homeowner punched a guest in the face and an altercation ensued between the two 

parties. As a result, the guest suffered a broken ankle and brought a personal 

injury suit against the homeowner for assault and battery. The homeowner sought 

coverage under his homeowner's insurance policy and tendered defense to his 

insurer. The homeowner's insurer declined to defend on grounds that it had no duty 

to defend or indemnify insured because such intentional conduct was excluded from 

the policy. However, this Court found that the insurer had a duty to defend stating 

that it is not the intentional act of the insured which must be expected or intended 

for the intentional act exclusion to apply; instead, a court must consider whether 

the resulting injuries were intended. Id. at 701. This Court noted that breaking an 

ankle was not ordinarily an intended consequence of a fist fight inside a home. 

However, it was a question for a jury to sort out under proper instructions. 

[¶29.] While one could argue that bodily injury of the type in Bollinger is an 

expected consequence of being punched, that case can be distinguished from an 

alienation of affections claim. Here, as in all alienation of affections claims, the 
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gravamen of the tort is the intent to achieve the result; specifically, the intent to 

cause alienation of the spouse's affections away from the other spouse. 

[¶30.] Harbert attempts to use the Bollinger rationale to support his 

argument for coverage, asserting that he intended the act, but not the result. He 

emphasizes that although he intended to have sexual relations with Peggy, he did 

not intend to alienate her affections from her husband, Kalt, and thus coverage 

exists under the policy. We disagree with this reasoning. We find the Bollinger

rationale does not apply, because the tort of alienation of affections requires specific 

intent to cause the resulting injury of alienating a spouse's affections away from the 

other spouse.

[¶31.] Accordingly, an underlying action for alienation of affections cannot be 

supported by facts that fit within the definition of an "accident" of an insurance 

policy, because an alienation claim necessarily requires the specific intent to entice 

the affections of one spouse away from the other.12 In the underlying action, Kalt 

must prove that Harbert "expected or intended" a "loss" to Kalt from his adulterous 

conduct, rendering such "loss" outside the scope of an "accident." At the heart of an 

alienation of affections tort is the specific intent to alienate the affections of one 

spouse away from the other spouse. Therefore, the resulting injury is always 

"expected or intended." As a result, State Farm has no duty to defend Kalt's 

alienation of affections claim because it falls within the intentional tort exclusion as 

an expected or intended loss and is, therefore, not covered by Harbert's policy. 

12. See Pins, 476 F3d 581 (8th Cir 2007) (providing that because alienation of 

affections is an intentional tort requiring the insured to intend to cause 

specific injuries, no coverage existed under the policy). 
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ISSUE THREE 

[¶32.] Does the public policy of South Dakota preclude insurance 

coverage for the intentional tort of alienation of affections? 

[¶33.] As a general rule, public policy prohibits extending insurance coverage 

to individuals who commit intentional tortious conduct. State Farm Mut. Auto. Ins. 

Co. v. Kostaneski, 2004 SD 114, ¶ 22, 688 NW2d 410, 415. See also Wertz, 540 

NW2d at 640 (stating that "[p]ublic policy prohibits extending insurance coverage to 

an individual who intentionally harms others."); City of Fort Pierre, 463 NW2d at 

848-49 (quoting Ambassador Ins. Co. v. Montes, 76 NJ 477, 483, 388 A2d 603, 606 

(1978) which states "[w]ere a person able to insure himself against economic 

consequences of his intentional wrongdoing, the deterrence attributable to financial 

responsibility would be missing."); Bollinger, 476 NW2d 697 (SD 1991) (stating that 

if insured, through intentional acts, consciously controls risks covered by the policy, 

the central concept of insurance is violated); SDCL 53-9-3 (providing that contracts 

which have the purpose of exempting anyone from responsibility for his own fraud, 

willful injury, or violation of law are against public policy).

[¶34.] Under South Dakota law, "public policy prohibits extending insurance 

coverage to an individual who intentionally harms others." Wertz, 540 NW2d at 640 

(holding a driver who intentionally drives a car into truck with intention of injuring 

passenger is not allowed to inflict deliberate harm with financial impunity). As 

mentioned earlier, this principle was examined by the Eighth Circuit Court of 

Appeals in Pins, 476 F3d 581 (8th Cir 2007). There, the court found no insurance 

coverage for the intentional tort of alienation of affections under South Dakota law. 

The Eighth Circuit ruled in line with South Dakota's public policy and found that 
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because alienation of affections is an intentional tort requiring the insured to intend 

to cause specific injuries, no coverage existed under the policy. 

[¶35.] Pursuant to this State's public policy, an individual is not allowed to 

impute financial responsibility to his insurance company for his own intentional 

torts. Such responsibility stays with the insured. Here, Harbert allegedly 

committed a wrong by enticing Peggy's affections away from Kalt. Harbert is 

attempting to shift responsibility for these actions to his insurer, State Farm. The 

alienation of affections is conduct that should not be encouraged by the protection of 

financial impunity. To permit such "affair insurance" would defeat the purpose of 

punishing and deterring individuals for their own tortious acts. In accordance, we 

hold that insuring the tort of alienation of affections is contrary to South Dakota 

public policy. 

[¶36.] Affirmed. 

[¶37.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and 

MEIERHENRY, Justices, concur. 

[¶38.] TUCKER, Circuit Judge, for SABERS, Justice, disqualified.