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State Farm Fire & Cas. Co. v. Harbert

State Farm Fire & Cas. Co. v. Harbert

Supreme Court of South Dakota

April 24, 2007, Argued; October 24, 2007, Opinion Filed

# 24366

Opinion

TUCKER, Circuit Judge

 [*P1]  [**230]   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.

 [*P2]  We affirm, finding (1) ] an invasion of privacy claim derived from conduct leading to the dissolution of a marriage is more properly  [***2] considered an alienation of affections claim; (2) alienation of affections is an intentional tort, falling within State Farm's intentional tort exclusion in the  [**231]  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

 [*P3]  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.

 [*P4]  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  [***3] a duty to defend and coverage.

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2007 SD 107 *; 741 N.W.2d 228 **; 2007 S.D. LEXIS 175 ***

STATE FARM FIRE & CASUALTY COMPANY, Plaintiff and Appellee, v. THOMAS G. HARBERT, Defendant and Appellant, and DAVID M. KALT, Defendant.

Prior History:  [***1] APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA. HONORABLE JACK R. VON WALD Judge.

Disposition: Affirmed.

CORE TERMS

alienation of affection, insured, intentional torts, coverage, affections, spouse, alienate, public policy, privacy, duty to defend, underlying action, bodily injury, decisions, summary judgment, specific intent, marriage, invasion of privacy, insurance coverage, no duty, invasion of rights, cause of action, personal injury, intentionally, dissolution, homeowner, injuries, falls

Family Law, Marital Duties & Rights, Causes of Action, Alienation of Affection, Insurance Law, Claim, Contract & Practice Issues, General Overview, Torts, Intentional Torts, Invasion of Privacy, Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Appropriateness, Burdens of Proof, Movant Persuasion & Proof, Nonmovant Persuasion & Proof, Appeals, Summary Judgment Review, Standards of Review, Marital Termination & Spousal Support, Business Torts, Fraud & Misrepresentation, Intentional Infliction of Emotional Distress, Trials, Jury Trials, Province of Court & Jury, Contracts Law, Contract Interpretation, Policy Interpretation, Plain Language, Evidence, Allocation, Obligations of Parties, Insurers, Allegations in Complaints, Business Insurance, Commercial General Liability Insurance, Duty to Defend, Coverage, Accidental Injuries, Exclusions, Intentional Acts