Thursday, September 28, 2023
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No Help in Sad Death of Young Girl

(CN) - A man who accidentally ran over his girlfriend's daughter with a skid loader cannot get help from his insurance company in the ensuing wrongful-death lawsuit, the South Dakota Supreme Court ruled.

Marcus Degen and Tina Sellers met at work in 2006. Degen bought a home in 2007 and moved in with Sellers and her two daughters in 2007.

The girls called Degen "Dad" and he named them as beneficiaries in his retirement plan. But he never adopted the girls, and he and Sellers did not discuss getting engaged or married, according to the court ruling.

On Oct. 27, 2007, Degen was using a skid loader to level dirt on his property. Tina and her older daughter, Adrianna, came outside. Degen hit Adrianna with the skid loader and she was killed. She was 6 years old.

The couple stayed together for another year, but their difficulty in dealing with accident led them to break up.

Sellers then sued Degen for wrongful death.

Degen's insurance company, Hanson Farm Mutual Insurance Co., asked the trial court for declaratory judgment on its obligation to defend Degen.

The court ruled that the phrase "in 'your' care" in the insurance contract was ambiguous, but it denied Hanson Farm's motion for summary judgment, finding an issue of material fact existed on whether the girl was in his care.

This led to a trial, in which the court determined that she was in Degen's care, so Hanson Farm was not obligated to defend him under the policy's household exclusion.

Degen appealed, and so did Sellers, on behalf of her daughter's estate.

The South Dakota Supreme Court affirmed.

Justice Lori S. Wilbur, writing for the court, found that the household exclusion applied because the girl was in Degen's care.

"While not married or engaged, Marcus and Tina had planned to continue the joint living arrangement indefinitely. Marcus and Tina both testified that it was their plan to stay together for the rest of their lives. At the time of the accident, the couple and the girls had been living together for eight months. Following the accident, Tina and Zeraya [her younger daughter] continued to live with Marcus for a year, until the accident took its toll on Tina and Marcus's relationship," Wilbur wrote.

"Lastly, at the time of the accident, Adrianna was six years old and in good and mental and physical health. Because of her young age, Adrianna was not employed. Based on application of the eight-factor test to these undisputed fact, the trial court correctly concluded that Adrianna was in Marcus's care. Accordingly, Adrianna was therefore excluded from coverage under the household exclusion contained in the policy."

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