“GATOR” INJURY EXCLUDED FROM COVERAGE

On August 13, 2017, Hunter Peterson (Peterson) was injured while he assisted on the family farm. Peterson is the grandson of Burjes and Cheryl Fitch (the Fitches), who own and operate Fitch Farms.

At the time of the accident, Peterson, who was 17, was spraying for weeds in the cattle pasture. His uncle, the son of the Fitches, showed Peterson how to operate a Gator (popular brand of utility vehicle), a spray wand and then instructed him on what weeds to spray. Peterson stated that he was not provided any further directions.

The cattle pasture included a creek with banks and rugged, uneven terrain. While Peterson sprayed along the creek, he lost control of the Gator. It rolled over on top of him, pinned his legs, and prevented him from summoning help. He was trapped for several hours before being found. The accident resulted in permanent injuries to his legs.

In August 2020, Peterson filed a personal injury suit based on allegations that included failure to train and supervise, failure to warn of uneven terrain, and failure to provide emergency communication equipment.

The Fitches’ farm was insured by Nationwide Agribusiness Insurance Company (Nationwide). Nationwide initially engaged counsel for the Fitches and provided defense but issued a reservation of rights letter that advised coverage for Peterson's injuries was excluded from the policy. Nationwide then commenced the declaratory judgment action to determine the extent of its obligation to defend or indemnify the Fitches.

Nationwide provided three arguments to support the denial of coverage. First, Peterson was considered an employee and therefore excluded from the policy. Second, Peterson was considered a farm employee and excluded from the medical payments coverage. Lastly, Peterson was an insured and unable to seek damages under the policy's liability coverage.

Peterson argued that even if the policy excluded his claim against the Fitches, his injuries could still be covered under the concurrent cause doctrine theory. The concurrent cause doctrine may permit insurance coverage, apart from a valid exclusion, where the loss, or part of it, is also attributable to a covered peril.

However, the circuit court was not persuaded and granted summary judgment in favor of Nationwide. It declined to apply the concurrent cause doctrine. Instead, it reasoned that the negligence claims, allegedly covered under the policy, could not be separated from the exclusion that eliminated coverage for incidents that involved the use of the Gator for farming purposes. Peterson appealed.

The appeals court agreed with the parties that coverage for Peterson's injuries was excluded under the provisions of the Recreational Vehicle Endorsement. And it concluded that even if they adopted the concurrent cause doctrine, it would not apply because the alleged acts of independent negligence by the Fitches are part and parcel of Peterson's use of the Gator and that the two were intertwined. The court could not conceive of a possibility that Peterson's injuries could have occurred without his use of the Gator, which is an expressly excluded peril.

The appeals court found that the circuit court did not err when it granted Nationwide's motion for summary judgment. The appeals court affirmed.

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, Supreme Court Of The State Of South Dakota, #29784, #29787-a-MES, June 15, 2022