#27438, #27446-a-SLZ
2016 S.D. 9

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA
                                 ****
DAWN GORES, individually and
as conservator of HALEY GORES,
and HALEY GORES individually,             Plaintiffs and Appellants,

     v.

LISA A. MILLER, M.D., and YANKTON
SURGICAL ASSOCIATES, P.C.,                Defendants and Appellees.
                                 ****
                 APPEAL FROM THE CIRCUIT COURT OF
                    THE FIRST JUDICIAL CIRCUIT
                  YANKTON COUNTY, SOUTH DAKOTA
                                 ****
                 THE HONORABLE CHERYLE W. GERING
                              Judge
                                 ****

TIMOTHY L. JAMES of
James & Larson Law
Yankton, South Dakota

     and

DAN RASMUS of
Hovland & Rasmus, PLLC
Edina, Minnesota                          Attorneys for plaintiffs
                                          and appellants.


MELISSA C. HINTON of
Evans Haigh & Hinton LLP
Sioux Falls, South Dakota                 Attorneys for defendants
                                          and appellees.

                                 ****
                                          CONSIDERED ON BRIEFS
                                          ON NOVEMBER 30, 2015

                                          OPINION FILED 02/03/16
#27438, #27446

ZINTER, Justice

[¶1.]        A minor child sustained physical injuries in an auto accident. The

minor and her parent–conservator signed a general release in exchange for a

settlement with the driver, insured, and insurer of the auto. The release did not

specifically name the treating physician or clinic, but it released all other claims

that might develop from the accident. The minor and her parent subsequently filed

a malpractice suit against the clinic and the physician who treated the injuries the

minor sustained in the accident. The circuit court ruled that the release discharged

the malpractice claims, and the court granted summary judgment in favor of the

medical providers. The parent and minor appeal. We affirm.

                            Facts and Procedural History

[¶2.]        On July 28, 2010, fifteen-year-old Haley Gores was a passenger in a

van driven by Steven Smith. Smith lost control of the van, and Haley suffered

lacerations to her right arm. Dr. Lisa Miller debrided Haley’s wounds at the

hospital. The next day, Dr. Miller performed an excisional debridement and closed

the lacerations. On August 13, Dr. Miller performed a second excisional

debridement. Haley continued to see Dr. Miller for her care until October 21, 2010,

when Dr. Miller determined that Haley’s arm had completely healed. Haley’s last

contact with Dr. Miller was in December 2010.

[¶3.]        In March 2011, a court appointed Haley’s mother, Dawn Gores, as

Haley’s conservator for the purpose of prosecuting and settling claims arising from

the accident. In April 2011, Dawn asked the conservator court to approve a

settlement with Smith’s insurer for the policy limit of $25,000 in exchange for Dawn

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and Haley’s general release. 1 The conservator court approved the settlement, and

Dawn and Haley (Appellants) executed the release. 2

[¶4.]         In April 2013, Haley and Dawn (in her individual capacity and as

Haley’s conservator) sued Dr. Miller and Yankton Surgical Associates (YSA), Dr.

Miller’s practice group. Appellants claimed that Haley received substandard

medical care for the arm injury Haley suffered in the auto accident. More

specifically, they alleged that Haley would have healed faster and required less

treatment if Dr. Miller had done a skin graft and properly instructed Haley on how

to dress her wounds.

[¶5.]         Dr. Miller and YSA moved for summary judgment, contending that the

release discharged Appellants’ claims against them. Appellants moved for

additional time to conduct discovery to ascertain the intent of the parties to the

release, including the intent of the judge who approved the settlement. The

discovery motion was denied. The court determined that Appellants signed a

general release that was unambiguous. The court further determined that because

the release was unambiguous, the release expressed the intent of the parties.

Based on the language of the release, the court concluded that the malpractice

claims were discharged as a matter of contract, and the court granted summary

judgment in favor of Dr. Miller and YSA.




1.      Steven Smith was insured under his mother’s policy.

2.      The court also approved a settlement with Appellants’ insurance company for
        its $100,000-underinsured-motorist limit, less the liability limit paid by
        Smith’s carrier.

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[¶6.]        Appellants raise four issues on appeal: (1) whether the release was

intended to discharge Appellants’ claims against Dr. Miller and YSA; (2) whether

Dr. Miller and YSA were “independent tortfeasors,” who were beyond the scope of

the release; (3) whether the circuit court should have allowed additional time for

discovery to ascertain the intent of the parties; and (4) whether res judicata barred

the release defense.

                                       Decision

[¶7.]        In their first issue, Appellants argue that the release was not intended

to discharge the claims against Dr. Miller and YSA. Appellants point out that the

release did not mention Dr. Miller and YSA and that Appellants were not fully

compensated through the settlement. In their second issue, Appellants argue that

the release did not apply to the medical providers because they were “independent

tortfeasors” who caused injuries in addition to those caused by Smith. Because the

scope of the release often controls the questions raised in these issues, the first two

issues are discussed together.

[¶8.]        A release is a contract, and if a contract is unambiguous, we rely on

the language of the contract to ascertain and give effect to the parties’ intent.

Fenske Media Corp. v. Banta Corp., 2004 S.D. 23, ¶ 8, 676 N.W.2d 390, 393. If the

language is unambiguous, neither the releasor’s subjective intent nor the failure to

obtain full satisfaction in the settlement governs: the terms of the release control.

Flynn v. Lockhart, 526 N.W.2d 743, 746 (S.D. 1995); see also Aggregate Constr., Inc.

v. Aaron Swan & Assocs., Inc., 2015 S.D. 79, ¶ 13, 871 N.W.2d 508, 512 (concluding

that broad language of a release controlled even though the defendants were


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different entities subject to different claims). Contract interpretation is a legal

question we review de novo. Tri-City Assocs., L.P. v. Belmont, Inc., 2014 S.D. 23,

¶ 9, 845 N.W.2d 911, 915.

[¶9.]        The release in this case provided in relevant part:

             [T]he undersigned hereby releases, and forever discharges Lori
             Smith and her heirs, executors, administrators, agents, insurers,
             and assigns and all other persons, firms or corporations liable or
             who might be claimed to be liable, none of whom admit any
             liability to the undersigned but all expressly deny any liability,
             from any and all claims, demands, damages, actions, causes of
             action or suits of any kind or nature whatsoever, and particularly
             on account of all injuries, known and unknown, both to person
             and property, which have resulted or may in the future develop
             from an incident which occurred on or about the 28th Day of
             July, 2010, at or near Springfield, South Dakota . . . .
             The undersigned hereby represents that the terms of this
             settlement have been completely read and are fully understood
             and voluntarily accepted for the purpose of making a full and
             final compromise adjustment and settlement of any and all
             claims, disputed or otherwise, on account of the injuries and
             damages above mentioned, and for the express purpose of
             precluding forever any further or additional claims arising out of
             the aforesaid accident . . . .

(Emphasis added.)

[¶10.]       This language is broad and unambiguous. Under it, Appellants

released all “additional claims” of “any kind or nature whatsoever” against “all

other persons” for “all injuries” that had or might “result from,” “develop” from, or

“arise out of” the accident. Applying this language, we note that Dr. Miller treated

Haley for the injuries she sustained in the accident, and the damages Appellants

seek from this malpractice claim are for a suboptimal recovery from those same

injuries. Because the alleged malpractice damages developed from the injuries

Haley sustained in the accident, the language of the release covers the malpractice


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#27438, #27446

claim. We have previously held that this type of broad language in general releases

discharges additional claims against third parties not named. See Aggregate

Constr. Inc., 2015 S.D. 79, ¶ 13, 871 N.W.2d at 512; Flynn, 526 N.W.2d at 746. 3

[¶11.]         Appellants, however, contend that the release does not apply because

the medical providers were “independent tortfeasors” who caused injuries separate

and distinct from those inflicted by the auto accident. This contention fails to

acknowledge that in actions for malpractice involving treatment of an injury caused

by a prior wrongdoer, the act of the prior wrongdoer is a legal cause of the damages

flowing from subsequent, negligent medical treatment. See Restatement (Second) of

Torts § 457 (Am. Law Inst. 1965)4; W. Page Keeton et al., Prosser & Keeton on the



3.       Appellants argue that Flynn is inapplicable because they contend that unlike
         Flynn, the release in this case does not specifically exonerate Dr. Miller and
         YSA. See Flynn, 526 N.W.2d at 746. Appellants also point out that the
         release in this case did not provide for the discharge of joint tortfeasors. Id.
         We agree that Flynn involved the specific exoneration of another “joint
         tortfeasor.” We stated that if a release specifically provides for a release of
         other unnamed joint tortfeasors, the unnamed joint tortfeasor is released. Id.
         We reasoned that the release in that case specifically applied to joint
         tortfeasors, the defendant was an unnamed joint tortfeasor, and therefore the
         contractual language of the release provided for the discharge of the
         unnamed tortfeasor. Id.; SDCL 15-8-17. Our reasoning was based on the
         language of the contract that included the release of other identifiable claims.
         That reasoning is applicable in the threshold question involving the scope of
         Appellants’ release whether the case involves joint tortfeasors or any other
         identifiable claims.

4.       A Restatement illustration demonstrates the rule:
               A’s negligence causes B serious harm. B is taken to a hospital.
               The surgeon improperly diagnoses his case and performs an
               unnecessary operation, or, after proper diagnosis, performs a
               necessary operation carelessly. A’s negligence is a legal cause of
               the additional harm which B sustains.
         Restatement (Second) of Torts § 457 illus. 1.

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#27438, #27446

Law of Torts § 47, at 309 (5th ed. 1984). Therefore, even if Dr. Miller and YSA are

“independent tortfeasors” who caused distinct injuries—a question we do not decide

in this case—the law regards all of these injuries as causally related to the accident

See Restatement (Second) of Torts § 457 cmt. a. 5 Because Smith is responsible for

both injuries as a matter of law, 6 Appellants have no argument that their claim

against Dr. Miller and YSA is not causally related to the auto accident. This result

is contemplated in such releases. As we have previously noted, “the defendant who

originally procures the release gains nothing if the plaintiff can [still] sue other joint

or concurrent tortfeasors. In such a case, the original defendant is left open to

claims for contribution and/or indemnity and may wind up having to litigate the

case anyway.” Flynn, 526 N.W.2d at 746. And that is what would happen in this


5.    The comment provides:
             The situation to which the rule stated in this Section is usually
             applicable is where the actor’s negligence is the legal cause of
             bodily harm for which, even if nothing more were suffered, the
             other could recover damages. These injuries require the other to
             submit to medical, surgical, and hospital services. The services
             are so rendered as to increase the harm or even to cause harm
             which is entirely different from that which the other had
             previously sustained. In such a case, the damages assessable
             against the actor include not only the injury originally caused by
             the actor’s negligence but also the harm resulting from the
             manner in which the medical, surgical, or hospital services are
             rendered, irrespective of whether they are rendered in a
             mistaken or negligent manner, so long as the mistake or
             negligence is of the sort which is recognized as one of the risks
             which is inherent in the human fallibility of those who render
             such services.
      Restatement (Second) of Torts § 457 cmt. a (emphasis added).

6.    Because causation is established as a matter of law, we need not address
      Appellants’ argument that the joint-versus-independent-tortfeasor distinction
      is a question of fact for the jury.

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#27438, #27446

case. Although Smith obtained a full release, he would wind up having to litigate

the accident and defend a contribution and indemnity claim by Dr. Miller and YSA.

[¶12.]         Appellants released all persons from all claims that developed from the

accident. Because Haley’s malpractice damages developed from the injuries

sustained in the auto accident, we conclude that the release applied to the

suboptimal recovery allegedly caused by the medical treatment of the accident

injuries. The circuit court correctly determined that the release barred Appellants’

claims as a matter of contract. In light of our interpretation of the contract,

Appellants’ other arguments need not be addressed. 7




7.       Appellants’ authorities from other jurisdictions are inapposite. In Posey v.
         Medical Center–West, Inc., 354 S.E.2d 417 (Ga. 1987), the Georgia Supreme
         Court held that the liability of two doctors and a hospital was not discharged
         by a release signed by the parents of a child struck by an automobile. Id.
         at 417. But in Georgia, unlike South Dakota, only the parties named in a
         release are discharged. See Lackey v. McDowell, 415 S.E.2d 902, 902 (Ga.
         1992) (clarifying the decision in Posey). In Galloway v. Lawrence, 139 S.E.2d
         761 (N.C. 1965), the court applied a stricter interpretation of North
         Carolina’s joint-contribution-nonrelease rule. Id. at 763. Contra Flynn, 526
         N.W.2d at 746. In Neves v. Potter, 769 P.2d 1047, 1054 (Colo. 1989) (en banc),
         and Williams v. Physicians & Surgeons Community Hospital, Inc., 292 S.E.2d
         705, 707 (Ga. 1982), parol evidence was admitted to show the signatories’
         intent because in those jurisdictions such evidence may be used when
         nonparties to a release claim coverage. Likewise, in Pennington v. Bluefield
         Orthopedics, P.C., 419 S.E.2d 8, 12, 14 (W. Va. 1992), the court allowed parol
         evidence to ascertain the parties’ intent in a settlement release that named
         only the original tortfeasor. However, South Dakota does not permit parol
         evidence in unambiguous releases. See Flynn, 526 N.W.2d at 746
         (disallowing extrinsic evidence to contradict an unambiguous release).
         Finally, Ash v. Mortensen, 150 P.2d 876 (Cal. 1944), involved a release that
         was executed following a prior action that had proceeded to judgment. Id.
         at 877. Further, the analysis in Ash suggests that the language of that
         release only purported to release the negligent driver. Therefore, the issue in
         that case involved the rules of “full compensation or satisfaction” rather than
         the contractual scope of the release. Id. at 879.

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[¶13.]       In their third issue, Appellants argue that the circuit court erred in

denying their motion for a continuance to conduct additional discovery before ruling

on the motion for summary judgment. The circuit court concluded that the

language of the release was unambiguous and, therefore, that there were no

additional facts regarding the parties’ intent that were essential to discover in

opposition to the motion for summary judgment. We agree.

[¶14.]       SDCL 15-6-56(f) authorizes a court to order a continuance to permit a

party opposing summary judgment to conduct discovery when necessary to oppose

the motion. Dakota Indus., Inc. v. Cabela’s.com, Inc., 2009 S.D. 39, ¶ 6, 766 N.W.2d

510, 512. Under the rule, “the facts sought through discovery must be essential to

opposing the summary judgment[.]” Id.; SDCL 15-6-56(f). “A circuit court’s refusal

to grant additional discovery prior to awarding summary judgment is reviewed for

abuse of discretion.” Stern Oil Co. v. Border States Paving, Inc., 2014 S.D. 28, ¶ 24,

848 N.W.2d 273, 281.

[¶15.]       Appellants sought additional time to depose Smith, Dawn, and the

judge who approved the release in the conservatorship. Appellants sought to

discover those individuals’ subjective intent regarding who and what claims were to

be released. However, as already explained, this is a case of contract

interpretation—a question of law that is based on the language used in the contract

rather than the parties’ subjective belief. Fenske Media Corp., 2004 S.D. 23, ¶ 8,

676 N.W.2d at 393; see also Flynn, 526 N.W.2d at 746 (rejecting a claim that the

releasor was misled by her attorney where the language of the release was

unambiguous—the language of the release controlled). Therefore, the additional


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facts regarding subjective intent were not essential to resist the motion for

summary judgment. “If the contract is plain and unambiguous[,] extrinsic evidence

is not considered because the intent of the parties can be derived from within the

four corners of the contract.” Kernelburner, L.L.C. v. MitchHart Mfg., Inc., 2009

S.D. 33, ¶ 7, 765 N.W.2d 740, 742. The circuit court did not abuse its discretion in

denying Appellants’ request for time to conduct additional discovery.

[¶16.]       In their fourth issue, Appellants argue that the conservator court

determined the release was only a partial release. Appellants point out that a court

approving a minor’s settlement is required to tend to the minor’s best interest.

Accordingly, Appellants contend that we must assume the conservator court

determined that the release did not apply to future claims. Appellants further

contend that the conservator court’s future claim determination is res judicata,

precluding the assertion of a release defense in this action.

[¶17.]       This argument is speculative at best. Courts routinely approve broad,

general releases in settlements not involving full compensation for all injuries

sustained. Furthermore, the language of this release leaves no room for future

claims. Finally, the circuit court noted that the conservator did not inform the

conservator court that the money recovered in this settlement and the settlement

with the underinsured carrier was not sufficient to fully compensate Appellants or

that other defendants may have liability. Under these facts, we will not assume

that there was a prior judicial determination barring a release defense.




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[¶18.]       We affirm the circuit court’s grant of summary judgment. Because we

affirm on that issue, we do not address Dr. Miller and YSA’s statute-of-limitations

issue raised by notice of review.

[¶19.]       GILBERTSON, Chief Justice, and SEVERSON, WILBUR, and KERN,

Justices, concur.




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