author: KONENKAMP, Justice.

text:
    2000 SD 159
    Timothy HOLLANDER, Plaintiff and Appellant, v. DOUGLAS COUNTY, South Dakota, Defendant and Appellee.
    No. 21365.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 25, 2000.
    Decided Dec. 20, 2000.

      Timothy R. Whalen, Lake Andes, SD, Attorney for plaintiff and appellant.
    Stephen C. Landon and Michael A. Henderson of Cadwell, Sanford, Deibert & Garry, Sioux Falls, SD, Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] Timothy Hollander was fired from his position as a deputy sheriff for Douglas County. He challenged the decision and, following a trial, the circuit court upheld the discharge. In this appeal, we consider whether Hollander was properly categorized as an employee at will, and if not, whether he was afforded due process, and whether there was sufficient “cause” to support his dismissal. We conclude that he was not an employee at will under the terms of the county’s disciplinary policy; however, he was given a due process hearing, and there were sufficient grounds to justify his dismissal.

Background

[¶ 2.] On the afternoon of January 31, 1999, Deputy Hollander was off-duty at home, entertaining guests at a Super Bowl Party. He was also recovering from the flu. Someone called him to report that a young woman with “a lot of blood” on her face and clothing was in a public park in Harrison, South Dakota. Hollander telephoned Sheriff Chuck Strehlow to ask him if he would respond to the call, saying, “I’m really not feeling up to it, Chuck. I’m kind of sick.” Strehlow, who was on call that weekend, agreed to go.

[¶ 3.] Not long afterwards, Hollander received another call that the Sheriff needed help. Hollander reached Sheriff Strehlow on the radio. According to Hollander, Strehlow said, “Yeah, I got a guy here on a domestic and I need somebody to transport him to Lake Andes. I’m afraid he’s going to run on me.” Hollander left for Harrison and on his way met Strehlow driving in the opposite direction. As they passed, Strehlow explained on the radio, “I’m en route to the hospital with this gal and you better get there because I think he might run on you.” Strehlow later testified that he also told Hollander to “arrest Dwight DeWaard and take him to jail for domestic, simple assault domestic.” DeWaard was supposed to be waiting at his residence, as Strehlow had told him he was going to be arrested.

[¶ 4.] On arriving in Harrison, Hollander found DeWaard still at his home. He explained to DeWaard that he was there to take him to jail. DeWaard said, “Why am I the one that has to go to jail when she destroyed my house and beat me up.” Seeing some marks on DeWaard’s face, Hollander replied, ‘Well, I can see that. But apparently Sheriff Strehlow has decided that she’s worse off than you, and I am ordered by him to take you to jail.” Hollander issued DeWaard a citation using a Uniform Traffic Ticket/Complaint. In the box titled “Officer Issuing Summons,” Hollander wrote, “C. Strehlow.” Immediately below that box was another one for the officer’s signature. Hollander left it blank for Strehlow to sign.

[¶ 5.] Hollander read DeWaard his Miranda rights, but did not tell DeWaard that he was under arrest because Hollander believed Strehlow had already arrested him. On the way to the jail in Lake Andes, Deputy Hollander had DeWaard sit on the passenger side of the car without being handcuffed. As Hollander later explained, “I had no fear of Dwight of what he was going to do. I’ve known him for some time and I didn’t see any ... reason that he was going to become upset or agitated, ... he was not violent by any means.” Hollander later met with Streh-low to discuss the matter before heading home. Strehlow expressed no concern at that time about the way Hollander filled out the ticket. After learning the full extent of the victim’s injuries, however, Strehlow charged DeWaard with aggravated assault the next day.

[¶ 6.] DeWaard was later released on bail subject to conditions, including no contact with the victim, Linda Vore. About a week later, Vore telephoned Hollander. He knew Vore and DeWaard as he “was friends with both of them.” She said she thought DeWaard had removed some of her clothing from the house they shared, and she believed this violated the bail conditions. Hollander disagreed. She wanted DeWaard arrested. Hollander refused. He told her that most of the things in the house belonged to DeWaard. Hollander knew this, he later explained, because he had earlier spoken to DeWaard and that is what DeWaard told him.

[¶ 7.] Although there was no pending investigation against Vore, and no discussion between the Sheriff and Hollander about bringing a case against her, Deputy Hollander decided to use Vore’s call as “an opportunity to question her” about the incident: “I felt she was a suspect in simple assault.” According to Sheriff Strehlow’s report, Vore admitted to hitting DeWaard first. However, the report went on to detail DeWaard’s vicious reprisal. He began hitting her repeatedly, and getting on top of her, he beat her into unconsciousness. Indeed, when Strehlow first encountered Vore, she was bleeding badly from the area of her left eye. She ended up with a fractured cheekbone and eye damage.

[¶8.] During their phone conversation, Vore told Hollander that she felt she deserved to have everything in the house because of what DeWaard did to her face. Referring to the Sheriffs report, Hollander responded, “Well, it says you did hit him first.” She reacted angrily, screaming “I did not.” She insisted the report was false. Then Hollander raised his own voice “to try to get over the top of what she was raised to me.” He said, “Well if you’re going to change your story and lie about it, that will be between you and the courts because it will come out in court. You’ll find out who’s telling the truth.” Hollander told Vore that he would still deal with the stolen clothes issue. Upset, Vore said that she would contact the Sheriff herself. Nonetheless, Hollander called DeWaard who confirmed for Hollander that he had not taken Vore’s clothes, although he admitted he had been to the house. Hollander and Strehlow briefly discussed these matters the next day.

[¶ 9.] Vore told an employee at the safe house where she was staying that Hollander had been rude to her and had spoken to her in a loud, angry manner. The employee complained to Sheriff Strehlow. On February 8th, 1999, Strehlow called Hollander to his office. He told Hollander that he was firing him because of the Vore matter. Strehlow handed Hollander a letter informing him that his employment was terminated as of February 22, 1999. In that letter Strehlow cited SDCL 7-12-11 as authority for his action. Strehlow gave Hollander another letter on February 10, 1999. It declared that his termination was effective immediately, giving the following reasons: Hollander had refused to arrest the aggressor in a domestic disturbance after being directed by the Sheriff to do so; he wrote a ticket with the Sheriffs name, possibly making the arrest illegal; and he was “very rude and unreasonable” with the victim, showing “great favoritism” toward the aggressor. On the same day, Hollander received a “notice of hearing” from the Douglas County Board of Commissioners. The notice included all of the allegations in Streh-low’s letter and explained that Hollander had the right to a hearing, to confront and cross-examine witnesses, to have counsel present, and to offer evidence on his own behalf.

[¶ 10.] The hearing before the county commission took place on February 16, 1999. The entire proceedings, including deliberations, were transcribed by a court reporter. Hollander was present with counsel. His attorney cross-examined the witnesses and presented evidence on Hollander’s behalf. After the testimony, the commissioners deliberated in executive session with the State’s Attorney present and then announced their unanimous decision to discharge Hollander, in accordance with Strehlow’s recommendation. In its written findings of fact, the commission found that Hollander committed “major misconduct” in the performance of his duties in that he “refused to arrest the aggressor in a domestic disturbance after being directed by the Sheriff to do so”; he issued the ticket in the Sheriffs name, “possibly making the arrest invalid”; he yelled at the victim over the phone, “telling her it was her fault that this happened”; and he “was very rude and unreasonable and showed great favoritism toward the aggressor.”

[¶ 11.] Hollander appealed the decision to the circuit court, where a bench trial was held on August 25, 1999. In upholding the dismissal, the court ruled that Hollander was an at will employee who could be terminated without cause, but nonetheless, the court found that Hollander was afforded due process. Hollander appeals.

Analysis and Decision

1. Due Process Termination

[¶ 12.] The gravamen of Hollander’s complaint is that he was not afforded due process in his termination. Success in such a claim depends in large part on the presence of a property right in continued employment. Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494, 501 (1985) (citations omitted). A property interest worthy of due process protection must be granted or defined by a source independent from the Constitution, such as state law. Id. See also Hopkins v. Saunders, 199 F.3d 968, 975 (8th Cir.1999)(citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548, 561 (1972)).

[¶ 13.] South Dakota is an employment at will state: “An employment having no specified term may be terminated at the will of either party on notice to the other....” SDCL 60-4-4; Butterfield v. Citibank of South Dakota, 437 N.W.2d 857, 859 (S.D.1989)(citing Larson v. Kreiser’s Inc., 427 N.W.2d 833, 834 (S.D.1988)). Personnel in an employment at will arrangement may be dismissed “at any time for any reason.” Petersen v. Sioux Valley Hosp. Assn., 486 N.W.2d 516, 520 (S.D.1992). Employment at will, therefore, creates no constitutionally protected property interest. Haddle v. Garrison, 525 U.S. 121, 125-26, 119 S.Ct. 489, 492, 142 L.Ed.2d 502, 508 (1998) (citations omitted).

[¶ 14.] Hollander argues that he was covered by the Douglas County “Disciplinary Action and Grievance Procedure,” taking his employment outside South Dakota’s employment at will law. In Osterkamp v. Alkota Manufacturing, we recognized a narrow exception: it applies when an employer’s discharge policy provides that termination will occur only for cause. See Butterfield, 437 N.W.2d at 859 (S.D.1989)(diseussing Osterkamp v. Alkota Manufacturing, 332 N.W.2d 275 (S.D.1983)). The exception can develop in one of two ways. First, an agreement to discharge for cause arises when an employee handbook “explicitly provides, in the same or comparable language that discharge can occur for cause only.” Butterfield, 437 N.W.2d at 859 (citations and internal quotations omitted); see also Johnston v. DLORAH, Inc., 529 N.W.2d 201, 202 (S.D.1995). Second, a contract providing that termination will not occur absent cause will be implied “where the handbook contains a detailed list of exclusive grounds for employee discipline or discharge and, a mandatory and specific procedure which the employer agrees to follow prior to any employee’s termination.” Butterfield, 437 N.W.2d at 859.

[¶ 15.] Our central inquiry is whether the county disciplinary policy expressed a clear intention to surrender the statutory right to terminate employees at will. See Johnston, 529 N.W.2d at 202. If Hollander can show “that he could have been fired only for good cause,” he has a protected property interest in continued employment. See Hopkins, 199 F.3d at 975 (citing Spitzmiller v. Hawkins, 183 F.3d 912, 916 (8th Cir.1999)). Douglas County’s grievance policy provides:

9.1.5 Dismissal
The decision-making authority with the approval of the approval authority may terminate an employee from county employment for disciplinary purposes.

(Emphasis added). Language specifying that employees can be dismissed for “disciplinary purposes” denotes a requirement of cause before termination can occur. See Black’s Law Dictionary 476 (7th ed. 1999)(defining discipline or disciplinary as “a sanction or penalty imposed after an official finding of misconduct.”) Under the county policy, therefore, an employee could not be disciplined without engaging in some type of misconduct and consequently could not be terminated absent action constituting misconduct.

[¶ 16.] Furthermore, Douglas County’s disciplinary procedure does not explicitly reserve the right to terminate employees without notice in “appropriate instances” as did the employer in Butterfield. See Butterfield, 437 N.W.2d at 859. In Petersen we emphasized that the express reservation by an employer of the right to terminate “at any time or for any reason” overcame language providing that “[e]m-ployees may be dismissed for any conduct ... deemed contrary to best interests of [employer].... ” 486 N.W.2d at 520. Douglas County’s disciplinary policy used no such disclaimer. We conclude that the county had a “for cause only” termination agreement with its employees. Because Hollander could only be terminated for cause, he had a property interest sufficient to trigger due process protections. See Hopkins, 199 F.3d at 975 (citations omitted).

[¶ 17.] The next step in our analysis is to ascertain what amount of process Hollander was due. Loudermill, 470 U.S. at 541, 105 S.Ct. at 1493, 84 L.Ed.2d at 503 (citations omitted). Fundamentally, due process requires “notice and an opportunity to be heard.” Wuest v. Winner School District, 2000 SD 42, ¶ 25, 607 N.W.2d 912, 917 (citations omitted); In Re Cancellation of the Stabio Ditch Water Right on Spearfish Creek, 417 N.W.2d 391, 394 (S.D.1987). These basic guarantees must be granted at a “meaningful time and in a meaningful manner.” Schrank v. Pennington County Bd. of Comm’rs., 1998 SD 108, ¶ 13, 584 N.W.2d 680, 682 (SD 1998) (citations and internal quotations omitted). Thus, we must ask whether Hollander had notice and an opportunity to be heard, “before he was deprived of any significant property interest.” Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493, 84 L.Ed.2d at 503-04 (citations and internal quotations omitted).

[¶ 18.] On February 10, 1999, Hollander received a notice to appear before the Douglas County Board of Commissioners “to consider the Douglas County Sheriffs recommendation that [his] employment be terminated.” The notice detailed Hollander’s rights and the basis for the Sheriffs recommendation. Hollander participated in the hearing with counsel. He had the opportunity to cross-examine the witnesses against him and to present evidence on his own behalf. This satisfies the procedural due process requirements of notice and an opportunity to be heard. Pre-termination hearings need not be elaborate and in general need not be full evidentiary hearings. See Loudermill, 470 U.S. at 545, 105 S.Ct. at 1495, 84 L.Ed.2d at 506 (citations omitted).

[¶ 19.] Hollander argues that he was effectively terminated before the county commission heard his case; therefore, he was not granted a pre-termination hearing. He believes that Sheriff Streh-low’s letters and comments dismissing him effectively terminated his position. Streh-low on his own, however, had no authority to fire Hollander. Strehlow could only relieve Hollander of his official duties as a deputy sheriff. See SDCL 7-12-11. Furthermore, it is undisputed that Hollander was not removed from the county payroll until after the commissioners’ decision. Therefore, Hollander suffered no significant detriment before his due process hearing. See Loudermill, 470 U.S. at 542, 105 S.Ct. at 1493, 84 L.Ed.2d at 503-04 (citations and internal quotations omitted).

2. Sufficient Cause to Terminate

[¶ 20.] In reviewing a case heard first by a county commission and then by a circuit court on appeal under SDCL 7-8-30, we accord no deference to the circuit court’s legal conclusions. Coyote Flats, L.L.C. v. Sanborn County Comm’n., 1999 SD 87, ¶ 7, 596 N.W.2d 347, 349 (citing Gregoire v. Iverson, 1996 SD 77, ¶ 14, 551 N.W.2d 568, 570; Tri County Landfill Ass’n v. Brule County, 535 N.W.2d 760, 763 (S.D.1996)). Although fact findings are viewed deferentially, the sufficiency of cause for termination is “fully reviewable as a legal question.” Green v. City of Sioux Falls, 2000 SD 33, ¶ 21, 607 N.W.2d 43, 48 (citations omitted). The circuit court made few findings on the propriety of Hollander’s termination in light of its holding that Hollander was an employee at will. Yet, what findings there were coincided with the commission’s findings. We look to the findings of both the circuit court and the commission to decide if there was sufficient evidence to sustain the commission’s ruling.

[¶ 21.] To justify termination for “disciplinary purposes” some degree of misconduct is required. Two specific instances identified by both the circuit court and the county commission can adequately be characterized as misconduct. It is undisputed that Hollander did not place his own name on the ticket he issued to De-Waard. Both the commission and the court were in a better position to decide whether to believe the Sheriff who said he told Hollander to “arrest” the suspect, or Hollander who said the command was merely to “transport .” The court ruled that Hollander had handled the call from Linda Vore improperly. Likewise, the commission found “that Tim Hollander started to scream at the victim telling her it was her fault ...” and “[t]hat Tim Hollander was very rude and unreasonable and showed great favoritism to the aggressor.” We review such findings with deference because the circuit court and the commission had the opportunity to evaluate credibility firsthand. See Tri County Landfill Ass’n, 535 N.W.2d at 763. After reviewing the transcript, we cannot say these findings are clearly erroneous.

[¶ 22.] From our reading of the record, Hollander’s misconduct is difficult to perceive as “major,” but he acted at cross-purposes with the Sheriff and used questionable judgment, falling below the standard expected of objective law enforcement officers. As the Sheriff testified, it came down to a matter of trust. “The standard for determining whether misconduct rises to the level which justifies discharging an employee is lower than that which determines whether an employee’s misconduct will deprive him of unemployment compensation.” City of Sioux Falls v. Miller, 1996 SD 132, ¶ 12, 555 N.W.2d 368, 371 (citations omitted). Hollander’s conduct in putting Strehlow’s name on the ticket may not alone have been adequate to justify termination. This action, however, taken together with his unprofessional treatment of Vore will sustain his discharge for disciplinary purposes. Consequently, sufficient evidence supported a finding of just cause for dismissal.

[¶ 23.] Affirmed.

[¶ 24.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . SDCL 7-12-11 provides in part: "the sheriff may relieve any deputy, jailer or clerk of any or all official responsibilities and duties, summarily."

      . Hollander also argues that all public employees "are excepted from the employee at will definition by virtue of Cleveland Board of Education v. Loudermill.” Our acceptance of such an argument would implicitly repeal SDCL 60-4-4. We note that the plaintiffs in Loudennill were classified as civil servants who by statute could be discharged only for cause. Loudermill, 470 U.S. at 535, 105 S.Ct. at 1490, 84 L.Ed.2d at 499. Hollander also relies on Lee v. South Dakota Department of Health, in making this argument. 411 N.W.2d 108 (S.D.1987). Like the employees in Loudermill, the employees in Lee had a property interest granted by an independent source, namely the department’s rules and regulations. Id. at 112. Consequently, on this point we find Hollander's argument mer-itless.


source: Caselaw Access Project

author: AMUNDSON, Justice.

license: Public Domain

text:
    2000 SD 155
    ESTATE OF Timothy WILLIAMS, by its Personal Representative, Vonda WILLIAMS, Plaintiff and Appellant, v. Willard VANDEBERG and David Vandeberg, as Individuals, and Willard Vandeberg and David Vandeberg, a partnership, Defendants and Appellees.
    No. 21352.
    Supreme Court of South Dakota.
    Considered on Briefs Sept. 18, 2000.
    Decided Dec. 20, 2000.

      Rollyn H. Samp, Sioux Falls, SD, Attorney for plaintiff and appellant.
    Rick Ribstein, Brookings, SD, Attorneys for defendants and appellees.
   AMUNDSON, Justice.

[¶ 1.] Estate of Timothy Williams, by its personal representative Yonda Williams, appeals the trial court’s dismissal of its claim of vicarious liability against Willard and David Vandeberg, the brothers of the tortfeasor, Elmer Vandeberg. We affirm.

FACTS

[¶ 2.] On November 14, 1996, a collision occurred between Timothy Williams and Elmer Vandeberg at the intersection of County Roads 10 and 3A in Moody County, South Dakota. At the time of the collision, Elmer was driving a 1993 Ford pickup, which he owned and insured. As a result of the accident, Williams was killed. On January 15, 1997, Vonda Williams brought a lawsuit as personal representative of the estate of Timothy against Elmer. That lawsuit was settled for $100,000 on January 26, 1998, between Williams and Elmer’s insurance carrier.

[¶ 3.] The settlement agreement included a full and final release of all claims against Elmer. The release signed by all parties to the lawsuit provided Elmer Vandeberg with the right of indemnity against Williams for any and all claims of any other person, which would arise out of the underlying collision. The release also provided that Williams would indemnify and hold harmless Elmer for any and all costs and attorneys’ fees incurred in connection with any claim for contribution, indemnity, or subrogation. The release also included an express reservation to sue Willard and David Vandeberg, stating: “Releasors do not intend to release or dimmish or in any way limit their claim for damages arising out of this accident and death, directly or indirectly, against Willard VanDeBerg and David VanDeBerg, individually and as partners.”

[¶ 4.] In December 1997, Williams filed a second suit. This time Williams filed suit against Willard and David Vandeberg arising out of the same 1996 collision. The Complaint filed by Williams alleged that Elmer was an agent/employee of Willard and David Vandeberg. The Complaint further alleged that Willard and David Vandeberg were vicariously liable as principals or employers of Elmer because of Elmer’s alleged fault, which resulted in the death of Timothy Williams.

[¶ 5.] On July 21, 1999, Williams filed a Motion for Summary Judgment and requested that the trial court find as a matter of law that Elmer was an agent of his brothers. Willard and David Vandeberg countered with then- own Motion for Summary Judgment on September 15, 1999. Their motion sought judgment on the issues that Elmer was a “protected person” under SDCL 29A-5-414 and that the release of Elmer was -also a release as to Willard and David.

[¶ 6.] On October 18, 1999, a hearing was held regarding the motions for summary judgment filed by each party. The trial court entered a written ruling dated October 20, 1999, holding that Elmer was not a “protected person” under SDCL 29A-5-414, but did, however, grant summary judgment in favor of Willard and David on the release issue. Williams appeals raising the following issue:

Whether, based on respondeat superior or vicarious liability, a release of an agent/employee (Elmer) is the release of the principal/employer (Willard and David) when there is an express reservation to sue the principal/employer.

STANDARD OF REVIEW

[¶ 7.] A trial court may grant summary judgment only when there are no genuine issues of material fact. SDCL 15 — 6—56(c); Bego v. Gordon, 407 N.W.2d 801 (S.D.1987). The moving party bears the burden of showing the absence of genuine issues of material fact. Id. In resisting the motion, the non-moving party must present specific facts that show a genuine issue of fact does exist. Ruane v. Murray, 380 N.W.2d 362 (S.D.1986). Mere allegations that are devoid of specific facts will not prevent the issuance of summary judgment. Western Cas. & Sur. Co. v. Gridley, 362 N.W.2d 100 (S.D.1985). If no issue of material fact exists, then any legal questions may be decided by summary judgment. Bego, supra. When determining whether a genuine issue of material fact exists, the evidence must be viewed most favorably to the non-moving party and reasonable doubts are to be resolved against the moving party. Groseth Int’l, Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D.1987). While this Court has always adhered to the notion that “summary judgement is an extreme remedy,” it should be awarded when there is an absence of material fact at issue and “the truth is clear.” State of South Dakota, Dept. of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989).

DECISION

Whether, based on respondeat superi- or or vicarious liability, a release of an agent/employee is the release of the principal/employer when there is an express reservation to sue the principal/employer.

[¶ 8.] This issue presents a case of first impression in South Dakota. There is a split of authority in other jurisdictions that have addressed this same issue. The majority of jurisdictions have held that a principal/employer is released from liability when the agenVemployee is released via a settlement agreement.

[¶ 9.] The general rule is a release acts as an impediment to recovery for all claims arising from the tortfeasor’s conduct. Flynn v. Lockhart, 526 N.W.2d 743 (S.D.1995); cf. Uniform Contribution Among Joint Tortfeasors Act (SDCL 15-8-11 to 15-8-22). This case, however, is different from most in that it involves an express reservation to sue non-tortfeasors, Willard and David Vandeberg. Thus, it is not a tortfeasor being sued as in Flynn, but rather non-tortfeasors that were not party to the release were being sued. This distinction, however, does not automatically prevent the application of the general rule to this case as all claims arise out of Elmer’s sole act of negligence.

[¶ 10.] Nearby jurisdictions have had the opportunity to examine releases similar to the release in this case. In Biddle v. Sartori Mem. Hosp., 518 N.W.2d 795 (Iowa 1994), a female emergency patient was negligently released from the hospital by her doctor. She died later that day from heart failure. The legal representative of the plaintiff/patient released the doctor from liability after a substantial settlement had been reached. Her estate then sued the hospital claiming that it was vicariously liable for the doctor’s negligence.

[¶ 11.] The Iowa Supreme Court determined that without independent negligence alleged by the plaintiff or it being alleged as a joint tortfeasor case, the plaintiff failed to address “the limitations inherent in a claim that rests on the doctrine of vicarious liability.” Biddle, supra, at 798. Like the Supreme Court of North Dakota, the Iowa court went on to articulate vicarious liability this way:

The “percentage of negligence” attributable to the conduct of the servant constitutes the entire “single share” of liability attributable jointly to the master and servant.... Because this percentage of negligence represents the “single share” of liability covered by the common liability of the master and servant, the master is necessarily released from vicarious liability for the released servant’s misconduct.

Id. (citing, Horejsi v. Anderson, 353 N.W.2d 316, 318 (N.D.1984)). The Iowa court went on to explain “vicarious liability derives solely from the principal’s legal relation to the wrongdoer, settlement with the tortfeasor removes the basis for any additional recovery from the principal upon the same acts of negligence.” Id. A “single share” theory for liability results in the treatment of both agent and principal as one. Thus, a “settlement with an agent effectively adjudicates and satisfies the vicarious claim.” Id. Therefore, the plaintiff cannot recover against the principal once recovery against the agent has been completed.

[¶ 12.] The Iowa court also subscribes to the notion than an inapposite outcome would result in circuity of action and multiplicity of lawsuits. The court concluded:

[s]uch an outcome would clearly advance the goal of voluntary settlement of controversies favored by law. This is because of the well settled rule that a principal found vicariously liable for the negligent acts of an agent retains a right of full indemnity against the actual tort-feasor. The potential enforcement of such right ... would clearly have discouraged rather than encouraged settlement.

Id. at 799 (internal citations omitted). The rationales of preventing circuity of action and encouragement of settlement complement one another. The complementary aspects of both rationales serve another important goal: finality. Public policy favors finality, thus avoiding circuity of action that is merely derivative and secondary.

[¶ 13.] Like Iowa, Michigan has also determined that release of the agent is release of the principal even when an express reservation to sue is present. In Theophelis v. Lansing General Hospital, 430 Mich. 473, 424 N.W.2d 478 (1988), plaintiffs, the personal representative of the decedent and the decedent’s parents, signed a release absolving any future liability against a doctor and nurse. Within the release, an express reservation was present allowing for recourse against anyone except those specifically released. Thus, plaintiffs were under the impression they could sue the hospital based on the express reservation.

[¶ 14.] The Michigan Supreme Court poignantly stated that “[a]t common law a valid release of an agent for tortious conduct operates to bar recovery against the principal on the theory of vicarious liability, even though the release specifically reserves claims against the principal.” Theophelis, supra, at 480 (citing, 53 Am. Jur.2d, Master and Servant, § 408 at 416-18; 126 ALR 1199; 76 CJS, Release, § 50 at 89). The Michigan court explained that “the principal, having committed no tor-tious act, is not a ‘tortfeasor’ as the term is commonly defined,” thus the release of the culpable party extinguishes any liability of the non-guilty principal. Id. (citing Black’s Law Dictionary (5th ed.) (defining a tortfeasor as “a wrong-doer; one who commits or is guilty of a tort”)). Like the Iowa court, the Michigan court concluded that the plaintiffs are without recourse against the hospital on the theory of vicarious liability, even with the inclusion of an express reservation within the release.

[¶ 15.] We are persuaded by the rationale set forth by the aforementioned cases holding a release of an agent is a release of the principal even when the release contains an express reservation and where the claim is premised on the single act of the agent. Theophelis, 430 Mich. 473, 424 N.W.2d 478 (1988); Dickey, 188 Neb. 420, 197 N.W.2d 385 (1972). The majority of jurisdictions have determined that if they were to hold otherwise, circuity of action would follow. See L.C., 1997 ND 96, 563 N.W.2d 799 (1997); Reedon, 418 N.W.2d 488 (Minn.1988); Horejsi 353 N.W.2d 316 (N.D.1984). Our holding today fosters the principle of finality while attempting to limit circuity of action and multiplicity of lawsuits, which in this Court’s wisdom, is the fairer result. Therefore, summary judgment was appropriate.

[¶ 16.] We also have considered the other issues brought by Williams, and find them without merit.

[¶ 17.] Affirmed.

[¶ 18.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . The Restatement defines the vicarious liability of an employer: A master is subject to liability to third persons injured in their business relations by the tortious conduct of a servant acting within the scope of employment or, if apparent authority is relevant, acting within his apparent authority. Restatement (Second) of Agency § 248 (1958).

      . Nebraska has also held that release of the agent is release of the principal. L.C. v. R.P., 563 N.W.2d 799 (1997); see also Dickey v. Estate of Meier, 188 Neb. 420, 197 N.W.2d 385, 388 (1972). The Nebraska Supreme Court agreed with North Dakota’s resolution in this type of matter in Horejsi. The Nebraska Court agreed:
      [t]he release of a servant for tortious acts also released the master from vicarious liability!.] Our decision [is] premised on avoiding a circle of indemnity that would have resulted if the release of the servant did not also release the master from vicarious liability.

        Id. at 801, (citing Horejsi, supra, at 318); see also Reedon of Faribault, Inc., v. Fidelity and Guaranty Ins. Underwriters, Inc., 418 N.W.2d 488, 490 (Minn.1988).

      . If we were to hold otherwise, then Williams may proceed against Willard and David Vandeberg in a subsequent suit and collect a judgment. Accordingly, Willard and David could then in-turn sue Elmer Vandeberg for indemnity. Degen v. Bayman, 86 S.D. 598, 200 N.W.2d 134 (1972) (Degen I). In the suit brought by Willard and David against Elmer, Williams, according to the terms of the release, would have to defend Elmer against Willard and David’s claim. Such circuity of action and multiplicity of lawsuits can be readily avoided by implementing a rule where a release to one is a release to all.


author: SABERS, Justice

text:
    2000 SD 156
    STATE of South Dakota, Plaintiff and Appellee, v. Gatluak Puot WELL, Defendant and Appellant.
    No. 21188.
    Supreme Court of South Dakota.
    Argued Oct. 23, 2000.
    Decided Dec. 20, 2000.

      Mark Barnett, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, SD, Attorneys for plaintiff and ap-pellee.
    Scott Carlson, Julie Hofer, Minnehaha County Public Defender’s Office, Sioux Falls, SD, Attorneys for defendant and appellant.
   SABERS, Justice

[¶ 1.] A jury found Gatluak Puot Well guilty of aggravated assault with a dangerous weapon (aggravated assault) and abuse or cruelty to a minor (abuse). Well was sentenced by the court on the conviction for abuse and no sentence was entered on the conviction for aggravated assault. We affirm the conviction for abuse but remand for reconsideration of the sentence and reverse the conviction for aggravated assault as mutually exclusive.

FACTS

[¶ 2.] On March 20, 1999, Well was informed by a neighbor, Kristen Woodward, that she suspected his son, B.G., had taken video game equipment from her home. Well searched his son’s room and discovered part of the video game equipment in B.G.’s backpack. Well then called B.G. into the room to confront him about the discovery. B.G. admitted being in Woodward’s apartment with some other kids and taking the item.

[¶ 3.] Woodward left Well’s apartment and went to the apartment of Linda Gilley located next door. While standing in the hallway talking to Gilley they heard very loud noises and screams for help coming from Well’s apartment. Woodward “likened it to the sound [ ] a baseball bat might [make] when hitting a wall, loud and sharp.” Woodward pounded on Well’s door with no immediate answer.

[¶ 4.] B.G. eventually answered the door and Woodward noticed he was “crying and trying to catch his breath.” Well then grabbed B.G. by the arm and began dragging him down the hallway to talk to the parents of the other boys involved. Woodward noticed that Well “had a belt in his hand, it was a braided dark leather belt with a silver buckle.” Woodward also noticed a gash across the back of B.G.’s skull. Woodward testified that blood was “visibly dripping” from the wound and that “the patch of blood was dripping onto his left shoulder, and [Woodward] estimated it to be the size of [her] spread palm.”

[¶ 5.] Meanwhile, Gilley was on the phone to 911. Woodward grabbed the phone from her and told the operator “they had to hurry ... the man has split the kid’s head open and it was bleeding.” Gilley testified she watched as Well drug the screaming child down the hall. She also observed B.G. “on the floor on his knees and his father [Well] struck him twice with a leather belt across the back of the head.”

[¶ 6.] As Well approached his own apartment, B.G. grabbed Woodward’s arm and begged her not to let him go. Well told Woodward “why do you do this to me? You bring this into my home. [Y]ou are going to kill him.” Woodward testified that she thought the best thing to do was to let B.G. go and wait for the police to arrive because she believed she was making Well more angry.

[¶ 7.] Officers from the Sioux Falls Police Department arrived and found Well stringing his belt back in the loops of his pants and B.G. in the bedroom crying. An officer seized the belt and “immediately noticed that there was blood on the woven portion of the belt,” and “on the belt buckle also.” After being advised of his rights, Well stated that he “disciplined him with the belt.” When asked if he hit B.G. in the head with the belt he “stated he did.”

[¶ 8.] B.G. was brought to the emergency room of Sioux Valley Hospital for treatment. According to Dr. Richard Kaplan, B.G. had “large cuts on the back of his head that were bleeding quite profusely. In front of his left ear there were areas of bumps and swelling.” His neck was tender, there was bruising on the left tricep and his right arm was tender and had scrape marks. On his back “there were two areas where his skin had somewhat disrupted by very big areas, looked like they had been scraped or scratched or something.” He also had an area that was sore below his knee “where there was a slight mark.” Dr. Kaplan treated and photographed these injuries.

[¶ 9.] Well was indicted for aggravated assault, aggravated assault-extreme indifference to the value of human life, and abuse. A jury trial was held and Well was found guilty of aggravated assault and abuse. Well was found not guilty of aggravated assault-extreme indifference to the value of human life. Well was sentenced on the conviction for abuse to a term of four years in the South Dakota State Penitentiary, with all four years of that sentence suspended if Well complies with various conditions, including six months in the Minnehaha County Jail. The trial judge specifically sentenced Well solely on the conviction for abuse.

[¶ 10.] Well appeals the convictions and the sentence imposed contending it was error for the trial court:

1.) to allow Dr. Kaplan to testify that he took pictures of B.G. to use in teaching medical students about child abuse in that it called for a legal conclusion;
2.) to refuse Well’s jury instruction on alternative counts;
3.) to deny Well’s motion for Judgment of Acquittal on the conviction for aggravated assault; and that
4.) the evidence was insufficient to support the convictions.

STANDARD OF REVIEW

[¶ 11.] “A trial court’s decision regarding the qualification of experts and the admission of their testimony will only be reversed upon a showing of an abuse of discretion.” State v. Spaans, 455 N.W.2d 596, 599 (S.D.1990). Additionally, “our standard of review of a denial of a motion for judgment of acquittal is whether the State set forth sufficient evidence from which the jury could reasonably find the defendant guilty of the crime charged.” State v. Larson, 1998 SD 80, ¶ 19, 582 N.W.2d 15, 17. “In determining the sufficiency of the evidence to constitute the crime, the question is ‘whether there is sufficient evidence in the record which, if believed by the jury, is sufficient to sustain a. finding of guilt beyond a reasonable doubt.’ ” Id.

[¶ 12.] We review a trial court’s failure to give a requested instruction as follows:

On issues supported by competent evidence in the record, the trial court should instruct the jury. The trial court is not required to instruct the jury on issues lacking support in the record. Failure to give a requested instruction that correctly states the law is prejudicial error. Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial. The burden of demonstrating prejudice in failure to give a proposed instruction is on the party contending error.

State v. Shadbolt, 1999 SD 15, ¶ 9, 590 N.W.2d 231.

[¶ 13.] 1. WHETHER THE TRIAL COURT ERRED IN ALLOWING DR. KAPLAN TO TESTIFY THAT HE TOOK PICTURES OF B.G. TO USE IN TEACHING ABOUT CHILD ABUSE.

[¶ 14.] During trial, Dr. Kaplan was called to testify about the injuries B.G. sustained. His testimony was aided by the use of photographs he had taken when B.G. was admitted to the emergency room. In particular, the photographs were used to establish the existence of “pattern injuries” that indicated B.G. was struck with a belt buckle. Dr. Kaplan testified that a “pattern injury is one that takes on the form or shape of the object that inflicts, that is inflicted upon the child, and it creates a certain pattern of injury.”

[¶ 15.] In the course of this testimony, the following exchange occurred:

Q: (State’s Attorney) Dr. Kaplan, did you take some pictures of B.G. in the emergency room?
A: Yes, I did.
Q: And why did you do this?
A: Well, one of my other hats is teaching. I teach all over the place about child abuse and teach medical students about child abuse.
Ms. Hofer: Objection, Your Honor, this is going to call for a conclusion.
The Court: Overruled. You may proceed doctor.
A: And so there are examples that I have of youngsters who have been injured in a certain way with a certain pattern injuries which are characteristic of abusive injury, then I often document them so that we can teach about them to people in recognition classes, and things like that, and students.

Well asserts that this testimony in effect intruded upon the jury’s function by reaching a legal conclusion that Well was guilty of abuse.

[¶ 16.] A trial court’s decision to admit expert testimony is controlled by SDCL 19-15-2, which provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

‘We have long acknowledged that the trial court has broad discretion concerning the admission of expert testimony.” State v. Hill, 463 N.W.2d 674, 676 (S.D.1990). Dr. Kaplan was not asked nor did he give an opinion as to Well’s guilt or innocence. The admission of this testimony was not an abuse of discretion and did not “invade the province of the jury.” However, it came close. The testimony provided the jury with the reason the pictures were taken, which is harmless in itself. It also indicated that Dr. Kaplan believed the injuries sustained by B.G. were characteristic of pattern injuries, as they were consistent with the belt and buckle.

[¶ 17.] Although statements relating to the characteristics of abuse or the cause of physical injuries are permissible to assist the trier of fact, they frequently exceed permissible medical opinion and become impermissible legal opinion. See Atkins v. State, 243 Ga.App. 489, 533 S.E.2d 152, 154 (2000); Stephens v. State, 774 P.2d 60, 67 (Wyo.1989); State v. Saldana, 324 N.W.2d 227, 230-31 (Minn.1982). Here, it would have been preferable to exclude the statements that these injuries were characteristic of “abusive injuries” and taken for classes on “child abuse.” But the exchange was background for later valid testimony and was not impermissible or harmful error, especially in the absence of a motion to strike and or admonish.

[¶ 18.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING WELL’S JURY INSTRUCTION REGARDING ALTERNATIVE COUNTS.

[¶ 19.] Well submitted a jury instruction requesting that if Well was found guilty of one of the aggravated assault charges he could not also be found guilty on the abuse count and vice versa. The trial court denied Well’s requested instruction stating that if convicted of both, he would only be sentenced on one so he would not suffer any prejudice. Indeed, the trial court only sentenced Well on the conviction for abuse, a Class 4 felony, and not on aggravated assault, a Class 3 felony.

[¶ 20.] Well argues as a matter of law that the abuse statute precludes a conviction under that statute and the aggravated assault statutes. SDCL 26-10-1 provides in part that “[a]ny person who abuses, exposes, tortures, torments, or cruelly punishes a minor in a manner which does not constitute aggravated assault, is guilty of a Class 4 felony.” (Emphasis added). In contrast, the State cites our decision in State v. Biays as support that a conviction under both statutes is perfectly valid. 402 N.W.2d 697 (S.D. 1987). In essence, both parties are half-right.

[If 21.] The State’s reliance on Biays strains the plain meaning of SDCL 26-10-1. In Biays, we held that it was “possible that a person may be found guilty of both aggravated assault of a minor and abuse of that same minor.” Id. at 700. That possibility only exists when the convictions are based on two separate incidents. Id. We recognized that both statutes, abuse and aggravated assault, may be violated in a single transaction, but there must exist different facts to constitute each crime or else SDCL 26-10-1 makes them mutually exclusive. In other words, for the State to maintain separate convictions under the abuse and aggravated assault statutes, they must establish that the charges were the result of separate factual incidents. As recognized in Biays, the convictions must be distinguished factually from each other. See id. (distinguishing a skull fracture incident constituting aggravated assault from a second incident where the child was abused under SDCL 26-10-1). We recognized that the legislature did not intend two separate punishments for the same crime under these statutes.

[¶ 22.] The State failed to make the case at trial that these counts were supported by separate underlying facts. On appeal, the brief of the State asserts in a footnote that

Here, the several injuries inflicted upon the victim occurred as part of the same incident. As argued, however, by the prosecuting attorney, “[i]t certainly is possible, conceivable for a person to commit a number of different crimes in one incident, and the State is alleging in this particular case.” The State would submit that the injuries to the victims head and face constituted “serious bodi ly injury” for purposes of an aggravated assault conviction. The jury obviously found that, while not constituting aggravated assault, the other injuries inflicted to the victim’s arm and legs amounted to abuse or torture of a minor.

(Emphasis added). We acknowledge the prosecuting attorney’s statement during arguments on the proposed instruction that a possibility exists that two incidents can occur in single transaction. As indicated, that statement is based on our holding in Biays. However, the record does not support the position emphasized in the above footnote in which the state submits that the head injury was separate from other injuries. There is no support in the record that this position was ever raised at trial or argued to the jury. Nor are we cited to any support in the record, or able to find any facts justifying separate charges. An assertion in a footnote on appeal does not satisfy this requirement.

[¶ 23.] Analyzing this issue, we look beyond the parties briefing and to our precedent concerning two convictions for the same crime. It is established law that a defendant cannot receive two convictions for one crime unless the legislature intended multiple punishments. See State v. Jensen, 579 N.W.2d 613, 625 (S.D.1998); State v. White, 1996 SD 67, 549 N.W.2d 676, 682 (1996); Wilcox v. Leapley, 488 N.W.2d 654, 657 (S.D.1992) (Wilcox II); State v. Johnston, 478 N.W.2d 281, 283 (S.D.1991). In Wilcox II, “the same facts and actions committed by Wilcox were used to convict him of [two] statutory offenses.” Wilcox II, 488 N.W.2d at 656. We unequivocally stated, “[a]t this time, we hold that double homicide convictions for a single death are improper.” Id. at 657. Likewise, in Johnston, we recognized that a single plan to steal numerous cattle was a single theft absent evidence that the defendant had a separate intent or plan. Johnston, 478 N.W.2d at 284. Given the absence of factual evidence or statutory authority, a jury conviction for multiple crimes cannot be supported. Without two separate factual incidents, or statutorily intended multiple punishments for the same facts, two convictions cannot stand.

[¶ 24.] The jury found Well guilty of aggravated assault and abuse. As discussed, these crimes are statutorily defined as mutually exclusive absent evidence supporting two distinct crimes. Therefore, it was an abuse of discretion for the trial court to deny alternative count instructions on aggravated assault and abuse. Simply choosing to sentence Well to one crime did not remedy this. To hold otherwise would impose two felony convictions for a single crime.

[¶ 25.] In issue 3, Well made a motion for judgment of acquittal on the conviction for aggravated assault. It should have been granted. Therefore, we reverse and remand for proceedings consistent with this opinion. In view of the fact that the trial court sentenced Well only for abuse, we vacate the conviction for aggravated assault and remand for determination by the trial court whether the improper conviction for aggravated assault had any effect on the imposed sentence. If it did, he should make an appropriate reduction in said sentence.

[¶ 26.] 3. WHETHER THE TRIAL COURT ERRED IN DENYING WELL’S MOTION FOR JUDGMENT OF ACQUITTAL ON THE CHARGE OF AGGRAVATED ASSAULT.

[¶ 27.] Well asserts that his motion for judgment of acquittal on aggravated assault should have been granted. We agree for the reasons stated under issue 2.

[¶ 28.] 4. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT WELL’S CONVICTION FOR ABUSE.

[¶ 29.] Given our disposition of issue 2, we will only address this contention as it relates to the sufficiency of the evidence for the conviction on abuse. Well argues that there is not sufficient evidence beyond a reasonable doubt to sustain a finding of guilt. To sustain the jury’s determination of guilt, the State was required to prove beyond a reasonable doubt that Well abused, tormented, exposed or cruelly punished a minor. SDCL 26-10-1. Viewing the evidence in light most favorable to the verdict, it is clear that ample evidence existed to support the jury’s determination. See Knecht, 1997 SD 53, ¶ 49, 563 N.W.2d 413, 421 (requiring us to determine the sufficiency of the evidence in the light most favorable to the verdict).

[¶ 30.] The testimony of the victim, eyewitness accounts, the physician’s testimony, and the defendant’s own statements to the arresting officers indicate that sufficient evidence existed to support a finding of guilt.

[¶ 31.] Therefore, we vacate the conviction for aggravated assault and remand for resentencing, if necessary, on the conviction for abuse consistent with this opinion.

[¶ 32.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP and GILBERTSON, Justices, concur.

      . During the questioning, Well maintained that “in his country of Sudan, that discipline is harsher than it is here.” The record reflects that Well had lived in the United States for nine years at the time of this incident and had been counseled on proper discipline techniques. Well is also a recent college graduate with a degree in Criminal Justice.

      . Describing the "pattern injury" Dr. Kaplan used the photographs to identify what he believed to have caused the injury.
      [T]he buckle has a remarkably similar curvilinear shape to the injuries themselves, and while when you are hitting somebody things don’t match exactly often, it has a very characteristic shape.... Maybe I can show you better, but if you look at the curve on this injury, and again there's also two parallel lines of injury, probably a separate blow, and you can almost — if you look at the belt itself, you can see the parallel to the curvilinear line and even a little piece here of injury which is consistent with where the, I don't know the name of the thing that goes to the hole in the belt, the little thing that goes through the hole in the belt I’ll call it, you can almost see that as part of this injury when you look at this and the picture.

      . In Biays, the State sought to distinguish the two counts from the outset by identifying the specific instances and injuries to which each count applied. There was no such attempt here. Biays, 402 N.W.2d at 700.

      . It is apparent a defendant can be convicted of aggravated assault and abuse or cruelty, if it were shown that two distinct crimes were committed.

      . The jury could reasonably have rejected the father’s accounts that the most serious injuries occurred from a fall against a table, given the victim’s statements that such an occurrence did not happen, and Dr. Kaplan's testimony that the injuries were consistent with a belt and buckle. The victim testified that he was hit in the back of the head and side of the face with the belt buckle.


author: KONENKAMP, Justice GILBERTSON, Justice

text:
    2000 SD 158
    Gretchen L. FAIRCLOTH, Claimant and Appellee, v. RAVEN INDUSTRIES, INC., Self-Insurer, Employer and Appellant.
    No. 21359.
    Supreme Court of South Dakota.
    Considered on Briefs Sept. 18, 2000.
    Decided Dec. 20, 2000.

      Philip R. Parent of Arneson, Issenhuth & Gienapp, Madison, SD, Attorneys for claimant and appellee.
    Paul T. Barnett of Siegel, Barnett & Schütz, Sioux Falls, SD, Attorneys for self-insurer, employer and appellant.
   KONENKAMP, Justice

[¶ 1.] In this workers’ compensation appeal, we must decide which of two statutes of limitations applies to a claim. The employer contends that the two-year limitation in SDCL 62-7-35 pertains because the employer gave written notice denying the claim. The employee, on the other hand, contends that the three-year period in SDCL 62-7-35.1 applies because the employer previously provided benefits to the employee. The Department of Labor ruled that the claim was barred under the two-year statute of limitations. On appeal, the circuit court reversed, applying the three-year statute. We conclude that the two-year statute controls and consequently the employee’s claim is barred under SDCL 62-7-35.

Background

[¶ 2.] The pertinent facts are not in dispute. In 1996, the employee, Gretchen L. Faircloth, was working for Raven Industries, Inc., at its plant in Madison, South Dakota. Raven is a self-insured employer. On July 1,1996, Faircloth submitted a first report of injury form, declaring an injury to her right upper extremity. After Fair-cloth filed her claim, Raven began paying workers’ compensation benefits. In September, Faircloth underwent an independent medical exam performed by Dr. Chris Tountas, M.D. Tountas informed Raven that, in his opinion, the injury to Fair-cloth’s right upper extremity was not work related. Based on this report, Raven sent Faircloth a notice letter on November 19, 1996:

[W]e are denying coverage of your claim from November 20, 1996 on, as your current condition did not arise within the scope and course of your employment with Raven Industries (Madison). Medical bills and compensation will be paid through November 20,1996. Medical bills after November 20, 1996 should be submitted to your personal health insurance for payment.
Should you disagree with our position, you have two (2) years to file a Petition for Hearing before the South Dakota Department of Labor pursuant to SDCL 62-7-12.

Faircloth received this denial within a day or two. The last medical benefit payment made on her behalf was for an October 15, 1996 visit to Dr. Van Demark. That payment was made on January 27, 1997. The last temporary total disability payment made to Faircloth was on November 20, 1996, for the period of November 3 to November 20,1996.

[¶ 3.] On May 17, 1999, Faircloth filed her petition for hearing. It was filed two and a half years after she received the denial notice from Raven and two years and four months after her last medical benefit payment. Raven asserted that Faircloth’s petition was barred under the two-year limitations period in SDCL 62-7-35. For the purpose of deciding the applicable statute, both sides stipulated to the relevant facts and submitted the question for decision. The Department ruled that Faircloth’s claim was time barred, applying the limitations period in SDCL 62-7-35. She appealed to the circuit court and it reversed, finding that SDCL 62-7-35.1 was the applicable statute of limitations. We granted Raven’s request for an intermediate appeal.

Analysis and Decision

[¶ 4.] As the facts in this case are undisputed, we have a plain question of statutory interpretation. The construction of workers’ compensation statutes and their application to the facts present questions of law reviewable de novo. Zoss v. Dakota Truck Underwriters, 1998 SD 23, ¶ 4, 575 N.W.2d 258, 260 (citing Johnson v. Rapid City Softball Ass’n, 514 N.W.2d 693, 695 (S.D.1994)); Vu v. John Morrell & Co., 2000 SD 105, ¶ 18, 615 N.W.2d 171, 175. Here, we consider two statutes of limitations: SDCL 62-7-35 and SDCL 62-7-35.1. The question is which one applies.

[¶ 5.] In South Dakota, “[t]he law in effect when the injury occurred governs the rights of the parties.” Vu, 2000 SD 105, ¶ 20, 615 N.W.2d, 171, 175 (citing Vaughn v. John Morrell & Co., 2000 SD 31, ¶ 13, 606 N.W.2d 919, 922)(further citations omitted). Faircloth’s claimed work injury occurred on July 1, 1996. Thus we must examine the relevant parts of the two statutes as they existed in 1996.

SDCL 62-7-35: The right to compensation under this title shall be forever barred unless a written request for hearing pursuant to § 62-7-12 is filed by the claimant with the department within two years after the self-insurer or insurer notifies the claimant and the department, in writing, that it intends to deny coverage in whole or in part under this title. If the denial is in part, the bar shall only apply to such part.
SDCL 62-7-35.1: In any case in which any benefits have been tendered pursuant to this title on account of an injury, any claim for additional compensation shall be barred, unless a claim is filed within three years from the date of the last payment of benefits....

[¶ 6.] Ultimately, the purpose of statutory interpretation is to fulfill the legislative dictate. See South Dakota Subsequent Injury Fund v. Federated Mut. Ins., Inc., 2000 SD 11, ¶ 13, 605 N.W.2d 166, 169 (citations omitted). Intent is ordinarily ascertained by examining the express language of the statute. Id. We therefore defer to the text where possible. Id. We read statutes as a whole along with the enactments relating to the same subject. Kayser v. South Dakota State Elec. Comm’n, 512 N.W.2d 746, 747 (S.D.1994) (citations omitted); Meyerink v. Northwestern Public Service, 391 N.W.2d 180, 183 (S.D.1986)(citing Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985)). We assume that the Legislature intended that no part of its statutory scheme be rendered mere surplusage. See 2A Norman J. Singer, Sutherland Statutory Construction § 46.07, 205 (6th ed.2000).

[¶ 7.] Reading each statute in isolation leads to contradictory conclusions. If SDCL 62-7-35 applies, Faircloth’s claim is barred, as her petition for hearing was not filed within two years of the time when Raven notified her that “it intended] to deny coverage in whole or in part....” SDCL 62-7-35. On the other hand, if SDCL 62-7-35.1 applies, Faircloth’s claim is timely because that statute provides a three-year limitations period in “any case in which any benefits have been tendered. ...” SDCL 62-7-35.1 (1996 Supp). Where two statutes appear to conflict, it is our duty to reasonably interpret both, giving “effect, if possible, to all provisions under consideration, construing them together to make them harmonious and workable.” Meyerink, 391 N.W.2d at 184 (citations omitted); Zoss, 1998 SD 23, ¶ 9, 575 N.W.2d at 261 (citations omitted).

[¶ 8.] These statutes can be harmonized. Each addresses a different situation. SDCL 62-7-35 provides the limitations period when an employer gives formal notice that it denies or disputes an employee’s claim, in whole or in part. Employers often accept responsibility for one part of a claim and deny responsibility for another. This statute places a two-year limit on claims that are formally denied. Conversely, SDCL 62-7-35.1 furnishes the limitations period when the employer provides the employee with benefits for a period of time, gives no denial notice, and then the matter lies inactive. In the latter circumstance, the employer has at least implicitly validated the employee’s claim, and the longer three-year period is warranted because the triggering event under SDCL 62-7-35.1 is simply a cessation of benefits without notice of a dispute.

[¶ 9.] Faircloth offers an alternative interpretation. She believes that SDCL 62-7-35 applies only in situations where no benefits have been paid, and SDCL 62-7-35.1 applies whenever any benefits have been paid. Yet to interpret the statutes in this fashion we must construe them in a way that renders part of a statute surplus-age. See Delano v. Petteys, 520 N.W.2d 606, 609 (S.D.1994) (citations omitted). Under Faircloth’s interpretation, the final sentence of SDCL 62-7-35 would be pointless. This sentence explains that where an employer’s denial of compensation regards only a part of the claim, the notice will trigger the statute of limitations for only that part. If SDCL 62-7-35.1 were interpreted consistent with Faircloth’s position, the statute of limitations would never run on the disputed part of a claim, unless the employer stopped paying benefits on the non-disputed part. We presume that the Legislature in enacting SDCL 62-7-35.1 had in mind its- companion § 62-7-35 and would not render a part of it meaningless. See Meyerink, 391 N.W.2d at 184 (citing State v. Feiok, 364 N.W.2d 536, 539 (S.D.1985)). To effect legislative intent we are bound to read our statutes sensibly if not literally. Providing expeditious benefits to injured employees, without jeopardizing an employer’s right to dispute a claim in part, furthers public policy in workers’ compensation. See Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993) (citations omitted).

[¶ 10.] Faircloth’s interpretation cannot be reconciled with the cardinal rule of statutory construction: repeal by implication is strongly disfavored. Morton v. Mancari et al., 417 U.S. 535, 549, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290, 300 (1974)(citing Posadas v. National City Bank of New York, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351, 355 (1936))(further citations omitted). Judges should refrain from negating a legislative act unless it is demanded by manifest necessity. See Karlen v. Janklow, 339 N.W.2d 322, 323 (S.D.1983) (citations omitted); see also The Federalist No. 78 (Alexander Hamilton)(absent a repealing clause the judiciary should reconcile statutes unless impracticable). Before judicially implying a repeal, the Legislature’s intent to do so must be apparent. Posadas, 296 U.S. at 503, 56 S.Ct. at 352, 80 L.Ed. at 355. Faircloth’s interpretation would, by implication, repeal the notice provisions of SDCL 62-7-35 by removing an employer’s notice of its practical effect. We should not annul these provisions when the two statutes can easily co-exist. Posadas, 296 U.S. at 504, 56 S.Ct. at 352, 80 L.Ed. at 355. See also Karlen, 339 N.W.2d at 323 (citations omitted).

[¶ 11.] Our interpretation is augmented by the precept that “terms of a statute relating to a particular subject will prevail over general terms in another statute.” Meyerink, 391 N.W.2d at 184. In arguing for application of the three-year statute of limitations, Faircloth relies heavily on the following language: “In any case in which any benefits have been tendered .... ” (emphasis added). See SDCL 62-7-35.1. This general language, however, should only be understood as affecting those cases, which are not within the more specific notice provision of SDCL 62-7-35. “In construing a particular ... term in a statute reference will be had to the meaning of the words with which it is associated.’’See Andreson v. Brink Elec. Co., 1997 SD 104, ¶ 6, 568 N.W.2d 290, 292 (quoting Kelley v. Duling Enters. Inc., 84 S.D. 427, 433, 172 N.W.2d 727, 730 (1969)).

[¶ 12.] Reversed.

[¶ 13.] MILLER, Chief Justice, and SABERS and AMUNDSON, Justices, concur.

[¶ 14.] GILBERTSON, Justice, dissents.

GILBERTSON, Justice

(dissenting).

[¶ 15.] I would affirm the circuit court. As such, I respectfully dissent. I do so because this Court fails to properly apply several rules of statutory interpretation.

[¶ 16.] When this Court examines workers’ compensation statutes, we start with the premise that when ambiguity is found, we liberally construe any ambiguity in favor of the injured claimant. Steinberg v. S. Dak. Dept. of Military, 2000 SD 36, ¶ 10 n. 1, 607 N.W.2d 596, 600 n. 1. “Language is ambiguous when it is reasonably capable of being understood in more than one sense.” Estate of Jetter, 1997 SD 125, ¶ 20, 570 N.W.2d 26, 30-31. The language at issue here is indeed ambiguous, as the two statutes, viewed separately, reach conflicting results, as is acknowledged by the Court. Therefore, we must liberally construe these statutes in favor of the claimant.

[¶ 17.] If SDCL 62-7-35 is applied, Faircloth’s claim is precluded by the two-year statute of limitation. However, if SDCL 62-7-35.1 is applied, her claim will survive under the three-year statute of limitation provided therein. It is settled law that “when one of two statutes of limitations may be applicable ... if there is any doubt as to which statute applies, such doubt should be resolved in favor of the longer limitation period.” Zoss v. Schaefers, 1999 SD 105, ¶ 11, 598 N.W.2d 550, 553 (emphasis added). I do not share the majority’s certainty that “no doubt over the limitations period exists.” When two statutes are ambiguous or conflict, doubt exists. In Zoss we found two conflicting statutes of limitations to be ambiguous. Because those statutes could be construed as both allowing and precluding the plaintiffs claim, we found that doubt existed as to which would apply. Id. Noting that each party’s arguments were equally valid, we applied the longer of the two limitations periods. Id. Like the situation in Zoss, each party here makes equally valid arguments over construction of these statutes. Therefore, as in Zoss, the longer statute of limitation should be applied.

[¶ 18.] In addition, “[w]hen the question is which of two enactments the legislature intended to apply to a particular situation, terms of a statute relating to a particular subject will prevail over the general terms of another statute.” Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539. WTiile the Court also applies this maxim, it has misapplied it in this instance. While focusing on the use of the term “any” in the phrase “any case in which any benefits have been tendered,” the Court improperly isolates it to the exclusion of the balance of the statute. Section 35.1 does not broadly apply to any and every workers’ compensation claim. It only applies to those cases where benefits have been paid. Rather, it is section 35 that applies to any and all workers’ compensation claims, where all or a portion of the claim for benefits has been denied from the outset of the claim. There is no limiting language in section 35 as exists in 35.1. Therefore, section 35 is the broader, more general of the two provisions, requiring us to apply the more specific terms found in section 35.1.

[¶ 19.] Further support for this conclusion is the principle that when two conflicting statutes pertain to the same subject matter, the more recent enactment prevails as the latest expression of legislative will. State v. Harris, 494 N.W.2d 619, 622 (S.D.1993); 2B Norman J. Singer, Sutherland Statutory Construction, § 51.02 at 193-94 (6th ed. 2000). Section 35 was enacted in its present form in 1980. SL 1980, ch. 365, § 3. In contrast, section 35.1 was enacted in 1995. S.L. 1995, ch. 299, §§ 1, 3. The last expression of our legislature provides for a three-year limitation period when benefits have been paid. Because section 35.1 is more recent and more specific than section 35, the three-year limitation period should apply. See Ferguson v. Modern Farm Systems, Inc., 555 N.E.2d 1379 (Ind.Ct.App.1990) (finding that a product liability statute of limitation governed because it was enacted more recently and had a narrower scope of coverage than the real estate improvement statute of limitation).

[¶ 20.] The Court also adds language to section 35.1. When it harmonizes the two sections, it states that section 35 applies when there has been a formal notice of denial by the employer, while section 35.1 applies when no denial notice is given. I find this distinction unpersuasive, as there is no language in section 35.1 to support this theory. When we apply legislative enactments, we determine intent “from what the legislature said, rather than from what we or others think it should have said.” S.D. Subseq. Injury Fund v. Federated Mut. Ins., Inc., 2000 SD 11, ¶ 13, 605 N.W.2d 166, 169. Section 35.1 simply states that “[i]n any case in which any benefits have been tendered ... any claim for additional compensation shall be barred, unless a claim is filed within three years from the date of the last payment of benefits.” The only triggering event in the statute is that benefits have been paid and have been discontinued. There is no requirement that benefits be denied without notice or without a dispute. To hold otherwise judicially adds language to section 35.1 that was not intended by the legislature.

[¶ 21.] For these reasons, I would apply the three-year statute of limitation found in section 35.1 and allow Faircloth’s claim to proceed. Therefore, I respectfully dissent.

      . In its findings of fact and conclusions of law, the Department recited the following conclusions of law: "That SDCL § 62-7-35 provides the relevant statute of limitations in the event that written notice of the intention to deny the claim is provided Lhe Claimant and the Department.” The Department additionally noted that such a conclusion was warranted based on "the plain meaning and effect” of these two statutes when read together with other enactments relating to the same subject.

      . This section goes on to provide:
      However, the time limitation of this section does not apply to claims for medical care or the replacement of medicine, crutches, ambulatory devices, artificial limbs, eyeglasses, contact lenses, hearing aids, and other apparatus, which medical care or apparatus are permanently or indefinitely required as the result of a compensable injury. The provision of such medical care or replacement of such items does not constitute payment of compensation so as to toll the running of the statute of limitations. See SDCL 62-7-35.1 (1996 Supp.).

      . In light of our conclusion that SDCL 62-7-35 and SDCL 62-7-35.1 can be harmonized, it is not necessary to reach Faircloth’s second argument. In that argument she asserts that where doubt exists on which of two statutes of limitations applies, such doubt should be resolved in favor of the longer limitations period. See Zoss, 1999 SD 105, ¶ 11, 598 N.W.2d at 553. This rule does not apply where after application of the rules of construction no doubt over the limitations period exists. Id.