author: ROSS, Judge.

text:
    STATE of Minnesota, Respondent, v. Michael John SUHON, Appellant.
    No. A06-1240.
    Court of Appeals of Minnesota.
    Dec. 4, 2007.

      Lori Swanson, Attorney General, St. Paul, MN, and Michael 0. Freeman, Hen-nepin County Attorney, Jean Elizabeth Burdorf, Assistant County Attorney, Minneapolis, MN, for respondent.
    John M. Stuart, State Public Defender, Sara Lynne Martin, Assistant Public Defender, Minneapolis, MN, for appellant.
    Considered and decided by ROSS, Presiding Judge; KALITOWSKI, Judge; and WORKE, Judge.
   OPINION

ROSS, Judge.

Michael John Suhon was accused of sexually assaulting his adopted daughter three times per week, fifty-two weeks per year, from the time the girl was about seven years old until she moved from his home soon after she turned 18. That is approximately one thousand, five hundred and sixty acts of vaginal penetration, oral sex, or sexually oriented fondling, throughout her entire childhood. The jury believed his daughter’s account, and the district court sentenced Suhon to three consecutive prison terms totaling 278 months, which is 1,282 months fewer than he would have been imprisoned if the court had sentenced him to only one month for each assault alleged, or 554 months fewer than if the court had sentenced him to just one month for each assault as more conservatively estimated by the district court at 832 total assaults against the child. Suhon’s appeal contends that the evidence does not support his conviction, that he was excessively charged with three counts of criminal sexual conduct, and that his sentence is illegally long. We conclude that the evidence supports the verdict, that the state acted within the scope of the statute and within its prosecutorial discretion by charging Suhon’s conduct in three separate counts, and that the district court did not abuse its discretion by imposing separate consecutive sentences for the three convictions. We therefore affirm.

FACTS

Appellant Michael Suhon was convicted of three counts of criminal sexual conduct for sexually abusing his adopted daughter, M.S. The abuse occurred over a ten-year period, from approximately 1994 to 2004.

According to M.S., Suhon began to sexually abuse her when she was seven or eight years old. The abuse began as sexual touching but quickly escalated to oral sex and, over M.S.’s complaints of pain, to vaginal intercourse. M.S. testified that Suhon subjected her to fondling and oral and vaginal intercourse regularly, approximately three times per week and in nearly every room of the family home. M.S. told no one of the sexual abuse while she was a child. After M.S. turned 18 and she moved from home, she told her mother, D.K. M.S. and D.K. then reported the abuse to police.

The state charged Suhon with two counts of first-degree criminal sexual conduct under Minnesota Statutes section 609.342, subdivision l(h)(iii), and one count of third-degree criminal sexual conduct under section 609.344, subdivision l(g)(iii). Count I covered the alleged abuse from June 1994 to July 31, 2000, when M.S. was eight years old until just after her 14th birthday. Count II covered the period of abuse from August 1, 2000, to June 27, 2002, ages 14 and 15. Count III covered the abuse from June 28, 2002, to June 27, 2004, ages 16 and 17. A jury returned a guilty verdict for all three counts of criminal sexual conduct. Rejecting Suhon’s argument that he was actually innocent and that his conduct constituted only one single behavioral incident under section 609.035, subdivision 1, the district court imposed permissive consecutive imprisonment sentences of 86 months, 144 months, and 48 months, for a total of 278 months’ incarceration. This appeal follows.

ISSUES

I. Was the evidence sufficient to convict Suhon of three counts of criminal sexual conduct?
II. Is the state restricted by limited statutory authority or prosecutorial discretion to charge a person with only one count of criminal sexual conduct for offenses committed during a ten-year span?
III. Did the district court clearly err when it found that the multiple sexual offenses constitutes more than one single behavioral incident or abuse its discretion when it imposed consecutive sentences?

ANALYSIS

I

Suhon continues to maintain his innocence on appeal by pointing to inconsistencies in testimony and the lack of forensic evidence of abuse. We review a claim of insufficiency of the evidence to determine whether a factfinder could reasonably conclude that the defendant is guilty of the offenses charged beyond a reasonable doubt in light of the facts in the record and all the legitimate inferences that can be drawn in favor of conviction from those facts. Davis v. State, 595 N.W.2d 520, 525 (Minn.1999). Inconsistencies in prosecution evidence do not require reversal. State v. Robinson, 604 N.W.2d 355, 366 (Minn.2000). This court assumes that the factfinder believed the state’s witnesses and disbelieved contrary evidence. State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001).

The facts in this record and the legitimate inferences discernible from those facts support the jury’s findings of guilt. Construing the evidence in favor of the verdict, we credit M.S.’s testimony that the abuse began when she was seven or eight years old and that it usually occurred two or three times each week until she left the home. See Minn.Stat. § 609.347, subd. 1 (2004) (stating a victim’s testimony alone may prove sexual assault without independent corroboration). Her testimony included supportive factual details. She described the initial assault, the frequency and location of the other assaults, and the force Suhon used if she resisted. She testified that Suhon was controlling; he spied on her during her lunch hour at school, followed her, and called her sexually derogatory names, like “slut” and “whore.” She testified that after she first menstruated and complained to Suhon that he might impregnate her, he exposed his vasectomy scar and explained that he had been “fixed.”

Witnesses corroborated aspects of M.S.’s testimony. Her friends testified that Suhon spied on M.S. during her lunch hour and that he called her names, and they testified that she appeared to be afraid of him. D.K. testified that she once found Suhon and M.S. in the bathroom together and that Suhon had an erection. D.K. told the jury that she was also suspicious because of Suhon’s control over M.S., his comments that M.S. and her friends were “hot,” not “used equipment” like D.K., and the way he would lie on the couch with M.S. She gave police pornographic films that she found in the room where Suhon reportedly most frequently sexually abused M.S. She also turned over a pornographic magazine that was addressed to “M. Suhon” and that depicted teenage girls.

Forensic evidence also supports the guilty verdict. A towel M.S. identified at trial as one that she and Suhon used to clean themselves after intercourse was tested for DNA. A Bureau of Criminal Apprehension analyst testified that M.S.’s DNA was on the towel and that seminal fluid found on the towel matched a forensic sample from Suhon to a high degree of probability.

Suhon’s contrary evidence does not compel a different outcome. The minor testimonial inconsistencies that Suhon highlights are insufficient to overcome our deference to the jury’s role to weigh the evidence. State v. Brocks, 587 N.W.2d 37, 42 (Minn.1998) (“The jury is in the best position to ... weigh the evidence.”). We acknowledge that Suhon’s appendix to his brief includes 16 clearly heartfelt letters from family members and acquaintances supporting his good character and expressing disbelief at the accusations of abuse. It also includes a letter from a polygrapher opining that Suhon’s denials were truthful. But letters of support are not evidence, and the polygraph results are also not admissible as evidence. See Minn. R. Evid. 404(a) (prohibiting use of character evidence to prove action in conformity with character); State v. Opsahl, 513 N.W.2d 249, 253 (Minn.1994) (holding that polygraph test results are inadmissible at trial). We hold that the jury received sufficient evidence to find that Su-hon was guilty of sexually abusing M.S. as alleged. We next address Suhon’s contention that the state abused its prosecutorial discretion by charging the offenses separately.

II

Suhon contends that the state lacked the authority to charge him with three counts after dividing the offending conduct into three separate periods, arguing that Minnesota Statutes sections 609.342, subdivision l(h)(iii), and 609.344, subdivision l(g)(iii), do not permit division of an extended period of abuse for multiple convictions, that the state abused its discretion by so charging him, and that the state’s charging decision violates due process because the statutory language did not fairly warn him that he might face multiple charges. All of Suhon’s arguments depend primarily on statutory construction. We review issues of statutory construction de novo. State v. Murphy, 545 N.W.2d 909, 914 (Minn.1996). Our goal on review is to give effect to the legislature’s intention. Auringer v. State, 695 N.W.2d 640, 643-44 (Minn.App.2005), review denied (Minn. July 19, 2005). We look primarily to the plain wording of the statute. U.S. Specialty Ins. Co. v. James Courtney Law Office, P.A., 662 N.W.2d 907, 910 (Minn.2003). We disagree with Suhon that the state lacks authority to charge a defendant with multiple counts under sections 609.342 and 609.344.

The state’s authority to charge Suhon with multiple counts depends on the meaning of one of the elements of first-degree criminal sexual conduct. Depending on the victim’s age, a person commits either first-degree or third-degree criminal sexual conduct by engaging in multiple acts of sexual abuse “committed over an extended period of time” with a minor who has a significant relationship with the offender. Minn.Stat. §§ 609.342, subd. l(h)(iii), 609.344, subd. l(g)(iii) (2006). Suhon contends that these statutes do not authorize dividing a continuous “extended period of time” into shorter, multiple periods of time and consequently charging separate counts for each segmented period. The contention is misdirected.

The statutes do not define “extended period of time,” and we accept the phrase as meaning what its general and plain terms imply. See Minn.Stat. § 645.08 (directing that words in a statute should be given common meaning). With that understanding, for our purposes both parties recognize that the ten years of abuse constitutes an “extended period of time” under the statutes. But it is equally important that Suhon does not dispute that the three charged periods that total the ten years of abuse each individually constitutes an “extended period” (about six years, two years, and two years, respectively). Cf. State v. Williams, 363 N.W.2d 911, 914 (Minn.App.1985) (affirming appellant’s conviction for first-degree intrafamilial sexual abuse, now incorporated into Minn.Stat. § 609.342, for acts occurring over a two-year period), review denied (Minn. May 1, 1985). So although Suhon is correct that the statute does not “explicitly provide for multiple convictions” by dividing a single “extended period of time” into several periods, he fails to consider that the statutes also do not explicitly or impliedly prohibit separately charging three offenses that could each independently constitute its own extended period of abuse. The same calendar of events that Suhon relies on to support his characterization that the charges have effectively divided a single extended period into three, also supports the alternative conclusion that the counts have merely aligned three separately chargeable consecutive extended periods that in this case happen to be contiguous.

Considered another way, Suhon’s theory would lead to the absurdity that more intensive and active sex offenders would be charged more leniently than those who exercise periodic restraint. By his reasoning, if Suhon had sexually abused his daughter only half as many times by remaining entirely abuse-free during every other year, for example, he would have faced five counts under the statutes for his abuse during the five discretely severable “extended periods” of one-year each, while the uninterrupted ten years of abuse that he actually perpetrated would result in but one count. That “the legislature did not ... limit ... the length of time that could be appropriately included in one offense,” as he argues, is therefore not controlling. More important here than the fact that ten years might constitute a single extended period is that six years and two years also individually constitute extended periods. Suhon does not argue that the statutes generally preclude charging a defendant with separate counts for each extended period of abuse. We hold that sections 609.342, subdivision l(h)(iii) and 609.344, subdivision l(g)(iii), which permit the state to charge multiple counts for each extended period of abuse, do not preclude multiple charges merely because the multiple periods might alternatively constitute a single, longer period.

We next consider Suhon’s argument that charging him with separate counts was an abuse of prosecutorial discretion. The state contends that Suhon waived this argument by failing to raise it before sentencing. Failure to raise issues at trial generally constitutes waiver of those issues on appeal. State v. Beard, 288 N.W.2d 717, 718 (Minn.1980). But Suhon did raise the argument at his sentencing, asserting that the state impermis-sibly severed his offense into identical charges for separate time periods. Because we find that Suhon raised the argument, we address the state’s discretion to charge him with multiple counts of criminal sexual conduct.

The executive branch determines whom to prosecute and what to charge. Johnson v. State, 641 N.W.2d 912, 917 (Minn.2002). In the absence of limiting statutory language, a court gives deference “to the prosecutor’s discretion to evaluate the facts of a case, which may lead to various combinations of charges, and to select the particular charges best suited to achieve justice.” State v. Richardson, 633 N.W.2d 879, 884 (Minn.App.2001). A court generally should not interfere with the state’s charging decision. State v. Foss, 556 N.W.2d 540, 540 (Minn.1996); State v. Perleberg, 736 N.W.2d 703, 706 (Minn.App.2007), review denied (Minn. Oct. 16, 2007). Judicial interference should be rare and occur only when an injustice results because the prosecutor has clearly abused her discretion in exercising the charging function. Foss, 556 N.W.2d at 541. Suhon has not demonstrated an abuse of discretion.

In a dispute decided after we received the briefing in this case, we rejected a similar challenge to a prosecutor’s charging decision. In Perleberg, as here, the appellant contested the state’s decision to charge multiple counts for criminal sexual conduct. Perleberg, 736 N.W.2d at 706. The appellant in that case sexually abused his daughter on more than 250 occasions, often in the family home. Id. The prosecutor charged him with six counts of abuse, including two under section 609.342, subdivision l(h)(iii). This court highlighted the prosecutor’s broad charging discretion and held that the state’s charging decision did not render the conviction infirm. Su-hon abused his daughter on at least 600 more occasions than the abuser in Perle-berg abused his daughter. We see no abuse of discretion by the prosecutor’s decision to charge Suhon with two counts of first-degree criminal sexual conduct and one count of third-degree criminal sexual conduct.

We also are unpersuaded by Suhon’s contention that the state’s charging decision violated due process because Suhon lacked fair warning that he could be charged with three counts of criminal sexual conduct. The concept of fair warning stems from the Due Process Clause, and its underlying principle is that no one “shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed.” Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964) (quotation omitted). Minnesota Statutes sections 609.342 and 609.344 unequivocally prohibit sex with a child. As Suhon accurately concedes, the state could have charged him with one count of abuse under other provisions of the statutes for each time that he sexually assaulted his daughter. Suhon’s no-fair-warning contention fails. We turn last to his sentencing challenge.

III

Suhon contends that because his conduct constitutes a single behavioral incident, the district court abused its discretion when it sentenced him consecutively for each of the three offenses for which he was convicted. We disagree with his characterization of the offenses. When a single behavioral incident results in the violation of multiple criminal statutes, the offender may be punished only for the most severe offense. Minn.Stat. § 609.035, subd. 1 (2006). This avoids exaggerating the criminality of the defendant’s conduct and makes both punishment and prosecution commensurate with culpability. State v. Johnson, 653 N.W.2d 646, 651-52 (Minn.App.2002). In determining whether multiple offenses arise from a single behavioral incident, the court must consider whether the offenses (1) arose from a continuous and uninterrupted course of conduct, (2) occurred at substantially the same time and place, and (3) manifested an indivisible state of mind, or were motivated by a single criminal objective. Id.; State v. Soto, 562 N.W.2d 299, 304 (Minn.1997). The district court’s finding that Suhon’s offenses did not constitute a single behavioral incident is a factual determination, which this court reviews for clear error. Effinger v. State, 380 N.W.2d 483, 489 (Minn.1986).

The district court did not clearly err by finding that Suhon’s abusive acts did not constitute a single behavioral incident. We highlight that the analysis focuses on the three offenses charged, not on the hundreds of individual acts of sex abuse, since the many acts were collectively charged as only three offenses within three identified periods of abuse. But even if we were to consider the acts individually, Suhon’s argument is not persuasive. The incidents of sex abuse here occurred on a regular basis, but they do not combine to form a continuous course of conduct. Multiple acts against the same victim do not constitute a single behavioral incident when the individual acts are separated by time and place. State v. Secrest, 437 N.W.2d 683, 685 (Minn.App.1989), review denied (Minn. May 24, 1989). Here, days passed between the incidents, and sometimes up to a week. Although the abuse always occurred in the Suhon home, it happened in many different rooms and at different times. See State v. McLemore, 351 N.W.2d 927, 928 (Minn.1984) (rejecting single-behavioral-incident argument and affirming sentence for three separate counts of criminal sexual conduct for three separate contacts during one weekend); State v. Stevenson, 286 N.W.2d 719, 720 (Minn.1979) (affirming sentence for two counts of criminal sexual conduct for two contacts five hours apart). And this court has held under similar facts that “motivation by perverse sexual desires” is too broad to constitute a single criminal objective. Secrest, 437 N.W.2d at 685. Suhon’s abuse did not constitute a single behavioral incident, and we hold that the abuse in three periods charged in separate counts covering different segments of the victim’s childhood is not a single behavioral incident.

Permissive consecutive sentences are therefore appropriate. When the district court has discretion to impose consecutive sentences, we will uphold the sentences unless they are “disproportionate to the offense or unfairly exaggerate! ] the criminality of the defendant’s conduct.” Perleberg, 736 N.W.2d at 705. The sentencing guidelines provide that consecutive sentences are permissive for multiple felony convictions of first-degree criminal sexual conduct and third-degree criminal sexual conduct, even when the offenses involve a single victim and a single course of conduct. Minn. Sent. Guidelines II. F, cmt. II.F.04, IV. The district court considered the nature of Suhon’s offenses and the impact on the victim. The district court judge opined that in 36 years of experience, he had never seen such egregious sexual misbehavior as Suhon’s estimated 832 acts of sexual abuse on his daughter. .In Perleberg, we rejected a similar disproportionality argument, upholding a prison sentence that was 154 months longer than Suhon’s sentence and on a father who perpetrated less than one-third Suhon’s number of assaults. 736 N.W.2d at 705. The district court acted within its discretion when it found that Suhon’s 278-month sentence is not disproportionate to his offense and does not exaggerate the criminality of his conduct.

DECISION

We affirm the conviction and sentence. The evidence supports the jury’s guilty verdict. Sections 609.342, subdivision l(h)(iii), and 609.344, subdivision l(g)(iii), permit multiple counts for separable extended periods of abuse even when those periods might alternatively be combined to constitute a single, longer extended period. The prosecutor acted within his discretion by charging Suhon with , three counts of criminal sexual conduct, for the multiple abuses over three identified periods. Su-hon had ample statutory notice of the offending conduct and the consequences for sexually abusing a child, resolving his due process challenge. And the district court acted within its discretion when it imposed three consecutive sentences totaling 278 months in prison.

Affirmed.

      . We recognize also that the victim's change in age can account for one of the two breaks in the ten-year period by application of sections 609.342 and 609.344.’


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2007 ND 186
    Interest of B.D.K. Adam Miller, PSY.D., Petitioner and Appellee v. B.D.K., Respondent and Appellant.
    No. 20070320.
    Supreme Court of North Dakota.
    Dec. 5, 2007.

      Gary E. Euren, Assistant State’s Attorney, Fargo, for petitioner and appellee.
    Douglas W. Nesheim, Fargo, for respondent and appellant.
   MARING, Justice.

[¶ 1] B.K. appeals a district court order involuntarily committing him to the North Dakota State Hospital for ninety days. We affirm.

I

[¶ 2] B.K. has been diagnosed with schizoaffective disorder-bipolar and antisocial personality disorder. On October 1, 2007, the district court committed B.K. to the State Hospital for ninety days.

[¶ 3] The record .reveals that, on September 10, 2007, B.K. was kicked out of two downtown Fargo businesses, one of which was a bar, for being disruptive and threatening. B.K. called his family in an attempt to acquire his father’s guns. He talked about the CIA, “horsemen,” and demanded to see a federal judge. B.K. was brought to the emergency room by law enforcement officers and Southeast Human Services employees. He was admitted to MeritCare in Fargo. He was transferred to the North Dakota State Hospital on September 12. The State Hospital admission form reported his hospitalization was necessary for safety, because B.K. acted psyehotically and tried to access weapons. The form also stated that B.K. was too violent and psychotic at the time of his admission to be placed in the community.

[¶ 4] On September IB, Dr. William Pryatel, a staff psychiatrist at the State Hospital, completed a report of examination. The report concluded B.K. is a mentally ill person. The report provided that a serious risk of harm to B.K., others, or property exists. According to the report, there is also a substantial likelihood of B.K. killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats. Finally, the report provided that B.K. faces a substantial likelihood of substantial deterioration in physical health, or substantial injury, disease, or death resulting from poor self-control or judgment in providing for shelter, nutrition, or personal care.

[¶ 5] Dr. Pryatel prepared a report assessing the availability and appropriateness of alternate treatment on September 25. The report listed case management, psychiatrist appointments, and medication management by Southeast Human Services as treatment programs considered for B.K. Dr. Pryatel concluded that an alternate treatment program would not be sufficient to meet B.K’s treatment needs because he is very delusional, verbally and physically threatening, aggressive, uncooperative, and unable to care for himself and attend to his activities of daily living. Dr. Pryatel also concluded alternate treatment would not prevent the danger to self, others, or property presented by B.K. because he is not cooperative at the State Hospital, he trashed his apartment, he was not caring for his dog, and he , was not attending to his finances or taking his medications.

[¶ 6] The record indicates that B.K. is taking a series of medications at the State Hospital. Some of the medications are taken on a regular basis and some are p.r.n. medications. The abbreviation “p.r.n.” stands for the Latin term “pro re nata,” which means “as the occasion arises; when necessary.” PDR Medical Dictionary 1445 (2d ed. 2000). The drugs taken on a regular basis include Cogentin, Topi-ramate, Propranolol, Seroquel, Hydrodiur-il, and Zydis. The p.r.n. drugs taken to calm B.K. and stabilize his mood include Vistaril, Loxapine, and Zydis.

[¶ 7] B.K. waived his right to a preliminary hearing. A treatment hearing was held before District Court Judge Steven McCullough on October 1, 2007. Only Dr. Pryatel and B.K. testified at the hearing. Dr. Pryatel, who testified he was familiar with B.K. because he has been admitted to the State Hospital on several prior occasions, said B.K. had been decompensating for several weeks prior to the incident in Fargo on September 10. Decompensation is “[t]he appearance or exacerbation of a mental disorder due to failure of defense mechanisms.” PDR Medical Dictionary 462 (2d ed. 2000).

[¶ 8] Dr. Pryatel testified that B.K. has improved since his admission to the State Hospital, but still experiences delusions. Dr. Pryatel testified that B.K.’s delusions have included statements about Russians being at the Canadian border, claims that his father killed John F. Kennedy, statements about flying saucers, claims he has been sent by God as Apollo, and statements that Mark the archangel kicked in his apartment door. Dr. Pryatel testified that, in order to settle down, B.K. requires p.r.n. medications, and B.K. sleeps only three to four hours per night.

[¶ 9] B.K. testified he saw Jesus Christ in a vision when he was in fifth grade, and a light that appeared at that time “screwed him up.” He asserted FBI agents tried to drown him in a prison shower because of God’s light. He claimed other patients at the State Hospital hit him, but he knows better than to hit back. He testified his father shot John F. Kennedy and Martin Luther King. He further testified that his father told him he would be safe only in Chicago. He claimed to know a man in Russia who was in a Missouri prison and who blew out some windows in New York to get a Japanese girl to get B.K. B.K. asserted that this man would make a life for him in Russia, where he will have a home and can go swimming.

[¶ 10] In his testimony, B.K. disputed the reason for being initially picked up in downtown Fargo and admitted to Merit-Care. B.K. testified that the events leading to his involuntary commitment began when he told a Marine at the Empire Bar that the man was an old seal. B.K. asserted he went into the bar parking lot and peacefully finished his drink, after which he returned the drink glasses to the bar. He said he asked his family for guns so that he could sell them and use the proceeds to get to Russia. He testified he would stay on his medications if released from the State Hospital. B.K. asserted he is not a danger to others. B.K. testified that he has not been violent while at the State Hospital. He said he was unwilling to work with Southeast Human Services, but would be willing to hire his own psychiatrist. If he were released, he testified his plan would be to get his golden lab back and do drywall work in Fargo.

[¶ 11] At the hearing, Judge McCullough found by clear and convincing evidence that B.K. is a mentally ill person. Judge McCullough labeled B.K’s case a close one, but concluded there is adequate evidence showing B.K. is a person requiring treatment because of a substantial likelihood he will be a danger to others and that his mental health will deteriorate significantly if no treatment is received. Judge McCullough found B.K. may have been a danger to others when he engaged in the alleged delusional and disruptive behavior in downtown Fargo that led to his hospitalization at MeritCare. Based on B.K’s unwillingness to work with Southeast Human Services, Judge McCullough concluded there is no less restrictive alternative treatment available. An order for hospitalization and treatment signed by District Court Judge Georgia Dawson committed B.K. to the State Hospital for ninety days.

[¶ 12] B.K. appealed the district court order. We temporarily remanded this matter to the district court under N.D.R.App.P. 35(a)(3) instructing that either Judge McCullough file written findings of fact, conclusions of law, and order following treatment or continuing treatment hearing, or Judge Dawson certify compliance under N.D.R.Civ.P. 63. On remand, Judge McCullough made and filed with this Court findings of fact, conclusions of law, and order. On appeal, B.K. requests reversal of the district court order and dismissal of the petition for involuntary commitment. Alternately, B.K. requests that the matter be remanded with instructions to order a less restrictive treatment.

II

[¶ 13] Review of an appeal under N.D.C.C. ch. 25-03.1 is limited to a review of the procedures, findings, and conclusions of the district court. N.D.C.C. § 25-03.1-29; Interest of D.A., 2005 ND 116, ¶ 11, 698 N.W.2d 474. “Balancing the competing interests of protecting a mentally ill person and preserving that person’s liberty, requires trial courts to use a clear and convincing standard of proof’ while this Court uses “the more probing clearly erroneous standard of review.” Id. “A trial court’s finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence this Court is left with a definite and firm conviction it is not supported by clear and convincing evidence.” Id. (citation omitted).

Ill

[¶ 14] On appeal, B.K. argues the district court erred in finding there was clear and convincing evidence to support an order for involuntary in-patient treatment under N.D.C.C. ch. 25-03.1. B.K. further argues the district court erred in not ordering less restrictive treatment. The State Hospital argues the district court did not err in finding clear and convincing support for involuntary treatment of B.K. The State Hospital also argues the district court did not err in refusing to order less restrictive treatment for B.K.

[¶ 15] In commitment proceedings, the burden of proof is on the petitioner to prove by clear and convincing evidence the respondent is a “person requiring treatment.” In re H.G., 2001 ND 142, ¶ 4, 632 N.W.2d 458. The respondent is presumed to not require treatment. Id. Only an individual who is a “person requiring treatment” may be involuntarily admitted to the state hospital or another treatment facility. N.D.C.C. § 25-03.1-07. Proof that an individual will merely benefit from treatment does not satisfy this standard. In Interest of M.B., 467 N.W.2d 902, 904 (N.D.1991). The statutory definition of a “person requiring treatment” is provided in N.D.C.C. § 25-03.1-02(12):

“Person requiring treatment” means a person who is mentally ill or chemically dependent, and there is a reasonable expectation that if the person is not treated there exists a serious risk of harm to that person, others, or property. “Serious risk of harm” means a substantial likelihood of:
a. Suicide, as manifested by suicidal threats, attempts, or significant depression relevant to suicidal potential;
b. Killing or inflicting serious bodily harm on another person or inflicting significant property damage, as manifested by acts or threats;
c. Substantial deterioration in physical health, or substantial injury, disease, or death, based upon recent poor self-control or judgment in providing one’s shelter, nutrition, or personal care; or
d. Substantial deterioration in mental health which would predictably result in dangerousness to that person, others, or property, based upon evidence of objective facts to establish the loss of cognitive or volitional control over the person’s thoughts or actions or based upon acts, threats, or patterns in the person’s treatment history, current condition, and other relevant factors, including the effect of the person’s mental condition on the person’s ability to consent.

[¶ 16] Determining whether someone is a “person requiring treatment” is a two-step process. In re H.G., 2001 ND 142, ¶ 4, 632 N.W.2d 458. “First, the court must find that the individual is mentally ill, and second, the court must find that there is a reasonable expectation that if the person is not hospitalized there exists a serious risk of harm to himself, others, or property.” Id. (citation omitted). “Direct evidence of overt violence or an expressed intent to commit violence are not required” for a court to find clear and convincing evidence to support a finding that an individual poses a serious risk of harm. In re D.P., 2001 ND 203, ¶ 9, 636 N.W.2d 921.

[¶ 17] An individual who is a “person requiring treatment” has a right to be submitted to the least restrictive treatment option under N.D.C.C. § 25-03.1-21(1), which provides:

Before making its decision in an involuntary treatment hearing, the court shall review a report assessing the availability and appropriateness for the respondent of treatment programs other than hospitalization which has been prepared and submitted by the state hospital or treatment facility. If the court finds that a treatment program other than hospitalization is adequate to meet the respondent’s treatment needs and is sufficient to prevent harm or injuries which the individual may inflict upon the individual or others, the court shall order the respondent to receive whatever treatment other than hospitalization is appropriate for a period of ninety days.

A two-part inquiry is used to determine the availability of a less restrictive alternative treatment. See In re M.M., 2005 ND 219, ¶ 12, 707 N.W.2d 78. First, the court asks whether treatment other than hospitalization is adequate to meet the individual’s needs. Id. Second, the court asks “whether an alternative treatment program is sufficient to prevent harm or injuries which the individual may inflict upon himself or others.” Id.

IV

[¶ 18] B.K. argues he is not a person requiring treatment under N.D.C.C. § 25-03.1-02(12). Because the parties do not dispute that B.K. is mentally ill, B.K. meets the first part of the test to determine whether he is a person requiring treatment. The second question is whether there is a reasonable expectation that if B.K. is not hospitalized there exists a serious risk of harm to himself, others, or property. The district court found clear and convincing evidence that B.K. is a person requiring treatment because of a substantial likelihood he will be a danger to others and that his mental health will deteriorate significantly if no treatment is received. In the context of determining whether an individual is a person requiring treatment, we have previously said that “[w]hen one or more reasonable inferences can be drawn from credible evidence, this Court must accept the inferences drawn by the trial court.” In re M.M., 2005 ND 219, ¶ 11, 707 N.W.2d 78 (citation omitted).

[¶ 19] The evidence in the record and the testimony at B.K.’s commitment proceeding permit reasonable inferences to be drawn in support of the district court’s finding. In B.K.’s testimony, he acknowledges his involvement in the altercation in Fargo. While B.K. asserts he wanted access to guns only to sell the guns and use the profits therefrom, he does not deny that he sought possession of guns following the altercation. B.K. exhibited delusional thoughts during his testimony. The State Hospital has to administer p.r.n. drugs to B.K. in order to stabilize his mood. Dr. Pryatel provided expert testimony that B.K. is delusional, had been decompensat-ing for a period of time before being admitted to the State Hospital, is getting inadequate sleep, and poses a danger to himself or others. Dr. Pryatel testified that not hospitalizing B.K. would be “risky,” and Dr. Pryatel cannot be sure B.K. would take his medications. There is a reasonable expectation that if B.K. is not hospitalized there exists a serious risk of harm to himself, others, or property. Thus, B.K. meets the second part of the test to determine whether he is a person requiring treatment.

[¶ 20] We conclude the district court’s findings that B.K. is a person requiring treatment because of a substantial likelihood he will be a danger to others and that his mental health will deteriorate significantly if no treatment is received are not clearly erroneous.

Y

[¶ 21] B.K. further argues hospitalization is not the least restrictive treatment option available under N.D.C.C. § 25-03.1-21(1). The two-part inquiry to determine the availability of a least restrictive alternative treatment requires consideration of whether treatment other than hospitalization is adequate to meet B.K’s needs and whether a less restrictive alternative treatment is sufficient to prevent the harm or injuries B.K. may inflict upon himself or others. The district court found there was no less restrictive alternative than hospitalization adequate to treat B.K.

[¶22] The district court’s finding that there is no less restrictive alternative than hospitalization adequate to treat B.K. is supported by clear and convincing evidence from the record. The report assessing the availability and appropriateness of alternate treatment listed case management, psychiatrist appointments, and medication management by Southeast Human Services as alternate treatment programs considered for B.K. The report concluded none of these alternate treatments would be sufficient to meet B.K.’s needs, nor would they prevent the danger to self, others, or property presented by B.K. At the treatment hearing, Dr. Pryatel testified that he was uncomfortable with the idea of discharging B.K. back into the community, and that B.K. is “just not good enough yet” to be treated in a less restrictive manner. He also testified that he cannot be sure B.K. would take his prescribed medications if he is not hospitalized. Dr. Pryatel said there are improvements that need to be made before B.K. would be able to function in the community: He should sleep five to six hours per night, require p.r.n. medications less frequently, and make fewer delusional comments. The district court’s finding that there is no less restrictive alternative than hospitalization adequate to treat B.K. was not clearly erroneous.

[¶ 23] B.K. contends that the district court impermissibly required his hospitalization on the basis that B.K. is unwilling to cooperate with Southeast Human Services. B.K. asserts he would find his own psychiatrist and take his medications as prescribed. The State Hospital established, by clear and convincing evidence, that B.K. is a mentally ill individual requiring in-patient treatment. B.K’s bare assertion that he would get his own psychiatrist does not constitute a viable alternative to hospitalization requiring the district court to order less restrictive treatment. B.K. provided no details regarding how he would go about locating a psychiatrist or how he would pay for such treatment. Moreover, several of his medications are taken on an as-needed basis, and there was no indication he would be able to administer those medications on his own.

[¶24] We conclude the district court’s finding that there is no less restrictive alternative than hospitalization adequate to treat B.K. is not clearly erroneous.

VI

[¶ 25] We affirm the district court’s order involuntarily committing B.K. to the North Dakota State Hospital for ninety days.

[¶ 26] GERALD W. VANDE WALLE, C.J., DANIEL J. CROTHERS, DALE V. SANDSTROM, and CAROL RONNING KAPSNER, JJ., concur.


author: SABERS, Justice.

text:
    2007 SD 118
    Vanessa L. MUDLIN, Plaintiff and Appellant v. HILLS MATERIALS COMPANY, a South Dakota Corporation, Oldcastle Materials South Dakota, Inc., Oldcastle Materials, Inc., a Delaware Corporation; Oldcastle Inc., a Delaware Corporation, and Liberty Mutual Insurance Company, Defendants and Appellees.
    No. 24339.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2007.
    Decided Nov. 14, 2007.

      G. Verne Goodsell of Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, and William Jason Groves of Groves Law Office, Rapid City, for appellant.
    Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP, Rapid City, and John Fornaciari of Sheppard, Mullin, Richter & Hampton, LLP, Washington, DC, for appellees Hills and Oldcastle et al.
    Gary D. Jensen of Beardsley, Jensen and Von Wald, Rapid City, and Terrence R. Joy, Jason W. Pfeiffer, Daniel W. Berg-lund of Robins, Kaplan, Miller & Ciresi, LLP, Minneapolis, MN, for appellees Liberty.
   SABERS, Justice.

[¶ 1.] Vanessa L. Mudlin brought suit against her employer Hills Materials Company (Hills) and its insurer Liberty Mutual Fire Insurance Company (Liberty Mutual) for bad faith, breach of contract, barratry, abuse of process, intentional infliction of emotional distress and punitive damages. Hills moved for summary judgment, which was granted. Mudlin appeals. We affirm.

FACTS

[¶ 2.] This case arises out of the denial of Mudlin’s workers’ compensation benefits. Mudlin was employed by Hills as a flagger, laborer, and material spreader. Around 5:30 a.m. on June 7, 1999, Mudlin arrived at the quarry in Rapid City, South Dakota, which was Hills’ base location. Having discovered her work crew already left, she drove her personal vehicle to that day’s work site near Faith, South Dakota. Between Newell and Faith, Mudlin fell asleep, rolled her vehicle, incurred substantial personal injury and was hospitalized for several weeks.

[¶ 3.] Mudlin returned to work on August 16, 1999. She later resigned on July 3, 2001. Five months after she resigned, she filed a claim for workers’ compensation benefits against Hills and its insurer, Liberty Mutual. A hearing was held by the Department of Labor, which ruled in favor of Mudlin. Hills appealed to the circuit court, which agreed with the Department. On appeal, this Court affirmed in Mudlin v. Hills Materials Company, 2005 SD 64, ¶ 1, 698 N.W.2d 67, 70 (Mudlin I).

[¶ 4.] Mudlin sued Hills, its owners Oldcastle Materials, Inc. and Oldcastle, Inc. and Hills’ insurer, Liberty Mutual, alleging bad faith in their denial of her workers’ compensation benefits. Hills moved for summary judgment arguing a reasonable basis for denial of benefits existed; thus, Mudlin’s bad faith claim failed as a matter of law. The circuit court ruled in favor of Hills and Mudlin appeals raising the following issues:

1. Whether the circuit court erred when it found the denial of benefits was fairly debatable.
2. Whether the circuit court erred in granting summary judgment based on a case defendants did not cite until appeal to the circuit court.
3. Whether the circuit court’s ruling is consistent with the purposes of workers’ compensation law.

STANDARD OF REVIEW

[¶ 5.] The facts of this case are undisputed. Therefore, the “facts do not present a genuine issue of material fact but raise a legal question as to whether the facts constitute bad faith.” Phen v. Progressive N. Ins. Co., 2003 SD 133, ¶ 25, 672 N.W.2d 52, 59. “[T]his is ... a legal question to be determined de novo.” Id.; see Culhane v. W. Nat’l Mut. Ins. Co., 2005 SD 97, ¶ 32, 704 N.W.2d 287, 301 (reversing the trial court’s authorization to proceed with a bad faith claim because the insurer did not act in bad faith denying the claim).

[¶ 6.] 1. Whether the circuit court erred when it found Hills’ denial of benefits was fairly debatable.

[¶ 7.] In a bad faith case, “the insured must show an absence of a reasonable basis for denial of policy benefits [or failure to comply with a duty under the insurance contract] and the knowledge or reckless disregard [of the lack] of a reasonable basis for denial.” Phen, 2003 SD 133, ¶ 24, 672 N.W.2d at 59 (citing Stene v. State Farm Mut. Auto. Ins. Co., 1998 SD 95, ¶ 19, 583 N.W.2d 399, 403) (additional citations omitted). However, “[a]n insurance company is entitled to challenge claims which are fairly debatable and will be found liable only where it has intentionally denied ... a claim without a reasonable basis.” Id.

[¶ 8.] In order to receive workers’ compensation benefits, “[a] claimant must prove by a preponderance of the evidence that she sustained an injury ‘arising out of and in the course of the employment.’” Mudlin, 2005 SD 64, ¶7, 698 N.W.2d at 71 (citing SDCL 62-1-1(7); Norton v. Deuel Sch. Dist., 2004 SD 6, ¶ 7, 674 N.W.2d 518, 520). “Generally, employees injured while going to and coming from work are not covered under workers’ compensation.” Id. (citing S.D. Pub. Entity Pool for Liab. v. Winger, 1997 SD 77, ¶ 19, 566 N.W.2d 125, 131 (stating the “going and coming” rule)). Hills argues that the denial of benefits in this case presented several issues of first impression in South Dakota regarding the going-and-coming rule, such as:

[Wjhether a customary, but not required, appearance at the office before travel to a job site was a basis for an exception to the going-and-coming rule; whether nominal pay for travel to a job site, but not return from the job site, was a basis for an exception to the rule; whether commencement of wages only at a specified time at the job site for work actually performed upon arrival was dispositive in application of the rule.

Additionally, Hills claims courts have uniformly held that where an insurer denies a claim based on an issue of first impression, an insurer does not engage in bad faith. Therefore, it argues Mudlin’s bad faith claim must fail.

[¶ 9.] Mudlin claims that her travel between the base location and the remote job site was “an activity that is expressly authorized by [Hills].” She argues that it is settled law that when an employee is carrying out an act expressly authorized by the employer, that employee is within the course and scope of employment. Therefore, Mudlin argues that this is not a matter of first impression, Hills denied her claim without a reasonable basis to do so, and the circuit court erred by granting summary judgment.

[¶ 10.] However, it is clear that the arguments before the Department, the circuit court and this Court during the workers’ compensation proceedings involved the going-and-coming rule and any potential exceptions thereto. Hills cited cases from different jurisdictions that held nominal payment is not enough to bring the employee’s action outside of the going-and-coming rule, even when the employee was expressly authorized to drive their personal vehicle. See Mitchell v. Pleasant Hill Gen. Hosp., Inc., 491 So.2d 183, 185 (La.Ct.App.1986); Ricciardi v. Aniero Concrete Co. Inc., 64 N.J. 60, 312 A.2d 139, 141 (1973); Madaras v. Chinigo, 131 N.J.Super. 314, 329 A.2d 592, 594-95 (L.1974); Jourdan v. State Indus. Ins. Sys., 109 Nev. 497, 853 P.2d 99,101-02 (1993); Byrd v. Stackhouse Sheet Metal Works, 317 S.C. 35, 451 S.E.2d 405, 407 (Ct.App.1994).

[¶ 11.] Furthermore, in the eyes of the employer, Mudlin was driving to work from home, as they argued she was not required to drive to the quarry before leaving for the remote jobsite, and would be -within the going-and-coming rule. See Mudlin I, 2005 SD 64, ¶ 3 n. 1, n. 2, 698 N.W.2d at 70 n. 1, n. 2 (noting that although it was common company practice for employees to meet at the quarry before traveling to remote work sites, Mudlin’s supervisor testified meeting at the quarry was not required and employees typically drove their personal vehicles).

[¶ 12.] Additionally, in the cases that deny benefits based on the going-and-coming rule, despite nominal payment, the employer also expressly authorized the employee to drive his personal vehicle and receive reimbursement. For example, Hills references Rieciardi, 64 N.J. 60, 312 A.2d 139, to support its denial of benefits. In Rieciardi, the employee was reimbursed for the tolls he encountered on his way to and from work. This was approximately 40% of his commuting costs. The employee was injured on his commute and the lower courts allowed compensation based on “the exception to the ‘going and coming’ rule comprised by the situation where the employer furnishes actual transportation to the employee for the trip to or from home or reimburses him his expenses therefor.” Id. at 140. The New Jersey Supreme Court denied compensation and explained:

We conclude, after study of all the cases, that the rationale of the exception to the going and coming rule under discussion can be sustained only in those situations where, if the employer reimburses him for all or substantially all of the total expenses involved. Anything less would border so closely upon the noncompensable area where the arrangement is really part of the work-remuneration rather than provision for transportation as to render the rule impracticable of judicial administration and of but ephemeral foundation in any significant Nexus between the journey and the employment.

Id. at 141. See Mitchell, 491 So.2d at 184-85; Jourdan, 853 P.2d at 101-02; Byrd, 451 S.E.2d at 407.

[¶ 13.] Other jurisdictions have held that disputes over the applicability of the going-and-coming rule constitute reasonable bases for an insurer to deny a workers’ compensation claim. Complete Vending Services, Inc. v. Indus. Comm’n, 305 Ill.App.3d 1047, 239 Ill.Dec. 472, 714 N.E.2d 30, 32-33 (1999) (denying imposition of penalties because insurer’s denial based on going-and-coming rule was reasonable); McLin v. Indus. Specialty Contractors, Inc., 851 So.2d 1135, 1144 (La.2003) (denying penalties for insurer’s refusal to pay claim based on going-and-coming rule). In Complete Vending Services, the employee was a vending machine repairman who was injured in an auto accident while driving a company owned, insured and fueled vehicle, who intended to stop by the office before going to the hospital to repair one of the company’s vending machines. 239 Ill.Dec. 472, 714 N.E.2d at 31-32. The employee was eventually denied workers’ compensation, but the arbitrator ruled in his favor and assessed penalties against the employer. Id. Despite these facts, the court concluded no penalty should be assessed against the company reasoning:

[Tjhere was a valid dispute as to whether the claimant’s accident arose out of and in the course of his employment. Because penalties are not intended to inhibit contests of liability made in good faith and because the facts presented are somewhat unique, we conclude the imposition of penalties was inappropriate in this instance.

Id. at 33.

[¶ 14.] Finally, other jurisdictions have held an insurer is not liable for bad faith where the denial is based on an issue of first impression in the jurisdiction. See Masonic Temple Ass’n of Crawfordsville v. Indiana Farmers Mut. Ins. Co., 779 N.E.2d 21, 29 (Ind.Ct.App.2002); Georgia Farm Bureau Mut. Ins. Co. v. Williams, 266 Ga.App. 540, 597 S.E.2d 430, 432 (2004); Narron v. Cincinnati Ins. Co., 278 Kan. 365, 97 P.3d 1042, 1050-51 (2004); McLin, 851 So.2d at 1144; Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Hudson Energy Co., Inc., 780 S.W.2d 417, 426-27 (Tex.App.1989), aff'd, 811 S.W.2d 552 (Tex.1991). Whether reimbursement for some travel expenses and a customary stop at the base location before proceeding to the worksite from home results in an exception to the going-and-coming rule was an issue of first impression. Hills should not be penalized for denying payment based on an issue of first impression.

[¶ 15.] Ultimately, Hills had an articu-lable and reasonable basis for the denial of benefits. See McLin, 851 So.2d at 1144. That the denial was eventually found to be erroneous does not mean the denial was in bad faith. All Nation Ins. Co. v. Brown, 363 N.W.2d 216, 218 (S.D.1985). “[T]he insurer is still authorized to challenge claims that are fairly debatable ... and the insurer does not act tortiously if it acts ‘upon a permissible, albeit mistaken, belief that the claim is not compensable.’ ” Case v. Toshiba Am. Info. Sys., Inc., 7 F.3d 771, 773 (8thCir.1993) (internal and additional citation omitted). There is not one South Dakota case that has held reimbursement for travel expenses, nominal or otherwise, creates an exception to the going-and-coming rule. With no applicable South Dakota law, Hills relied on cases from other jurisdictions that found an employee is not injured within the course of, and that injury did not arise out of employment, when an employee is traveling to or from work, in their personal vehicle, when reimbursed travel expenses at a nominal rate. Mudlin received $6.00 per hour (after the first ½ hour). This cannot be characterized as reimbursement of “all or substantially all of the total expense involved.” Ricciardi, 312 A.2d at 141. Given these facts, the claim was fairly debatable and Hills did not lack a reasonable basis for denying the claim. Accordingly, the circuit court did not err in granting summary judgment.

[¶ 16.] 2. Whether the circuit court erred in granting summary judgment based on a case defendants did not cite until the circuit court appeal.

[¶ 17.] Citing Walz v. Fireman’s Fund Insurance Company, 1996 SD 135, ¶ 16, 556 N.W.2d 68, 72, Mudlin alleges Hills cannot rely on Ricciardi because “only fact and law available to Insurer when it denied coverage are relevant.” Id. (citing Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 758 (S.D.1994)). Mudlin claims that cases not available to insurer at the time of denial are irrelevant. She claims Hills cited Ricciardi years after denying benefits; therefore, the case was not available to them.

[¶ 18.] However, in Walz, the insurer could not rely upon a particular case when denying benefits because the case was decided two years after the denial of benefits. 1996 SD 135, ¶ 16, 556 N.W.2d at 72. In contrast, Hills relied upon the going- and-coming rule as the basis of its denial of benefits from the beginning of litigation. When Mudlin won at the Department because she received reimbursement for travel expenses, Hills cited Ricciardi to demonstrate payment does not necessarily bring the activity within the course or arise out of employment. Contrary to Mudlin’s assertion, the case was available to Hills.

[¶ 19.] 3. Whether the circuit court’s ruling is consistent with the purposes of workers’ compensation law.

[¶ 20.] Mudlin argues that affirming the circuit court’s grant of summary judgment undermines the purposes of workers’ compensation law. However, this Court and the Eighth Circuit Court of Appeals have consistently held that insurers have the right to challenge claims that are fairly debatable. See Case, 7 F.3d at 773; Simkins v. Great West Cas. Co., 831 F.2d 792, 793 (8thCir.1987); Ulrich v. St. Paul Fire & Marine Ins. Co., 718 F.Supp. 759, 762 (D.S.D.1989), aff'd, 912 F.2d 961 (8thCir.1990); Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶ 6, 562 N.W.2d 117, 120, (1997); Walz, 1996 SD 135, ¶7, 556 N.W.2d at 70 (1996); In re Certification of a Question of Law from the U.S. Dist. Court, Dist. of South Dakota, W. Div. (Champion v. U.S. Fid. & Guar. Co.), 399 N.W.2d 320, 324 (S.D.1987); see also Roger M. Baron, When Insurance Companies Do Bad Things: The Evolution of the “Bad Faith” Causes of Action in South Dakota, 44 SD L Rev 471, 484-91 (1998-1999). To accept Mudlin’s argument would be to overrule our precedent and restrict an insurer’s right to challenge fairly debatable claims. We decline to do so.

[¶ 21.] Affirmed.

[¶ 22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Hills is owned by Oldcastle Materials, Inc., which in turn is owned by Oldcastle, Inc. and both are named defendants in this action.

      . The defendants will be collectively referred to as Hills unless further distinction is necessary.

      . See supra note 1.

      . For the purposes of the summary judgment motion, Hills has not objected to being referred to as an "insurer” in this bad faith case. Hills asserts that it "is a construction company and is not an insurer and does not concede that it is an insurer for any purpose, other than the summary judgment motion or that it is subject to a suit for bad faith under South Dakota law.”

      . However, in plaintiff’s response to defendants' motions for summary judgment, Mud-lin specifically noted that this Court has recognized that "employees injured while going to and coming from work are not covered under workers' compensation." (Citing Mudlin I, 2005 SD 64, ¶ 7, 698 N.W.2d 67). As Liberty Mutual correctly pointed out in its reply to plaintiff’s opposition to summary judgment, at the time of denial our jurisdiction recognized few exceptions to the going- and-coming rule. See Howell v. Cardinal Indus., Inc., 497 N.W.2d 709, 712 (S.D.1993) (finding compensation for injuries occurring in the employer controlled parking lot); see also Pickrel v. Martin Beach, 80 S.D. 376, 124 N.W.2d 182, 183 (1963) (awarding compensation when employee died in car accident returning from jobsite to his home in an employer-furnished pickup truck and all travel expenses were paid by employer). Liberty Mutual argued the closest case factually to this case was Oren v. MidStates Drywall, HF No. 109, available at 1983 WL 162622 (SD Dept Labor 1983) and benefits were denied and therefore, the denial of Mudlin’s claims was fairly debatable.

      . The relevant portion of the travel policy provides:
      The travel pay policy is to reimburse employees travel expenses when their job dictates travel beyond ½ hour of their base location. Travel can be by either company furnished or private vehicle and will be treated as follows:

        Company Vehicle: Employee driving vehicle will be on the payroll and be paid their normal hourly wage. All other employees riding in company vehicle will not be compensated for travel and their time will start when their specific task is started at the jobsite.

        Personal Vehicle: If no company vehicle is used to transport employees, employees are expected to furnish personal transportation to the jobsite. To reimburse employees for additional expenses, all employees that are transported to jobsites in excess of ½ hour from their base location in a personal vehicle will be reimbursed at the rate of $6.00 per hour for travel (after the first !⅛ hour) one way. The return to the base location will not be reimbursed no matter when the return trip takes place. Payroll time will start when the specific task is started at the jobsite. Car-pooling is encouraged as is sharing the cost with the vehicle owner. The method of transportation is a decision made by the supervisor of the specific crews.

      . In Illinois, the Workmen’s Compensation Act allowed for the assessment of fines to "penalize an employer who unreasonably, or in bad faith, delays or withholds compensation due an employee.” Cont’l Distrib. Co. v. Indus. Comm’n, 98 Ill.2d 407, 75 Ill.Dec. 26, 456 N.E.2d 847, 850 (1983); see 820 ILCS 305/19(k) & (Z).

      . Hills also listed several Department decisions where the going-and-coming rule has precluded workers’ compensation benefits, including a case where the employee was injured in an auto accident while driving to a job site after he had met with his employer and had received his orders for the day. See Oren v. Midstates Drywall, HF No. 108, available at 1983 WL 162622 (SD Dep't of Labor 1983); see also Behrens v. Sioux Valley Properties Corp., HF No. 220, available at 2003 WL 22321878 (SD Dep’t of Labor, Sept 30, 2003) (on-call doctor injured leaving hospital after being called to hospital).

      . In Mudlin I, this Court addressed and subsequently dismissed Hills’ contention that the rule in Ricciardi should apply. Instead, this Court found the reimbursement was specifically for travel expenses and therefore, "the amount of compensation” and the distinction “between reimbursement for travel expenses and. additional compensation” should not control. Mudlin I, 2005 SD 64, ¶ 12 n. 3, 698 N.W.2d at 72 n. 3.

      .It is worth noting that Mudlin did not file for workers’ compensation until two and one-half years after the accident and five months after she resigned employment. This may indicate she did not believe the injury involved her employment. While Mudlin argues that Hills' failure to report the incident to its insurer until she filed the workers’ compensation action in December 2001 indicates bad faith, it is more persuasive toward Hills’ good faith denial. Hills argues it did not report the claim as it, in their determination, did not arise out of or in the scope of employment; thus, Mudlin would not be entitled to workers' compensation. Hills’ would not file a report on an incident that would not be entitled to workers’ compensation.


author: MEIERHENRY, Justice.

text:
    2007 SD 120
    Dewayne C. TVEIDT, as Special Administrator for the Estate of Esther A. Tveidt, Plaintiff and Appellant, v. ZANDSTRA CONSTRUCTION, Inc., Defendant and Appellee.
    No. 24473.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Nov. 14, 2007.

      John W. Burke of Thomas, Nooney, Braun, Solay & Bernard, LLP, Rapid City, South Dakota, Attorneys for plaintiff and appellant.
    Eric J. Pickar, Terry L. Hofer of Bangs, McCullen, Butler, Foye & Simmons, LLP, Rapid City, South Dakota, Attorneys for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] Dewayne Tveidt (Tveidt), as Special Administrator for the Estate of Esther A. Tveidt, appeals a summary judgment order in favor of Zandstra Construction, Inc. (Zandstra). The dispute involved the interpretation of a contract entered into between the parties in conjunction with a South Dakota Department of Transportation (DOT) highway project. The project involved construction of U.S. Highway 14A between Sturgis and Deadwood, South Dakota, and was referred to as the Boulder Canyon Project. DOT contracted with local ranchers and landowners, Esther and Lewis Tveidt, to use their land to dispose of excess embankment material (DOT-Tveidt Contract). Pursuant to the DOT-Tveidt Contract, DOT would be allowed to deposit 300,000 cubic yards of excess material on TVeidt’s property in return for compensation.

[¶ 2.] DOT also contracted with Zands-tra (DOT-Zandstra Contract) to serve as the general contractor on the Boulder Canyon Project. As part of the DOT-Zandstra Contract, Zandstra was required to install thousands of tons of riprap (large stones or chunks of concrete) along the banks of the Bear Butte Creek for erosion control. According to the undisputed facts, the DOT-Zandstra Contract incorporated the DOT-Tveidt Contract.

[¶ 3.] Zandstra contracted with Tveidt (Zandstra-Tveidt Contract) to pay them for a “return haul road” and to purchase “riprap produced on their property.” The Zandstra-Tveidt Contract permitted Zandstra to “[u]se an area on Tveidt’s property to screen and store riprap.... ” The conditions of the contract specified that Zandstra would compensate Tveidt in the amount of $30,000.00 for a return haul road and an additional $2.50 per ton of riprap “produced on [Tveidt’s] property.” In addition to this compensation, Zandstra was bound to “reseed and reclaim” the affected area and backfill a pipe installed by Tveidt.

[¶4.] Zandstra, as general contractor, was responsible for transporting the excess embankment, described in the DOT-Tveidt Contract, to Tveidt’s land. After transporting the excess embankment material to Tveidt’s land, Zandstra screened the embankment for riprap, setting any usable riprap to the side for eventual application to the project. Additionally, Zandstra unearthed riprap from Tveidt’s property, which also was screened and used on the project.

[¶ 5.] Upon completion of the Boulder Canyon Project, Zandstra had hauled a total of 56,931.10 tons of riprap from Tveidt’s property. This total represented riprap from two sources (1) riprap produced by screening the material unearthed from Tveidt’s property (9,948.34 tons) and (2) riprap produced by screening the excess embankment material that had been hauled onto Tveidt’s property pursuant to the DOT-Tveidt Contract (46,982.76 tons). Zandstra tendered payment for the 9,948.34 tons of riprap produced from material unearthed from Tveidt’s property. Tveidt subsequently commenced an action alleging that Zandstra had an obligation to pay for all of the riprap that it screened from the excess embankment material. The trial court granted Zandstra’s motion for summary judgment, finding that the Zandstra-Tveidt Contract only obligated Zandstra to pay for riprap unearthed from Tveidt’s property. Tveidt claims that the trial court erred.

[¶ 6.] Specifically, Tveidt contends that (1) they owned the excess embankment material from which 46,982.76 tons of the riprap were produced and (2) pursuant to the Zandstra-Tveidt Contract, Zandstra had an obligation to pay for the riprap that it produced from the excess embankment material. Since there are no material facts in dispute, our review is limited to whether the law was correctly applied. Kling v. Stern, 2007 SD 51, ¶5, 733 N.W.2d 615, 617.

[¶ 7.] The construction of a contract is a question of law which we review de novo. Id. As this is a matter of contract interpretation, the plain meaning of the words of the contract will be given effect. In re Dissolution of Midnight Star Enterprises, L.P. ex rel. Midnight, 2006 SD 98, ¶ 12, 724 N.W.2d 834, 337. “An interpretation which gives a reasonable and effective meaning to all the terms is preferred to an interpretation which leaves a part unreasonable or of no effect.” Id. (quoting Nelson v. Schellpfeffer, 2003 SD 7, ¶ 14, 656 N.W.2d 740, 744 (citing Restatement (Second) Conteacts § 203(a) (1981))). When interpreting the contract, “[w]e must ‘give effect to the language of the entire contract and particular words and phrases are not interpreted in isolation.’ ” Id. (quoting Jones v. Siouxland Surgery, 2006 SD 97, ¶ 15, 724 N.W.2d 340, 345) (quoting Hartig Drug Co. v. Hartig, 602 N.W.2d 794, 797-98 (Iowa 1999))). The parties direct us to provisions in both the DOT-Tveidt Contract and the Tveidb-Zandstra Contract. Both contracts dealt with the same subject matter and when read together define the intent of the parties in relationship to the excess embankment material, the riprap and its production.

1. The DOT-Tveidt Contract

[¶8.] Tveidt claims that pursuant to the DOT-Tveidt Contract, the excess embankment material hauled on the property to be stored and screened became the personal property of Tveidt entitling the Estate to payment. As support, Tveidt cites to the absence of language in the DOT-Tveidt Contract suggesting that ownership of the excess embankment material would remain with DOT, and the absence of language that suggests that DOT would have the right to screen riprap from the excess embankment material. Tveidt claims that the contract only allowed DOT and its agents to have a right of ingress and egress for the purpose of depositing but not removing excess embankment materials.

[¶ 9.] Zandstra, on the other hand, argues that DOT only contracted with Tveidt for storage and waste of the excess embankment material. In support of its argument, Zandstra points to the absence of any language that suggests that the excess embankment material would become the property of Tveidt. Zandstra argues that the language of the contract implies that any excess waste material would not become property of Tveidt until the area was graded to specification, reseeded and re-fenced.

[¶ 10.] In order to resolve the issue of ownership, we look at the language of both the DOT-Tveidt Contract and the Zands-tra-Tveidt Contract, as both parties suggest. The DOT-Tveidt Contract is a five page document detailing the rights and responsibilities of DOT in regards to its use of Tveidt’s property. Among other things, the contract granted DOT a right of ingress and egress for the purpose of depositing excess embankment material and allowed for DOT’S continued use of Tveidt’ property until the Boulder Canyon Project was complete. The contract also required DOT to restore the property to its original condition after the project was completed.

[¶ 11.] The DOT-Tveidt Contract noted that the purpose of the contract was for “depositing approximately 300,000 cubic yards of excess embankment materials.” For depositing the excess embankment material, DOT agreed to pay Tveidt “a total compensatory sum of $90,000.00” plus an additional amount of $2,500.00 for loss of trees “bringing] the total compensatory amount to $92,500.00 for the placement of waste material.” The contract provided additional compensation “[i]f the quantity of excess embankment material exceeded] 300,000 cubic yards, ... at a rate of $0.25 per cubic yard of rock/dirt in excess of 300,000 cubic yards.” The contract specified that “[t]he method of measurement to determine the actual quantity of waste material will be by cross sections taken before and after on the roadway project.”

2. The Zandstrcir-Tveidt Contract

[¶ 12.] The Zandstra-Tveidt Contract consisted of a one page form and in its entirety read as follows:

The agreement made this 22nd day of May, 2000, between Zandstra Construction, Inc .... and Ester [sic] A. and Lewis Tveidt,....
Zandstra Construction, Inc. hereby agrees to:
Pay Tveidt’s $30,000.00 for return haul road 35' wide.
Pay Tveidt’s $2.50 per ton for riprap produced on their property.
Additional Conditions:
Return haul road will need to be 35' wide. We will reseed & reclaim when hauling is complete. All stumps.from project will be buried in Tveidt’s waste area. Use an area on Tveidt’s property to screen and store riprap, we will reseed this area when completed. Not all riprap for this project will be produced in Tvedt’d [sic] property. We will grade a trail south of Highway on Tveidt’s property. We will also dig a trench from the spring at STA 514 + 00 to the sleeve. Tveidt will install a pipe from the spring to the sleeve. We will then backfill pipe.

[¶ 13.] The Zandstra-Tveidt Contract provided that Tveidt would receive “$2.50 per ton for riprap produced on their property.” By using the word “produced,” Tveidt argues that, by definition, Zandstra had an obligation to pay for any riprap “brought into existence” or “created” on Tveidt’s property. See Black’s Law Dictionary 1245 (8th ed 2004). Even if we were to accept this definition of the term “produced,” Tveidt’s argument fails. The riprap obtained from the excess embankment material was not created on TVeidt’s property. In other words, it- did not have its origin from Tveidt’s property. Rather, the DOT moved it from the Boulder Canyon Project and placed it on Tveidt’s property for storage purposes. In contrast, the 9,948.34 tons of riprap that Zandstra tendered payment for had its origin in Tveidt’s property. Furthermore, Black’s Law Dictionary also defines “produced” as “to bring (oil, etc.) to the surface of the earth.” Black’s Law Dictionary 1245 (8th ed 2004). The riprap produced from the excess material had already been brought to the surface of the earth when it was placed on Tveidt’s property. Therefore, under both of these definitions, the term “produced” does not apply to the riprap obtained from the excess embankment material.

[¶ 14.] Tveidt further argues the excess embankment material became the property of the Tveidts once placed on their property. Tveidt cites Hayes v. Alaska Juneau Forest Industries, Inc., a case dealing with the deposit of mine tailings, as support for this position. 748 P.2d 332, 336 (Alaska 1988). In Hayes, the Alaska Supreme Court stated that “[a]ll authorities to which we have been referred hold that when tailings or other mine wastes are deposited in such a manner or with such an intention that they become real estate, they become the property of the owner of the underlying land.” Id. at 337. However, in Hayes the minerals were deposited for the purpose of disposal, “as distinct from being stockpiled for future use.” Id. at 334-35. Zandstra, as an agent of DOT, did not dispose of excess embankment material; it screened and stored the riprap for future use. This is not indicative of an intent to abandon the riprap, as required in Hayes. Id. at 835. The Hayes Court recognized that the minerals did not change ownership until they were abandoned; stating: “[t]he concept of abandonment plays an important role.... If the tailings are ‘abandoned’ they become real estate, if they are not abandoned they remain the personal property of the mine or mill which created them.” Id. at 335. Neither Zandstra nor the DOT abandoned any of the excess embankment until after the completion of the Boulder Canyon Project. The Zands-tra-Tveidt Contract and the DOT-Tveidt Contract further emphasize this fact.

[¶ 15.] The DOT-Tveidt Contract stated the quantity of excess embankment would be determined by measuring “cross sections taken before and after the roadway project.” (Emphasis added). This measurement clause clearly states that DOT would only pay Tveidt for the excess embankment remaining on the property at the conclusion of the roadway project. It further implies that excess embankment material may be removed from Tveidt’s land prior to the roadway project’s completion. Hence, the property was not abandoned until the conclusion of the Boulder Canyon Project. The Zandstra-TVeidt Contract also contradicts the Hayes analogy-

[¶ 16.] The Zandstra-TVeidt Contract referred to both “stored” riprap and “produced” riprap. It provided that Tveidt’s land would be used to “screen and store riprap.” (Emphasis added). It further provided, “[n]ot all riprap for this project will be produced in Tvedt’d [sic] property,” a reasonable interpretation of the two provisions is that the parties agreed that not all of the “stored” riprap would be “produced” in Tveidt’s property. In other words, some of the stored riprap would come from another source. Rationally, another source of riprap was the excess embankment material Zandstra stripped from the Boulder Canyon Project area and transported to Tveidt’s land. Moreover, there would be no reason to “store” riprap which was already part of Tveidt’s land. When interpreting a contract we prefer to give effect to all its terms, rather than “an interpretation which leaves a part unreasonable or of no effect.” In re Dissolution of Midnight Star Enterprises, L.P. ex rel. Midnight, 2006 SD 98, ¶ 12, 724 N.W.2d at 337 (quoting Nelson v. Sehellpfeffer, 2003 SD 7, ¶ 14, 656 N.W.2d 740, 744 (citing Restatement (Second) Contracts § 203(a) (1981))).

[¶ 17.] Neither the DOT-Tveidt Contract nor the Zandstra-TVeidt Contract obligated Zandstra to compensate Tveidt for riprap screened from the excess embankment material; therefore, we find no error in the trial court’s grant of summary judgment.

[¶ 18.] Affirmed.

[¶ 19.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.