author: HUSPENI, Judge.

text:
    ILLINOIS FARMERS INSURANCE COMPANY, Appellant, v. Mariese MARVIN, et al., Respondents.
    No. A05-874.
    Court of Appeals of Minnesota.
    Jan. 17, 2006.

      Kathleen M. Loucks, Timothy J. Crock-er, Gislason & Hunter, LLP, Minnetonka, MN, for appellant.
    Daniel T. Cody, Brendan J. Cody, Cody Law Offices, St. Paul, MN, for respondents.
    Considered and decided by LANSING, Presiding Judge; HUDSON, Judge; and HUSPENI, Judge.
   OPINION

HUSPENI, Judge.

On appeal from summary judgment for respondent, appellant argues that the district court erred in finding respondent an occupant of a vehicle insured by appellant for the purposes of underinsured motorist coverage. Appellant further argues that the district court erred in finding that respondent’s injuries arose out of the maintenance and use of the insured vehicle as a vehicle. Because we conclude that the district court did not err in finding that respondent was entitled to recover under-insured motorist benefits, we affirm.

FACTS

Respondent Mariese Marvin was injured as a result of being pinned between an automobile owned by Tonya Weigel and one owned by Joseph Betz. Weigel is an insured of appellant Illinois Farmers Insurance Company.

On the day of her injury, respondent accompanied Weigel to the house of Weig-el’s father, Joseph Betz, to pick up some toys. Upon arrival, Weigel drove her Explorer to the back garage and parked. Respondent and Weigel exited the vehicle and began placing large toys in the Explorer’s rear cargo area. At one point, respondent leaned into the cargo area of the Explorer and pushed toys back to make room for one more toy. As she slid off of the cargo floor onto the ground, Betz’s vehicle backed into the Explorer, crushing respondent’s legs between the bumpers of the two automobiles.

Betz and Weigel were the only witnesses at the scene, although neither of them actually saw the impact occur. Weigel testified that the accident happened less than five minutes after she and respondent exited the Explorer, and at the moment of impact, her back was turned to the Explorer. However, when Weigel heard the impact, she turned to see respondent standing upright, crushed between the Betz vehicle and the Explorer. After Betz moved his car forward, Weigel lowered - respondent to the ground. Respondent sustained compound fractures in her right and left knees and right ankle as a result of the accident.

Respondent settled a claim against Betz, exhausting his liability coverage, but the settlement did not fully compensate for her damages. She then submitted the remainder of her claims to appellant, Weig-el’s insurer, for underinsured coverage, and requested arbitration as required by appellant’s policy. In response, appellant instituted a declaratory-judgment action and moved for summary judgment, arguing that respondent was not covered under the policy on the Explorer because she was not an “occupant” of that vehicle at the time she was injured. Respondent also moved for summary judgment and submitted an affidavit in which she stated that she was climbing out of the Explorer’s cargo area at the time of impact.

During the motion hearing, appellant argued that the affidavit submitted by respondent with her summary judgment contradicted an earlier affidavit in which she described herself as a pedestrian. Appellant’s attorney stated, however, that “even if the Court were to. consider her affidavit as true, and even if we would concede for purposes of today’s argument only that there is no fact issue, it simply doesn’t matter, ... because they cannot prove maintenance of their vehicle as a vehicle.” The district court granted respondent’s motion for summary judgment and this appeal follows.

ISSUES

I. Was respondent an “occupant” for purposes of underinsured motorist coverage?

II. Did respondent’s injuries arise from the maintenance or use of a motor vehicle?

ANALYSIS

On appeal from a grant- of summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990).

The moving party has the burden to prove that there is an absence of any genuine issue of material fact. Sauter v. Sauter, 244 Minn. 482, 484, 70 N.W.2d 351, 353 (1955). The evidence must be construed in a light most favorable to the nonmoving party. Id. If any doubt exists as to the existence of a genuine issue of material fact, the doubt must be resolved in favor of finding that the fact issue exists. Poplinski v. Gislason, 397 N.W.2d 412, 414 (Minn.App.1986), review denied (Minn. Feb. 18, 1987). However, when the moving party has met that burden, the opposing party must establish the existence of a genuine issue of material fact. See Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 215 (Minn.1985).

If summary judgment is supported by affidavits, depositions, etc., the nonmoving party cannot rely on assertions in its pleadings to create a fact issue. Ahlm v. Rooney, 274 Minn. 259, 262, 143 N.W.2d 65, 69 (1966). Credibility concerns of a movant’s affidavit may lead a court to conclude that a genuine issue of fact exists, but simple assertions that an affiant’s statements should be disbelieved is insufficient to defeat a motion for summary judgment. Bixler, 376 N.W.2d at 216.

An insurer’s liability is determined by the insurance contract as long as the insurance contract does not omit coverage required by law or violate applicable statutes. Kelly v. State Farm Mut. Auto. Ins. Co., 666 N.W.2d 328, 331 (Minn.2003). Underinsured motorist coverage is intended “to protect the named insured and other additional insureds from suffering an inadequately compensated injury caused by an accident with an inadequately insured automobile.” Id. (quotation omitted).

I.

Because Betz’s vehicle was inadequately insured to fully compensate respondent, respondent can look to Weigel’s policy for coverage if respondent is an “additional insured” as defined by both Minnesota statutes and the insurance policy. Under Minnesota law, an injured person has statutory coverage up to the specified limits of the policy involved “[i]f at the time of the accident the injured person is occupying a motor vehicle.... ” Minn.Stat. § 65B.49, subd. 3a(5) (2004) (emphasis added). Similarly, appellant’s policy defines an insured as “[a]ny other person while occupying [the] insured car.”

Although Minnesota statutes do not specifically define occupancy, the supreme court has ruled that the definition contained within the policy at issue shall govern, as long as it is not narrower than common usage. Allied Mut. Ins. Co. v. W. Nat’l Mut. Ins. Co., 552 N.W.2d 561, 563-64 (Minn.1996). Appellant’s policy defines occupying as being “in, on, [or] getting into or out of’ the automobile.

Appellant asserts that whether respondent was an occupant raises an issue of material fact because respondent never claimed she was an “occupant” of the Explorer prior to the affidavit submitted with her motion for summary judgment. During the discovery process, respondent described herself as a pedestrian in an answer to an interrogatory, and hospital records describe the accident as one involving a “pedestrian versus car.” In her summary judgment affidavit, however, she states that just before the collision she was leaning forward into the rear of the vehicle and was in the process of sliding off the cargo floor onto the ground. Further, she states that it was her intent to take her seat in the passenger side and leave the area, being transported again by Weigel’s Explorer to return home.

We conclude that respondent’s description of herself as a pedestrian and the description in the hospital records are not sufficient to raise a question of genuine fact. In response to the interrogatory asking respondent to describe damages sustained to her vehicle, she replied that vehicle damage was inapplicable, as she was a “pedestrian” and the only property damage was to her clothing. Likewise, the hospital records referring to respondent as a “pedestrian” cannot reasonably be construed as legally binding for purposes of insurance coverage. Further, even under the facts most favorable to appellant, respondent was in the process of loading the vehicle, and indisputably the upper half of her body had been in the vehicle mere moments before the accident.

The party opposing the summary judgment cannot rely on general averments in resisting summary judgment. Ahlm, 274 Minn, at 262, 143 N.W.2d at 68. Specific facts must be identified which establish the existence of a triable fact. Id. Appellant has not identified any facts, other than the fact that respondent had described herself as a pedestrian and that medical reports describe her as a pedestrian. Reviewing the record as a whole, we conclude these references are insufficient to create a material fact issue regarding occupancy. Accordingly, respondent was an “occupant” of the Explorer at the time of injury.

II.

Our determination that respondent was an occupant of the Explorer at the time she was injured does not end our inquiry. Courts have long required some causal connection between the occupancy of the vehicle and the injury sustained. Allied Mut., 552 N.W.2d at 563. We must therefore also determine whether respondent’s injury arose out of the maintenance or use of the Explorer as defined by Minnesota statute and caselaw. Minn.Stat. § 65B.43, subd. 3 (2004).

“Whether an injury arose out of the maintenance or use of a motor vehicle is a question of law.” Kemmerer v. State Farm Ins. Co., 513 N.W.2d 838, 842 (Minn.App.1994), review denied (Minn. June 2, 1994); see also Continental W. Ins. Co. v. Klug, 415 N.W.2d 876, 877-78 (Minn.1987) (stating that the determination of whether an accident arose out of the maintenance or use of a motor vehicle is a legal issue that turns on the particular facts presented in each case). We review the issue de novo. Auto-Owners Ins. Co. v. Forstrom, 684 N.W.2d 494, 497 (Minn.2004). And we note initially that it is an issue that raises difficult and complex questions for a reviewing court. Existing caselaw both informs our analysis and causes us to observe once again how very fact-specific and uniquely fact-determinative is the decision in each case regarding whether coverage will be made available or whether it will be denied.

Under the Minnesota No-Fault Act, “maintenance or use” for purposes of un-derinsured-motorist (UIM) coverage is defined as “[mjaintenance or use of a motor vehicle as a vehicle.” Minn.Stat. § 65B.43, subd. 3 (2004). This definition, however, does not include “conduct in the course of loading and unloading the vehicle unless the conduct occurs while occupying, entering into or alighting from it.” Id. (emphasis added).

In determining whether respondent’s injuries arose from the maintenance or use of the Explorer, we apply the three-part maintenance-and-use analysis set forth in Klug, 415 N.W.2d at 878. In that case, the court stated:

The first consideration is the extent of causation between the automobile and the injury.... [T]he vehicle must be an “active accessory” ... “something less than proximate cause in the tort sense and something more than the vehicle being the mere situs of the injury.” ...
If a court finds the requisite degree of causation, it should next determine whether an act of independent significance occurred, breaking the causal link between “use” of the vehicle and the injuries....
If a court finds the requisite degree of causation and no intervening independent act, it must consider one final inquiry. ... [T]he court must determine what type of “use” of the automobile was involved.... [Cjoverage should exist only for injuries resulting from use of an automobile for transportation purposes.

Klug, 415 N.W.2d at 878 (citations omitted). Appellant concedes that the use of the Explorer was for transportation. Thus, the third Klug factor is satisfied, and we need only determine whether the Explorer was an active accessory in causing the injury and whether there was an act of independent significance breaking the causal link between the use and the injuries.

A. Active Accessory

For a vehicle to be an active accessory does not require that it actively cause the damages; rather, the requirement is satisfied if the injury occurred because the vehicle’s use is actively connected with the injury. Fire & Cas. Ins. Co. of Conn. v. Ill. Farmers Ins. Co., 352 N.W.2d 798, 799 (Minn.App.1984). As noted by the King court, designation as an active accessory required something more than being the “mere situs of the injury.” King, 415 N.W.2d at 878.

In struggling with the question of when a vehicle is an active accessory and when it is not, courts have denied coverage when, as the mere situs of the injury, the vehicle had nothing to do with the injury itself. In Allied Mwt., the claimant, standing a short distance away from the insured vehicle, was struck by an oncoming vehicle as she waited for the insured vehicle to be unlocked. 552 N.W.2d at 562. In denying coverage, the court reasoned that the claimant was not an occupant at the time of injury, and that the vehicle “was simply present: it was parked, unoccupied and unmoving.” Id. at 564. In contrast to the facts of the case now before us, the Allied Mwt. court made no indication that the insured vehicle had in any way contributed to the claimant’s injuries.

Appellant urges that the result of Allied Mut. requires a denial of coverage here because the Explorer, too, was parked and unmoving. While appellant’s argument may have superficial persuasiveness, the cessation or absence of movement alone has been held not to preclude coverage. Kern v. Auto Owners Ins. Co., 526 N.W.2d 409, 411 (Minn.App.1995); see also Medicine Lake Bus Co. v. Smith, 554 N.W.2d 623, 626 (Minn.App.1996) (finding coverage when bus passenger’s injuries resulted from an accidental fall while alighting from the bus, notwithstanding that bus was stationary when the fall occurred).

We conclude that the unique facts of Allied Mut. do not compel a similar result under the unique facts of this case. Unlike respondent here, who was using the vehicle at the time of impact, the claimant in Allied Mut. was not making any use of the vehicle at the time of the accident, nor did the vehicle contribute in any way to the injuries. Here, respondent was using the Explorer to load toys, and the bumper of the Explorer was the object against which respondent was pinned.

In Marklund v. Farm Bureau Mut. Ins. Co., 400 N.W.2d 337 (Minn.1987), a case addressing situs, coverage was denied when the claimant slipped and fell on a patch of ice after refueling his vehicle. The court reasoned that all maintenance functions had been completed on the vehicle prior to the time of the claimant’s fall, and that the injury had resulted from a premises hazard completely unrelated to the use or repair of the vehicle. Mark-lund, 400 N.W.2d at 340-41. Unlike the claimant in Marklund, respondent was still in the process of loading toys into the Explorer and was alighting from the vehicle as she was struck.

In Tlougan v. Auto-Owners Ins. Co., 310 N.W.2d 116 (Minn.1981), another case addressing situs, a five-year-old child sustained burn injuries while playing with matches in a truck. In denying coverage, the court found that while the child was, indeed, an occupant of the truck, and her occupancy was related to use of a motor vehicle as a vehicle, her use of matches in the truck, the act which resulted in injury, had nothing to do with the use of the truck as a motor vehicle as the “cab of the truck was no more than the situs of the match-playing incident.” Tlougan, 310 N.W.2d at 117. Here, respondent’s injuries were sustained, at least in part, when she came in contact with the bumper of the Explorer and thus the vehicle’s use was actively “connected” with the injury. Therefore, we conclude that denial of coverage to respondent on the basis of a “mere situs” rationale would, at best, be questionable.

State Farm Fire & Cas. Co. v. Sirope, 481 N.W.2d 853 (Minn.App.1992), also involved a vehicle found to be a mere situs of the injury. In that case, a dog had moved onto the floor of the vehicle and become entangled with gun casings. Sirope, 481 N.W.2d at 854. As the driver placed his hand on the handle of a gun casing, the rifle accidentally discharged and a bullet struck a passenger. Id. Noting that “[cjourts generally require proof of the active involvement of the vehicle and not mere speculation,” the court determined that the facts failed to show the truck was “ ‘actively’ involved or played a necessary role in causing the rifle to discharge.” Strope, 481 N.W.2d at 856; see also Fire & Cas. Ins. Co. of Conn., 352 N.W.2d at 800 (holding that when hunter accidentally shoots his partner near a vehicle, that vehicle is a mere situs of the accident and therefore the accident did not arise out of the maintenance and use of the vehicle).

In reviewing cases where coverage has been found, the active involvement of the vehicle is admittedly more easily identified than here. In Kern, the injured party had parked her vehicle in the parking lot of a grocery store. 526 N.W.2d at 410. As she walked toward her vehicle after shopping, she was struck by some insulated siding-that blew out of a nearby pickup. The court determined that the pickup was an active accessory to the injury because it was designed to transport materials in the pickup bed; it was a natural and reasonable consequence for materials to blow out of the truck. Id. at 412.

Other cases have noted that so long as the vehicle is being used as a motor vehicle during the time of injury, the vehicle is more than a mere situs for the accident. See, e.g., N. River Ins. Co. v. Dairyland Ins., 346 N.W.2d 109, 113-14 (Minn.1984) (finding plaintiffs injury arose from the use or maintenance of motor vehicle when injury occurred from attempt to remove tarpaulin attached to top of trailer); Galle v. Excalibur Ins. Co., 317 N.W.2d 368, 370 (Minn.1982) (finding coverage when plaintiff was injured by part of the vehicle that malfunctioned but denying coverage for two other injuries incurred while lifting heavy objects inside the vehicle); Van-Guilder v. Allstate Ins. Co., 494 N.W.2d 901, 902 (Minn.App.1993) (finding injury that occurs when occupant in moving vehicle is accidentally struck by a rock propelled from a lawn mower arises out of the use of a motor vehicle for purposes of no-fault insurance coverage), review denied (Minn. Mar. 16, 1993).

In arguing that the Explorer is not an active accessory, appellant contends that because the Explorer was simply the vehicle against which respondent was pinned, it was nothing more than a passive accessory to the accident and was, therefore, merely the situs of the injury. Appellant relies on Short v. Midwest Family Mut. Ins. Co., 602 N.W.2d 914 (Minn.App.1999), to support the “situs-only” argument. In Short, however, coverage was denied not because the injured party was “pinned between vehicles,” but because the injured party did not fall under the definition of occupant at the time of injury. 602 N.W.2d at 915. Because the injured party was not an occupant, the court in Short never addressed the King factors.

Similarly, appellant relies on State Farm Mut. Auto. Ins. Co. v. O’Brien, 380 F.Supp. 1279 (D.Minn.1974), for the proposition that the vehicle to which an injured person is pinned is only a passive instrument. The decision in O’Brien, however, turned on whether the vehicle was being used in a manner contemplated by the statute. Coverage was denied because a six-year-old child’s act of turning on the ignition causing the car to surge backwards and pin the mother against the garage was not “use” for purposes of coverage under the automobile policy. O’Brien, 380 F.Supp. at 1282. It is not necessary for this court to answer the “use” question here.

Finally, appellant relies on Auto-Owners Ins. Co. v. Great W. Cas., 695 N.W.2d 646 (Minn.App.2005), review denied (Minn. July 19, 2005), to argue that the Explorer was the mere situs of respondent’s injury. At first glance, it appears that Auto-Owners is analogous to the present case simply because it involved two automobiles and the court applied the Klug analysis. In Auto-Owners, a vehicle stalled atop an automobile transport trailer. As the injured person attempted to release thé stalled vehicle, it rolled backwards, causing the injured person to leap out of the way and wedge his foot between the beams of the automobile transport trailer. Auto-Owners, 695 N.W.2d at 647.

The only issue in Auto-Owners was which of two insurers would be liable for payment of no-fault insurance benefits. 695 N.W.2d at 648. It was undisputed that the injured person was not the driver or occupant of either vehicle at the time of the accident, and therefore the analysis centered on whether the injury resulted from the maintenance or use of the automobile-transport trailer or from the maintenance or use of the stalled vehicle. Id. The district court concluded the former. Id. This court reversed, concluding that the transport trader was a mere situs and that the injury “arose out of the ‘maintenance or use’ of the stalled vehicle,” that-it was the stalled vehicle being acted upon and it was the “movement of the stalled vehicle itself that caused (the injured person) to jump out of the way and fall between the trailer’s beams.” Id. at 649.

Appellant urges that pursuant to Auto-Oumers, the vehicle. that is, in the tort sense, the direct “cause” of the injury should be the only vehicle liable. There are factors in this case, however, that prompt a different analysis. Further, we are called upon here to answer a question that was not present in Auto-Oumers. The coverage at issue in Awto-Owners was basic economic loss benefits. Here we are concerned with liability coverage on one vehicle (the Betz vehicle) and underinsured motorist coverage on another vehicle (the Explorer), and must answer the question of whether and when and under what circumstances the exhaustion of the former permits invocation of the latter. It is undisputed in this case that damages may exceed the liability limits of the Betz vehicle. There was no discussion in Auto-Oumers of whether damages exceeded basic economic loss benefit limits and what other insurance might be invoked to cover excess damages. Also, respondent here, unlike the injured person in Auto-Oumers, has been found to be an occupant of the Explorer and was actively using that vehicle as a motor vehicle at the time of her injury. We conclude that Auto-Oumers does not compel a decision here similar to that reached in that case.

In the present case, recognizing how very fine are the factual distinctions to be made in deciding the “active accessory” prong of the Klug test, we conclude that the involvement of the Explorer was less than proximate cause but more than mere situs, and that it was an active accessory. Being pinned against the bumpers of the Explorer actively contributed to crushing respondent’s lower extremities. The hospital admission notes indicate that her “severe bilateral lower extremity injuries [arose] from [car bumpers] when she got caught between two cars ... with [her] legs trapped between.” Had the Explorer not been where it was, respondent may have suffered other injuries, but we do not believe she would have suffered the ones that she did.

B. Act of Independent Significance

The second contested King factor must also be resolved in respondent’s favor if coverage under appellant’s policy is to be invoked. Was there an act of independent significance that broke the causal chain? An act of independent significance occurs where an independent tortfeasor intercedes to cause the injury. See Lindsey v. Sturm, 436 N.W.2d 788, 790 (Minn.App. 1989) (stating that it is a fundamental principle of tort law that an intentional or criminal act, such as a battery, will break the causal chain because no reasonable standard of care would require a person to be on guard against such acts); see also Edwards v. State Farm Mut. Auto. Ins. Co., 399 N.W.2d 95, 98 (Minn.App.1986) (finding causal chain between injury and use of vehicle broken when victim was raped in automobile), review denied (Minn. Mar. 13, 1987); Wieneke v. Home Mut. Ins. Co., 397 N.W.2d 597, 598-99 (Minn.App.1986) (finding independent act where tortfeasor punched claimant inside insured vehicle), review denied (Minn. Jan. 21, 1987).

In contrast, caselaw instructs that negligent actions are not considered to be acts of independent significance. The supreme court has established that the purpose of UM or UIM is to “protect against the risk that the motorist who injures the purchaser is uninsured (or underinsured) and unable to pay the damages the purchaser is entitled to recover under tort law.” McIntosh v. State Farm Mut. Auto. Ins. Co., 488 N.W.2d 476, 479 (Minn.1992); see also North Star Mut. Ins. Co. v. Carlson, 442 N.W.2d 848, 855 (Minn.App.1989) (stating that there is no intervening act of independent significance to break the causal link between the car engine fire, the insured’s reflexive action of throwing the flaming can, and the can’s striking the victim), review denied (Minn. Sept. 21, 1989). In other words, notwithstanding Betz’s negligence, the purpose of UIM coverage entitles respondent to collect under her own policy the compensation that Betz would have paid if he had been adequately insured. If we adopt appellant’s argument that another driver’s negligence constitutes an intervening act, we would seriously undermine the purpose and premise of UIM benefits.

The recent case of Dougherty v. State Farm Mut. Ins. Co., 699 N.W.2d 741 (Minn.2005), demonstrates the extent to which a negligent act is not an act of independent significance sufficient to break the causal chain demanded by Klug. In Dougherty, the driver left a bar after an evening of drinking, attempted to drive a short distance to her home, became stuck in a snowbank, exited the car leaving her hat and gloves still inside, and attempted to walk the remaining 330 feet to her home, using her hands and arms to push through packed snow, slipped and fell on ice, was unable to regain her footing, took refuge near the side of a garage, may have fallen asleep,, and sustained severe frostbite. In ruling that the driver’s intoxication was not an act of independent significance sufficient to break the causal chain, a four-person majority of the court engaged in an exhaustive review of existing caselaw and reasoned that in the case being addressed “[t]he language of the No-Fault Act does not exclude coverage for drivers whose intoxication caused the accident.” Dougherty, 699 N.W.2d at 746.

We recognize that the coverage being sought in Dougherty was no-fault benefits under Minn.Stat. § 65B.42(1) (2004), and that the coverage being sought here is underinsured motorists benefits. Should a distinction be made? The dissent in Dougherty points to the language of Minn. Stat. § 65B.46 (2004), which indicates that coverage is to be available for injuries “arising out of maintenance or use of a motor vehicle.” Dougherty, 699 N.W.2d at 747. Thus, even though a question of “fault” (intoxication of the driver) could not be considered in Dougherty, and while fault — at least on the part of Betz — is clearly present here, is that distinction sufficient to compel us to conclude that Dougherty offers no support to respondent’s argument that Betz’s act was not sufficient to constitute an act of independent significance breaking the causal chain?

Appellant argues strenuously that Betz’s act did break the causal chain. To the extent that appellant relies upon cases involving intentional torts, those cases are distinguishable. It is understandable that the consequences of those intentional torts — at least to the extent those consequences are manifested in invoking uninsured and underinsured motorists’ coverage — should not fall upon the motoring public. Here, unquestionably, Betz was negligent. He did not intentionally back his vehicle into respondent. We conclude that to determine that his negligence constituted an act of independent significance would be contradictory to the purpose and policy of the UIM statute, which is to provide the insured (respondent here) with financial protection against an underin-sured motorist whose negligence results in injury. Nygaard v. State Farm Mut. Auto. Ins. Co., 301 Minn. 10. 19. 221 N.W.2d 151, 156 (1974); see also McIntosh, 488 N.W.2d at 480.

In determining that respondent was an occupant of the Explorer, that the Explorer was an active accessory, and that the negligence of Betz was not an act of independent significance breaking the causal link, we conclude that the purpose of the No-Fault Act, rather than being violated, is being effected.

DECISION

Coverage for injuries sustained during the loading of an automobile is not precluded by the fact that the automobile was stationary at the time of the accident. The victim was an occupant of the vehicle and was in the process of using the vehicle as a motor vehicle at the time of impact. Because the insured automobile directly contributed to the victim’s specific injuries, the automobile is more than a mere situs of the accident, but is instead an active accessory. Finally, the tortfeasor’s act of impacting respondent and pinning her against the bumper of the insured vehicle is not an act of independent significance breaking the causal chain. Consequently, we affirm the district court’s grant of summary judgment to respondent.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . Mariese and husband Jeffrey Marvin are the respondents, but because Mariese is the one injured, for purposes of this appeal she is referred to as respondent.

      . This specific argument is only summarily raised in appellant's brief, but it was presented to the district court.


source: Caselaw Access Project

author: MARING, Justice.

license: Public Domain

text:
    2005 ND 222
    Connie KOBS, f/k/a Connie Jacobson and f/k/a Connie Chumley, Plaintiff and Appellee v. David J. JACOBSON, Defendant and Appellant.
    No. 20050165.
    Supreme Court of North Dakota.
    Dec. 27, 2005.

      Justin D. Hager (argued), Bismarck, N.D., for defendant and appellant.
    Connie Kobs, Bismarck, N.D., plaintiff and appellee.
   MARING, Justice.

[¶ 1] David J. Jacobson appeals from a thud amended judgment denying his motion seeking to reduce his child support obligation. Jacobson argues the trial court erred in applying the child support guidelines and imputed to him the amount of income he earned in 1999 for the purpose of determining his current child support obligation. We reverse and remand, instructing the trial court to enter an amended judgment ordering Jacobson to pay $207 a month in child support, an amount that reflects Jacobson’s child support obligation under the guidelines.

I

[¶ 2] Jacobson and Connie Kobs, formerly Connie Jacobson, were divorced on May 28, 1998. The parties had two children together. The trial court issued an amended judgment on September 12, 1998, and a second amended judgment on April 20, 2000. Jacobson filed a third motion to amend judgment on February 16, 2005. Among other claims, Jacobson sought a reduction of his child support obligation based on the status of his oldest child and a loss in income. In the third amended judgment, filed May 5, 2005, the trial court terminated Jacobson’s child support obligation for the oldest child, but did not reduce the child support for his youngest child.

[¶ 3] Jacobson argued a recalculation was appropriate based on his reduced income. Under the second amended judgment Jacobson’s child support was based on a monthly income in 1999 of $1,300. In his motion for a third amended judgment, Jacobson presented tax returns for the five-year period between 2000 and 2004 showing a total loss of $5,431. Based on this income, Jacobson asserted his child support obligation would be $14 a month. Jacobson requested that the trial court set his support obligation based on the minimum wage, arguing, erroneously, this would result in a $168 a month obligation. Kobs argued the income in Jacobson’s tax returns was largely reduced by depreciation and, without depreciation, his income would be in excess of $20,000 per year.

[¶ 4] The trial court found that Jacobson had not carried his burden of proof •with respect to his actual monthly income. Stating it was satisfied Jacobson’s 1999 income was representative of his true income today, the trial court ordered Jacobson’s support obligation for one child remain at $298 a month.

[¶ 5] On appeal, Jacobson argues the trial court erred by incorrectly applying the child support guidelines for determining his income. He also argues the trial court erred when it imputed his 1999 income for purposes of determining his present-day child support obligation.

II

[¶ 6] Jacobson argues the trial court erred as a matter of law by incorrectly applying the child support guidelines in determining his support obligation. We agree.

[¶ 7] On appeal, “this Court reviews a child support order applying a de novo standard of review for questions of law, a clearly erroneous standard of review for questions of fact, and an abuse of discretion standard of review for discretionary matters.” Ramsey County Soc. Serv. Bd. v. Kamara, 2002 ND 192, ¶ 6, 653 N.W.2d 693. When a trial court fails to comply with the requirements of the child support guidelines, it errs as a matter of law. Lauer v. Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450. A trial court also errs as a matter of law when it does not clearly set forth how it determined the obligor’s income and resulting support obligation. Id.

[¶ 8] “There is a rebuttable presumption under N.D.C.C. § 14-09-09.7 that the amount of support designated in the child support guidelines is correct.” Ramsey County Soc. Serv. Bd. v. Kamara, 2002 ND 192, ¶ 10, 653 N.W.2d 693. Our child support laws were drafted with the intention that the level of support an obli-gor provides would be periodically reviewed and modified to ensure the obli-gor’s child support obligations remain in conformity with the guidelines. Lauer, 2000 ND 82, ¶ 4, 609 N.W.2d 450; N.D.C.C. § 14-09-08.4. Under N.D.C.C. § 14-09-08.4, the trial court must modify an obligor’s child support obligation to conform to the guidelines when a motion to modify support is made more than one year after the entry of the prior order. Id.

[T]he moving party does not need to demonstrate a material change in circumstances in order to modify an existing award when modification is sought more than one year after the original award. The party seeking a modification need only demonstrate the current amount paid is not in accordance with the guidelines.

Torgerson v. Torgerson, 2003 ND 150, ¶ 7, 669 N.W.2d 98. Without ordering the parties to present more information and making specific findings of fact, a trial court cannot arbitrarily ignore the guidelines simply because it feels the obligor’s tax returns do not adequately reflect the obli-gor’s income. See Knoll v. Kuleck, 2004 ND 199, ¶ 5, 688 N.W.2d 370; N.D. Admin. Code § 75-02-04.1-05(3).

Ill

[¶ 9] Jacobson is a self-employed rancher. Under the child support guidelines, the child support obligation for a self-employed individual is determined using the obligor’s total income for internal revenue service purposes. N.D. Admin. Code § 75-02-04.1-05(1). For self-employment activities that experience significant fluctuations in income from year to year, such as ranching, an average of the income reported for the most recent five-year period must be used, provided the scale of the self-employment activity over that period was substantially similar. N.D. Admin. Code § 75-02-04.1-05(4). If tax returns are not available or they do not reasonably reflect an obligor’s income from self-employment, the court must use profit and loss statements that more accurately reflect the obligor’s current income. N.D. Admin. Code § 75-02-04.1-05(3).

[¶ 10] Here, it appears the trial court initially used the average of Jacobson’s tax returns over the past five years in making its determination of his support obligation. Those figures show an average annual loss of $5,431. The trial court then, however, stated it believed Jacobson’s average monthly income was $1,200, his level of income in 1999. The trial court alludes to Kobs’ argument that depreciation deductions taken on Jacobson’s tax returns should be added when calculating his income, but never clearly states why the data from Jacobson’s five most recent tax returns should be ignored and his 1999 income imputed. The trial court explains only:

Connie makes the argument that a lot of what went into these income tax returns was depreciation which represents an offset against income but which does not require real dollars to be spent to be claimed. Connie argues David’s income without depreciation would be in excess of $20,000 per year. David argues that the Court can set his child support based on the minimum wage which results in child support for one child of $168 per month.
The burden of proof is on the moving party, and David has not carried it with respect to his actual monthly income. The Court is satisfied that his income for 1999 when he was working as a rancher in essentially the same capacity he is working for himself now is representative of what his true income is even though there have been tough years for the cattle business lately. The Court finds his income continues to be $1,200 per month, which results in child support for one child of $298 per month.

The trial court has not clearly set forth its reasoning as required under our prior cases. See Lauer, 2000 ND 82, ¶ 3, 609 N.W.2d 450.

[¶ 11] If the trial court included deductions based on depreciation in Jacobson’s income, the trial court acted under an erroneous interpretation of the law. This Court’s decision in Torgerson makes clear that depreciation deductions may not be added back in when determining an obligor’s net income under the guidelines. 2003 ND 150, 669 N.W.2d 98. In Torger-son, we stated:

[R]ecent changes [made in 1999] in the guidelines were designed to more closely track with Internal Revenue Service standards, using an obligor’s total income from tax returns to determine child support without adding depreciation back into an obligor’s net income ....
The child support guideline specifies, “[e]xamples of gross income include salaries ... and net income from self-employment.” N.D. Admin. Code § 75-02-04.1 — 01(5)(b) (1999). The guidelines further define income from self-employment as, “[n]et income from self-employment means total income, for internal revenue service purposes, of the obligor and the obligor’s business.” N.D. Admin. Code § 75-02-04.1-05(1) (1999) (emphasis added)....
The revised child support guidelines specifically omitted provisions for adding depreciation back into an obligor’s net income because they created confusion and were open to manipulation. Summ. of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code § 75-02-04.1 at 28 (1998).
The 1999 changes in the support guideline unambiguously changed the practice of requiring depreciation to be added back into an obligor’s income. Comments to the changes point out the policies behind the changes, citing efforts to follow Internal Revenue Service practices. Summ. of Comments Received in Regard to Proposed Amendments to N.D. Admin. Code § 75-02-04.1 at 28 (1998). [Interpreting the guidelines as allowing depreciation to be added back into the obligor’s net income] is an absurd reading and directly contrary to the guideline definition of net income from self-employment which provides, “[n]et income from self-employment means total income, for internal revenue service purposes, of the obli-gor and the obligor’s business.” N.D. Admin. Code § 75-02-04.1-05(1) (1999).

2003 ND 150, ¶¶ 14-18, 669 N.W.2d 98. Although N.D. Admin. Code § 75-02-04.1-05 was amended again in 2003, those changes do not affect our holding in Torgerson. A trial court cannot include depreciation deductions in income when determining an obligor’s child support obligation.

[¶ 12] The trial court’s reasoning, that Jacobson’s “income for 1999 when he was working as a rancher in essentially the same capacity he is working for himself now” could perhaps be considered a determination that Jacobson voluntarily changed employment, resulting in a reduction of income. However, N.D. Admin. Code § 75-02-04.1-07(9), which governs such a situation, does not apply under these facts.

[I]f an obligor makes a voluntary change in employment resulting in reduction of income, monthly gross income equal to one hundred percent of the obligor’s greatest average monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided, less actual monthly gross earnings, may be imputed without a showing that the obligor is unemployed or underemployed.

N.D. Admin. Code § 75-02-04.1-07(9). In this case, the voluntary change in employment would have occurred in 1999. Jacobson moved to amend the second amended judgment on February 16, 2005. Even if income could be imputed due to a voluntary change of employment, Jacobson’s tax returns for the three years prior show losses in 2004 of $32,482, in 2003 of $28,033, and in 2002 of $18,387. Although Jacobson’s returns show a profit of $73,760 in 2001, this, perhaps conveniently, is more than 36 months before the third motion to amend judgment and two years after the change of employment in 1999. Section 75-02-04.1-07(9), N.D. Admin. Code, cannot be a basis for the trial court’s decision.

[¶ 13] Taking the average of Jacobson’s tax returns for the previous five years produces an annual loss of $5,431 a year. An obligor is presumed underemployed if, per month, he makes less than one-hundred and sixty-seven times the federal hourly minimum wage. N.D. Admin. Code § 75-02-04.1-07(2)(b). In this case, Jacobson makes far less than the amount specified in N.D. Admin. Code § 75-02-04.1 — 07(2)(b), and therefore is presumed to be underemployed.

[¶ 14] Relying on Torgerson and Lauer, Jacobson argues that a trial court cannot find a self-employed person to be underemployed for purposes of imputing income under the child support guidelines unless adequate evidence of the obligor’s gross income from earnings and of the prevailing amounts earned in the community of similarly-situated persons is presented. See Torgerson, 2003 ND 150, ¶ 10, 669 N.W.2d 98; Lauer, 2000 ND 82, ¶7, 609 N.W.2d 450. Jacobson misreads those cases and our child support guidelines. Section 75-02-04.1-07(2), N.D. Admin. Code, sets one hundred sixty-seven times the federal hourly minimum wage per month as a baseline level of income for a presumption that an obligor is underemployed. The presumption will arise for any obligor making less than that amount. N.D. Admin. Code § 75-02-04.1-07(2)(b). However, section 75-02-04.1-07(2)(a), N.D. Admin. Code, creates a higher level of income at which the presumption may also arise. Under that section, if an obligor’s income is less than six-tenths of the prevailing amount earned in the community by one with similar qualifications and similarly employed, the obligor is presumed to be underemployed. N.D. Admin. Code § 75-02-04.1-07(2)(a). An obligor who successfully proved he earned more than six-tenths of the prevailing amount earned in the community by one with similar qualifications and similarly employed would still be presumed underemployed if he made less than the amount specified in N.D. Admin. Code § 75-02-04.1-07(2)(b).

[¶ 15] The current federal minimum wage is $5.15 an hour. The current federal minimum wage went into effect on September 1, 1997. Thus, under N.D. Admin. Code § 75-02-04.1-07(2)(b), any obligor, self-employed or otherwise, would be presumed underemployed if he made less than $860.05 a month. In Torgerson, decided in 2008, the obligor made approximately $10,841 a year or $903.42 a month; just above the N.D. Admin. Code § 75-02-04.1 — 07(2)(b) threshold. 2003 ND 150, ¶4, 669 N.W.2d 98. In Lauer, decided in 2000, the obligor earned $27,484.50 a year; well above the amount specified under N.D. Admin. Code § 75-02-04.1-07(2)(b). 2002 ND 82, ¶ 8, 643 N.W.2d 713. 609 N.W.2d 450. In Torgerson and Lauer, unlike here, the presumption raised by N.D. Admin. Code § 75-02-04.1-07(2)(b) never arose. Jacobson is underemployed under the plain meaning of the code.

[¶ 16] An underemployed obligor, with exceptions not applicable here, has income imputed to him for purposes of making a child support determination under the guidelines.

[G]ross income based on earning capacity equal to the greatest of subdivisions a through c, less actual gross earnings, must be imputed to an obligor who is unemployed or underemployed.
a. A monthly amount equal to one hundred sixty-seven times the hourly federal minimum wage.
b. An amount equal to six-tenths of prevailing gross earnings in the community of persons with similar work history and occupational qualifications.
c. An amount equal to ninety percent of the obligor’s greatest average gross monthly earnings, in any twelve consecutive months beginning on or after thirty-six months before commencement of the proceeding before the court, for which reliable evidence is provided.

N.D. Admin. Code § 75-02-04.1-07(3). Here, the amount the trial court should have used to make its child support determination was one-hundred and sixty-seven times the federal hourly minimum wage per month, or $860.05 a month. Jacobson’s income for the thirty-six months before commencement of the proceeding shows losses. The only evidence Kobs presented at the hearing regarding the earnings of persons in the community with similar work history and occupational qualifications was evidence of the earnings of a carpenter, an occupation Jacobson last worked in the early 1980s. Therefore, Jacobson’s income must be imputed under N.D. Admin. Code § 75-02-04.1-07(3)(a).

[¶ 17] Jacobson argues that, by imputing one-hundred and sixty-seven times the federal hourly minimum wage per month, his monthly child support obligation should be $168. He is incorrect. “In applying the child support guidelines, an obligor’s monthly net income amount ending in fifty dollars or more must be rounded up to the nearest one hundred dollars, and must otherwise be rounded down to the nearest one hundred dollars.” N.D. Admin. Code § 75-02-04.1-02(5). Rounding Jacobson’s imputed income up to $900, the correct level of support in this case, for one child, is $207. See N.D. Admin. Code § 75-02-04.1-10.

[¶ 18] The effective date for this decreased level of support should be the date of service of Jacobson’s motion to decrease support, February 17, 2005. See Wigginton v. Wigginton, 2005 ND 31, ¶ 16, 692 N.W.2d 108 (noting “the amount of child support is set from the date of the motion to modify, absent a good reason for not doing so”).

Ill

[¶ 19] We reverse the trial court’s decision and remand instructing the trial court to enter an amended judgment setting Jacobson’s child support obligation at $207 a month.

[¶ 20]GERALD W. VANDE WALLE, C.J., DONOVAN J. FOUGHTY, D.J., DANIEL J. CROTHERS, and DALE V. SANDSTROM, JJ, concur.

[¶ 21] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of KAPSNER, J., disqualified.


author: MARING, Justice. VANDE WALLE, Chief Justice,

text:
    2006 ND 1
    Palmer J. MILLER, Claimant and Appellant v. WORKFORCE SAFETY AND INSURANCE, Appellee and REAL BUILDERS INC. Respondent.
    No. 20040064.
    Supreme Court of North Dakota.
    Jan. 5, 2006.
    Rehearing Denied Feb. 8, 2006.

      Stephen D. Little, Dietz & Little Lawyers, Bismarck, for claimant and appellant.
    Leo F.J. Wilking, Special Assistant Attorney General, Fargo, for appellee.
   MARING, Justice.

[¶ 1] Palmer Miller appealed from a district court judgment affirming a Workforce Safety and Insurance (“WSI”) order denying him further disability and vocational rehabilitation benefits. Miller argued that WSI failed to identify the first appropriate rehabilitation option and that he was denied a fair hearing due to improper ex parte communications. Previously, we remanded for an evidentiary hearing regarding alleged improper ex parte communications. Miller v. Workforce Safety and Insurance, 2004 ND 155, 684 N.W.2d 641. This opinion follows the Administrative Law Judge’s (“ALJ”) findings at the evidentiary hearing, and WSI’s final determination on the issue of ex parte communications on remand. We reverse WSI’s adoption of the ALJ’s findings that there were no improper éx'parte communications and the district court judgment affirming WSI’s order. We conclude Miller was not given a fair hearing, and we remand to WSI for a rehearing on the merits.

I

[¶2] In July 1993, Miller suffered a work-related injury to his lower back while employed as a carpenter with Real Builders, Inc. of Minot. The Worker’s Compensation Bureau, now WSI, accepted Miller’s claim and paid associated medical expenses and disability benefits. Between the time of his injury and the order at issue, Miller underwent numerous functional capacity evaluations (“FCE”) to determine his ability to return to gainful employment. A March 2001 FCE placed Miller at “a light job classification on a full time basis.” In September 2001, WSI notified Miller of its decision to discontinue his benefits effective October 19, 2001. Miller requested reconsideration of WSI’s decision and, in November 2001, WSI issued an order denying further benefits to Miller. In the order, WSI stated Miller was employable, without retraining, on a full-time basis, as a telephone solicitor, customer service representative, floor walker, or mail clerk. Miller requested a formal hearing, which was held in December 2002, before a temporary ALJ. The ALJ issued a recommended findings of fact, conclusions of law, and order, in which he concluded Miller was employable only on a part-time basis, could not obtain substantial gainful employment, and WSI’s rehabilitation plan had not identified an appropriate rehabilitation option.

[¶ 3] After the hearing, WSI’s outside litigation counsel, Lawrence Dopson, wrote a letter to WSI attorney, Tim Wahlin, expressing his concern with the ALJ’s recommendation and informing Wahlin of different possibilities that could arise depending on whether WSI adopted or rejected the ALJ’s decision. At oral argument, WSI’s outside counsel stated this was the normal procedure in these types of cases and he assumed the letter was transferred in some way to Nick Jolliffe, a WSI claims director. A copy of the letter was sent to Miller’s counsel, who acknowledged that he received it, but did not respond to it.

[¶ 4] In April 2003, Jolliffe issued WSI’s findings, conclusions, and order rejecting the ALJ’s recommendations. WSI concluded Miller was employable full time and ineligible for disability benefits after October 19, 2001. Miller appealed to the district court, which affirmed WSI’s order. The district court concluded that the difference between the ALJ’s recommended decision and WSI’s order was based on a difference in the weight and credibility given to the evidence. The district court concluded that Miller had received a fair hearing.

[¶ 5] On appeal, Miller claimed WSI failed to identify the first appropriate rehabilitation option and that he was denied a fair hearing due to improper ex parte communications. This Court temporarily remanded for an evidentiary hearing regarding the alleged improper ex parte communications. Miller, 2004 ND 155, 684 N.W.2d 641. The ALJ found that five relevant communications took place, four of which were ex parte and none of which were improper. Miller argues the agency failed to record pre-decision oral ex parte communications, hid the existence of written ex parte communications, and maintains that impermissible ex parte communications took place.

II

[¶ 6] Ex parte communications in administrative proceedings are those that are “without notice and opportunity for all parties to participate in the communication.” N.D.C.C. § 28-32-37(1). For administrative proceedings under the North Dakota Administrative Agencies Practice Act, ch. 28-32, N.D.C.C., certain ex parte communications are permitted while others are prohibited as improper. N.D.C.C. § 28-32-37. Section 28-32-37(1), N.D.C.C. provides:

Except as provided in subsections 2 and k. or unless required for the disposition of ex parte matters specifically authorized by another statute, an agency head or hearing officer in an adjudicative proceeding may not communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending, with any party, with any person who has a direct or indirect interest in the outcome of the proceeding, with any other person allowed to participate in the proceeding, or with any person who presided at a previous stage of the proceeding, without notice and opportunity for all parties to participate in the communication.

(Emphasis added). Subsection 2 of § 28-32-37, N.D.C.C. provides:

When more than one person is the hearing officer in an adjudicative proceeding, those persons may communicate with each other regarding a matter pending before the panel. An agency head or hearing officer may communicate with or receive aid from staff assistants if the assistants do not furnish, augment, diminish, or modify the evidence in the record.

(Emphasis added). Subsection 4 of § 28-32-37, N.D.C.C. provides:

In an adjudicative proceeding conducted by a hearing officer other than the agency head, counsel for the administrative agency and the agency head, without notice and opportunity for all parties to participate, may communicate and consult regarding the status of the adjudicative proceeding, discovery, settlement, litigation decisions,. and other matters commonly communicated between attorney and client, to permit the agency head to make informed decisions. This subsection does not apply after recommended findings of fact, conclusions of law, and orders have been issued, except counsel for the administrative agency and the agency head may communicate regarding settlement and negotiation after recommended findings of fact, conclusions of law, and orders have been issued.

[¶ 7] The ALJ found that five relevant communications took place, four of which were ex parte and none of which were improper. The ALJ divided the communications into two categories: those occurring before issuance of ALJ Temanson’s recommended decision (pre-decision); and those occurring after issuance of ALJ Te-manson’s recommended decision (post-decision).

[¶ 8] The ALJ concluded the three communications which occurred prior to issuance of the recommended decision were not improper ex parte communications because they were authorized by N.D.C.C. §' 28-32-37(4).

[¶ 9] The three pre-decision communications were authorized by N.D.C.C. § 28-32-37(4) because they occurred prior to the ALJ’s recommended decision. “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. “Words in a statute are to be understood in their ordinary sense, that is the meaning an ordinary person could get from reading the section.” State v. Velasquez, 1999 ND 217, ¶ 4, 602 N.W.2d 693. We will not read into the statute a requirement that any communications made prior to the decision which were not improper ex parte communications at that time, but which would be improper ex parte communications if they were made after the decision, must be disclosed after the ALJ’s decision. The statute does not require that communications which were not improper ex parte communications before the decision must subsequently be disclosed after the decision has been made. Rather, the statute allows these communications prior to the decision but does not allow these communications to take place once the decision is made. These three communications were not improper ex parte communications.

[¶ 10] Of the two post-decision communications, one, the draft findings of fact, conclusions of law, and final order to substitute for the ALJ’s decision, was found to not be an improper ex parte communication because it fell under the provisions of N.D.C.C. § 28-32-37(2).

[¶ 11] This leaves one final post-decision communication, the letter written by WSI’s outside counsel, mistakenly addressed to WSI’s inside counsel instead of to Nick Jolliffe. Here, the ALJ found that it does not make any difference whether the outside counsel’s letter was addressed to the inside counsel or to Nick Jolliffe. We do not agree.

[¶ 12] At the time of remand, Miller had established that WSI’s outside litigation counsel, Dopson, had written a letter to WSI’s inside claims counsel, Wahlin, expressing his concerns with the ALJ’s recommended findings of fact, conclusions of law, and order. Miller, 2004 ND 155, ¶ 3, 684 N.W.2d 641. At oral argument, outside litigation counsel Dopson told this Court he assumed his letter was transferred to the WSI claims director and decision-maker, Jolliffe. Id. A copy of the letter from Dopson to Wahlin was sent to Miller’s counsel. Id. There was no evidence in the record indicating whether the letter was transmitted to the decision-maker, Jolliffe, or whether the letter was discussed between inside counsel, Wahlin, and the decision-maker, Jolliffe.

[¶ 13] Following the evidentiary hearing on remand, the ALJ found that Jolliffe as claims director for WSI was responsible for reviewing the recommended findings of fact, conclusions of law, and order issued by the ALJ, and issuing WSI’s final order upon the rehearing. The ALJ also found that Jolliffe, as claims director, was the “agency- head” within the meaning of N.D.C.C. § 28-32-37 for the decisions made by WSI for its final order upon a rehearing. The ALJ additionally found that Wahlin was the inside counsel assigned to Miller’s case and Dopson was the outside counsel for Miller’s case.

[¶ 14] Generally, when a recommended findings of fact, conclusions of law, and order are completed by the ALJ assigned to a hearing, the Office of Administrative Hearings sends the ALJ’s decision, together with the hearing file, to Jolliffe. A copy of the ALJ’s decision is also sent to the injured worker or his counsel and to WSI. Jolliffe then reviews the ALJ’s decision and sends it to an administrative assistant in WSI’s legal department, who holds the file until a letter is received by Jolliffe from outside counsel commenting on the decision. When the letter from outside counsel is received by Jolliffe, it is delivered along with the hearing file and the ALJ’s decision to inside counsel assigned to the case for review.

[¶ 15] Here, on remand, the ALJ found that, although there is no evidence of what was done with the Miller file specifically, there is no reason to think it was handled other than in accordance with WSI’s customary practice. The ALJ found that, although customarily the letter from outside counsel commenting on the ALJ’s recommended decision would be written to the decision-maker, in this case, it was mistakenly addressed to WSI’s inside counsel. The ALJ found that outside counsel intended his comments to be communicated to the decision-maker. The ALJ found that although the letter was addressed to Wahlin, the inside counsel, it was likely redirected to Jolliffe, reviewed by him, and after his review, sent to WSI’s legal department and placed in Miller’s file.

[¶ 16] After reviewing Miller’s file, Wah-lin, inside counsel, drafted findings of fact, conclusions of law, and a final order rejecting the ALJ’s decision for Jolliffe’s review. The ALJ found that, typically, when a draft is sent to the decision-maker, outside counsel’s letter commenting on the ALJ’s decision is included. On remand, the ALJ found no evidence that Wahlin furnished, augmented, diminished, or modified the evidence of record for the preparation of the draft decision on Miller. In this case, Jolliffe somehow indicated his approval of the draft and returned the draft to the legal department for preparation of the final order. When the final order was completed, Jolliffe’s signature was applied “electronically” and copies were sent to the parties and the Office of Administrative Hearings.

[¶ 17] Under N.D.C.C. § 28-32-37 of the Administrative Agencies Practice Act:

1. Except as provided in ... an agency head or ... may not communicate, directly or indirectly, regarding any issue in the proceeding, while the proceeding is pending, with any party, with any person who has a direct or indirect interest in the outcome of the proceeding, with any other person allowed to participate in the proceeding,.. .without notice and opportunity for all parties to participate in the communication.

[¶ 18] The clear intent of this law is that Dopson, as outside counsel for WSI and as the person who litigated this proceeding, may not communicate with the WSI agency head, Jolliffe, without notice and an opportunity for Miller to respond. The law prohibits such communications without notice whether “direct or indirect.” Mer-riarn Webster’s Collegiate Dictionary 634-35 (11th ed.2005), defines “indirect” as “deviating from a direct line or course: roundabout.”

[¶ 19] In this case, the ex parte communication between outside counsel, Dopson, and the decision-maker, Jolliffe, occurred indirectly when the letter from Dopson addressed to inside counsel, Wahlin, was redirected to the decision-maker, Jolliffe, and again included with the draft decision sent from Wahlin to Jolliffe without notice and an opportunity for Miller to respond.

[¶ 20] The ALJ concluded on remand that because the letter from Dopson to Wahlin was copied to Miller’s counsel the communication was not improper ex parte. While it is true that the communication between Dopson and Wahlin was not improper ex parte, it does not address the communication that occurred when the letter was provided to the decision-maker Jolliffe. It is that communication from Wahlin to Jolliffe, without notice and an opportunity for Miller to be heard, that is the improper ex parte communication. The communication of outside counsel’s letter to the decision-maker, Jolliffe, was without the knowledge or participation of Miller or his counsel.

[¶ 21] The ALJ relies on Lawrence v. ND Workers Comp. Bureau, 2000 ND 60, ¶ 20, 608 N.W.2d 254, for his conclusion there was no improper ex parte communication. However, the ALJ’s interpretation allows that communication which is prohibited directly to be done indirectly.

[¶ 22] In Lawrence, our Court harmonized N.D.C.C. § 65-01-16(8) and provisions in chapter 28-32, now codified at N.D.C.C. § 28-32-37(1), prohibiting ex parte communications. Lawrence, 2000 ND 60, ¶ 20, 608 N.W.2d 254. As previously pointed out, N.D.C.C. § 28-32-37(1) prohibits direct and indirect communications between outside WSI counsel and the agency head without notice and opportunity to be heard while the proceeding is pending. Section 65-01-16(8), N.D.C.C., authorizes: “In reviewing recommended findings, conclusions, and orders, the organization may consult with its legal counsel representing it in the proceeding.” In Lawrence, our Court concluded all consultations that take place under N.D.C.C. § 65-01-16(8) cannot be improper ex parte because of N.D.C.C. ch. 28-32. Lawrence, 2000 ND 60, ¶ 20, 608 N.W.2d 254. This Court in Lawrence did not sanction providing a letter from outside counsel to the decision-maker without notice to the claimant and his counsel. See id. Miller and his counsel had no notice that the letter addressed to inside counsel would be provided to the decision-maker and had no opportunity to be heard by the decision-maker on the contents of that letter.

[¶ 23] In Lawrence, this Court recognized the strong policy reasons for prohibiting ex parte communications between an attorney who represented WSI’ at the adjudicative hearing and the agency decision-maker:

“One of the fundamental premises inherent in the concept of an adversary hearing, particularly if it is of the evidentiary type, is that neither adversary be permitted to engage in an ex parte communication concerning the merits of the case with those responsible for the decision. ... It is difficult to imagine a more serious incursion on fairness than to permit the representative of one of the parties to privately communicate his recommendations to the decision makers. To allow such activity would be to render the hearing virtually meaningless.”

Id. at ¶ 16 (quoting Camero v. United States, 179 Ct.Cl. 520, 375 F.2d 777, 780-81 (1967)).

[¶ 24] The crux of this case is that a letter from Dopson commenting on and supplementing the evidence was provided to the decision-maker without providing Miller notice and an opportunity to be heard by the decision-maker. We do not believe that N.D.C.C. § 28-32-37(2), which provides: “An agency head or hearing officer may communicate with or receive aid from staff assistants if the assistants do not furnish, augment, diminish, or modify the evidence in the record,” exonerates the communication of Dopson’s letter to the decision-maker from the prohibition of ex parte communications.

[¶ 25] We do not dispute that inside counsel, Wahlin, can confer with the decision-maker, Jolliffe, ex parte. However, when Wahlin furnished Jolliffe with a letter he received from outside litigation counsel without the knowledge of the claimant or his counsel, it was an improper communication and notice should have immediately been given to Miller either by Wahlin or Jolliffe. In addition, the letter sent to Wahlin goes beyond the evidence in the record of the case. At the hearing on remand, Dopson testified that his statements in his letter to Wahlin about a physician for Miller were not in evidence. He further testified that it is not typical to communicate to the decision-maker something outside the record. In this case, the letter from Dopson provided by Wahlin to Jolliffe “augmented” or supplemented the evidence in the record. That augmentation is plainly prohibited by N.D.C.C. § 28-32-37(2).

[¶ 26] We review an agency decision in the same manner as the district court under N.D.C.C. § 28-32-46. The ALJ’s order is not in accordance with the law and the procedures of the agency have not afforded the claimant, Miller, a fair hearing. Outside counsel can communicate with the agency head while an adjudicative proceeding is pending only if notice and opportunity to be heard is provided to the claimant.

[¶27] On remand, Jolliffe must be disqualified from participation in WSI’s decision. Section 28-32-37(7), N.D.C.C., provides:

If necessary to eliminate the effect of an ex parte communication received in violation of this section, an agency head or hearing officer in an adjudicative proceeding who receives the communication may be disqualified, upon good cause being shown in writing to the hearing officer or to the agency. The portions of the record pertaining to the communication may be sealed by protective order issued by the agency.

Dopson’s statements in his letter to Wah-lin, transmitted to Jolliffe, about a physician of Miller were not in evidence and were highly prejudicial against Miller’s position. As a result, we do not believe Jolliffe can participate in further proceedings in this matter.

Ill

[¶ 28] Because Miller was never provided with notice that the Dopson letter was provided to the decision-maker, Jolliffe, and considered by him in reversing the ALJ’s recommended findings of fact, conclusions of law, and order for judgment, we reverse WSI’s order and the district court judgment affirming WSI’s order and remand with direction for a rehearing on the merits with the agency head, Jolliffe, disqualified from participation.

[¶ 29]DALE V. SANDSTROM BURT L. RISKEDAHL LAURIE A. FONTAINE.

[¶ 30] The Honorable BURT L. RISKEDAHL, D.J., and the Honorable LAURIE A. FONTAINE, D.J., sitting in place of KAPSNER, J., and CROTHERS, J., disqualified.

VANDE WALLE, Chief Justice,

dissenting.

[¶ 31] I respectfully dissent.

[¶ 32] The ALJ concluded that the February 11, 2003 letter from Dopson to Wah-lin was not an ex parte communication, regardless of whether it was addressed to Wahlin or Jolliffe. The ALJ noted that a copy of the letter was provided to Miller’s counsel. By definition, it was not an ex parte communication under N.D.C.C. § 28-32-37(1) because the communication was shared with Miller’s counsel. In Lawrence v. N.D. Workers Comp. Bureau this Court harmonized N.D.C.C. § 65-01-16(8) with what is now codified as N.D.C.C. § 28-32-37 and determined that WSI can consult with its outside legal counsel in reviewing an ALJ’s recommendation as long as those communications are not ex parte. 2000 ND 60, ¶ 20, 608 N.W.2d 254.

[¶ 33] The other communication at issue was apparently a draft of findings of fact, conclusions of law, and final order for judgment prepared by Wahlin and communicated to Jolliffe. This communication is not contained in the record for this case. The ALJ determined.this communication was not an improper ex parte communication because it was permitted under N.D.C.C. § 28-32-37(2) which allows the agency head to “communicate with or receive aid from staff assistants if the assistants do not furnish, augment, diminish, or modify the evidence in the record.” The ALJ found no evidence Wahlin furnished, augmented, diminished, or modified the evidence. Miller, however, argues Wahlin furnished, augmented, diminished, or modified the evidence by commenting on the credibility of one of Miller’s witnesses. Specifically, Miller claims that by commenting on the evidence, Wahlin diminished the evidence with regards to Miller’s expert witness. Miller contends the prohibition on furnishing, augmenting, diminishing, or modifying the evidence is a prohibition on commenting on or evaluating the evidence and thus is an improper ex parte communication because Wahlin commented on the evidence.

[¶ 34] The language at issue in N.D.C.C. § 28-32-37(2), when adopted by the North Dakota Legislature in 1991, was taken from the 1981 Model State Administrative Procedure Act as adopted by the National Conference of Commissioners on Uniform State Laws (“NCCUSL”). North Dakota, along with Iowa, Kansas, and Tennessee, adopted the “furnish, augment, diminish, or modify” language. Iowa Code § 17A.17 (2005); Kan. Stat. Ann. § 77-525 (1997); Tenn.Code Ann. § 4-5-304 (1998). None of these states have interpreted the meaning of that provision.

[¶ 35] Most other states have adopted provisions regarding ex parte communications but have not included language about furnishing, augmenting, diminishing, or modifying evidence. Some states have language that is much more permissive than the North Dakota statute that explicitly allows agency heads to receive communications from staff assistants, staff attorneys, or legal counsel. See Ark.Code Ann. § 25-15-209 (2002); 5 ' Ill. Comp. Stat. 100/10-60 (2005); Me.Rev.Stat. Ann. tit. 5, § 9055 (2002); Nev.Rev.Stat. § 233B.126 (2003); Okla. Stat. tit. 75, § 313 (2002); R.I. Gen. Laws § 42-35-13 (1993); S.C.Code Ann. § 1-23-360 (2005); S.D. Codified Laws § 1-26-26 (2004); Vt. Stat.Ann. tit. 3, § 813 (2003); Wash. Rev.Code § 34.05.455 (2004). Other states have language that is much more restrictive than the North Dakota statute and allows little or no ex parte communication. See Mont. Code Ann. § 2-4-613 (2005); N.M. Stat. Ann. § 12-8-13 (1998); N.C. Gen.Stat. § 150B-35 (2003).

[¶ 36] North Dakota legislative history provides no assistance in interpreting what is meant by furnish, augment, diminish, or modify, nor do the comments of the drafters of the 1981 Model State Administrative Procedure Act. Under the rules of statutory construction staff assistants, including staff attorneys, are allowed to comment on or evaluate the evidence. “Words used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears, but any words explained in this code are to be understood as thus explained.” N.D.C.C. § 1-02-02. “In interpreting a statute, words must be given their plain, ordinary, and commonly understood meaning; and consideration should be given to the ordinary sense of the statutory words, the context in which they are used, and the purpose which prompted their enactment.” County of Stutsman v. State Historical Soc’y, 371 N.W.2d 321, 327 (N.D.1985). “If the language of a statute is clear and unambiguous, the letter of the statute cannot be disregarded under the pretext of pursuing its spirit because the legislative intent is presumed clear from the face of the statute.” Id. at 325.

[¶ 37] If the words furnish, augment, diminish, or modify were interpreted to preclude staff assistants from commenting on the evidence, there would be little staff assistants could do under this provision. If staff assistants were not allowed to comment on evidence, they would be unable to provide guidance to agency heads and this provision would serve no purpose. If the legislature had intended to prohibit staff assistants from commenting on evidence, they could have clearly stated that intention. They did not. Rather, it seems the provision prohibits staff assistants from physically providing or taking away from the evidence given to agency heads.

[¶ 38] This conclusion is supported by the NCCUSL’s work and comments on the 2005 Draft Revision of the Model State Administrative Procedure Act. The NCCUSL is currently in the process of revising the 1981 Model Act. The 2005 revision makes changes to the provision on ex parte communications. Section C4-106 of the 2005 revision provides in part:

(b) communication otherwise prohibited by subparagraph (1) of this section from an employee or representative of an agency that is a party to the hearing officer is permissible in any of the following circumstances:
(1) The communication is for the purpose of assistance and advice to the presiding officer or agency head from a person who has not served as investigator, prosecutor, or advocate in the proceeding or its preadjudicative stage. An assistant or advisor may evaluate the evidence in the record but shall not furnish, augment, diminish, or modify the evidence in the record; (emphasis added).

The comments to the 2005 draft revision explain that this section is taken from the California statute on ex parte communications. The comments further provide: “[t]he California sections address many of the problems that arise in this area, and attempt to distinguish technical, advisory contacts from agency staff to presiding officers or agency heads.” The drafters of the Model Act, by inserting the language “may evaluate the evidence in the record,” made it clear that staff assistants are allowed to evaluate the evidence. By adding this language to the provision while leaving the prohibition against furnishing, augmenting, diminishing, or modifying the evidence, the drafters have demonstrated that the 1981 language also contemplated allowing staff assistants to evaluate evidence. Although not a part of our statute as originally adopted, by inserting the language allowing staff assistants to evaluate evidence without removing the words furnish, augment, diminish, or modify, the NCCUSL has clarified that furnish, augment, diminish, or modify was not intended to prohibit comments on or evaluation of evidence. Under this reasoning, N.D.C.C. § 28-32-37(2) does not prohibit staff assistants from evaluating evidence.

[¶ 39] The majority opinion holds the improper ex parte communication between Dopson and Jolliffe occurred when Wahlin provided Jolliffe with the February 11, 2003 letter Dopson sent to Wah-lin. The majority finds Wahlin improperly augmented the evidence by providing Dopson’s letter to Jolliffe and the communication is an improper ex parte communication because Wahlin’s act of providing Jolliffe with the letter augmented or supplemented the evidence in violation of N.D.C.C. § 28-32-37(2). Wahlin did nothing to augment the evidence not only because N.D.C.C. § 28-32-37(2) does not prohibit staff assistants such as Wahlin from evaluating or commenting on evidence, but also because Wahlin did not comment on the evidence.

[¶ 40] Miller argues and the majority holds this communication was improper because Wahlin commented on the evidence. Wahlin did not change anything or comment on the evidence, Dopson commented on the evidence in a letter copied to Miller’s counsel pursuant to WSI’s customary practice adopted after Lawrence, and Wahlin forwarded that letter to Jol-liffe because Dopson inadvertently addressed the letter to Wahlin instead of Jolliffe. The letter containing Dopson’s comments on the evidence which was meant for Jolliffe was initially copied to Miller’s counsel. Because this procedure has been WSI’s standard practice since Lawrence, Miller’s counsel had notice and an opportunity to respond to the letter as is required by N.D.C.C. § 28-32-37(1). Although Miller’s attorney contends he had no reason to respond to Dopson’s letter to Wahlin, my experience has been that lawyers are not shy about responding to statements of which they have notice and with which they disagree. And significantly, that same comment made by Dopson in a letter directly addressed to Jolliffe would not, even under the majority’s analysis, have been ex parte and Jolliffe would have been free to discuss it with Wahlin. Therefore, the communication from Wahlin to Jolliffe was not an improper ex parte communication.

[¶ 41] GERALD W. VANDE WALLE, C.J.

      . We were told at oral argument that following the Court's decision in Lawrence, WSI established a practice of having its outside counsel comment on the ALJ's decision in a letter written to Jolliffe, which was copied to the injured worker or his or her counsel, and accepting any response from the injured worker. This practice has apparently not been incorporated in an administrative rule.


author:
GILBERTSON, Chief Justice.
      SABERS, Justice MEIERHENRY, Justice

text:
    2005 SD 122
    STATE of South Dakota, Plaintiff and Appellee, v. Brian Donald SCHOUTEN, Defendant and Appellant.
    No. 23462.
    Supreme Court of South Dakota.
    Considered on Briefs on Aug. 30, 2005.
    Decided Dec. 14, 2005.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Michelle M. Thomas-Pena, Minnehaha County Public Defender’s Office, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] While incarcerated at the State Penitentiary, Brian Donald Schouten was charged with one count of Assault by Inmate — Intentionally Causing Contact with Bodily Fluids or Human Waste under SDCL 22-18-26 for spitting on a correctional officer. Schouten pleaded not guilty and attempted to introduce evidence of diminished capacity at his jury trial, contending SDCL 22-18-26 is a specific intent crime. The trial court determined the crime is one of general intent, and granted the State’s motion in limine to bar Schouten from presenting evidence of diminished capacity. Schouten was found guilty and sentenced to one year in the State Penitentiary to be served consecutively to his current sentence, with no allowance for good time. Schouten appealed the conviction contending that the trial court erred when it ruled SDCL 22-18-26 is a general intent crime, and that the sentence imposed by the trial court was disproportionate to the crime committed as it resulted in an effective sentence of twenty-nine years. We affirm.

FACTS AND PROCEDURE

[¶ 2.] On February 1, 1996, Schouten was convicted on three counts of fourth degree burglary, two counts of third degree burglary, two counts- of second degree burglary and one count of first degree burglary. His prior criminal record included a 1990 conviction for third degree burglary, and a 1992 conviction for aggravated assault. Schouten was sentenced to fifty years in the South Dakota State Penitentiary for the 1996 burglary convictions.

[¶ 3.] On September 10, 2003, Schouten was housed in section five of the Jamison Annex of the State Penitentiary. During the evening hours, Correctional Officers John Heesch and Darrin Ewer were moving from cell to cell distributing supplies to inmates from a cart. As Heesch and Ewer entered section five, Schouten removed his pillow from the pillow case and threw the pillow case against the door of his cell. Ewer approached the cell and handed Schouten some items from the cart. Schouten then asked for a cup, to which Ewer replied “No, we don’t have any.cups on the cart but as soon as we are done we’ll get you one.” Ewer proceeded to the next cell. Schouten became agitated and upset. Heesch approached Schouten’s cell and tried to calm him down. Heesch stated the officers would bring him a cup after they finished passing supplies.

[¶ 4.] Schouten became more upset and began ranting and raving, and said “[t]hat’s the story of this fucking operation.” Schouten then spat on Heesch and yelled, “I’ll fucking see you in Chicago.” Heesch was standing a foot and a half to two feet away from the cell door when Schouten spat at him. Heesch observed the spit leave Schouten’s mouth and fly toward him through the mesh of the cell door. Heesch moved his head back and to the left, but the spit struck him on the right cheek in two places. Heesch collected the spit using swabs and placed it in an evidence bag. The swabs were processed at the state criminal lab and found to be human saliva.

[¶ 5.] Schouten was charged with violating SDCL 22-18-26 for spitting on a correctional officer, also known as the crime of sliming. A Habitual Offender Information was filed based on Schouten’s ten previous felony convictions. Against advice of counsel, Schouten did not enter a plea of not guilty by reason of insanity, but rather chose to enter a plea of not guilty.

[¶ 6.] At the jury trial on August 3, 2004, Schouten attempted to introduce testimony from Dr. David Bean, a psychiatrist who performed a forensic evaluation on Schouten that consisted of a personal interview and a review of his medical and treatment records following the incident. According to Schouten’s court appointed counsel, Bean’s testimony would not be used as part of an insanity defense, but rather to show diminished capacity and a resulting inability to form the requisite intent to violate SDCL 22-18-26 due to mental illness. The trial court ruled that SDCL 22-18-26 is a general intent crime for which diminished capacity is not a relevant defense, and granted the State’s motion in limine to exclude the testimony.

[¶ 7.] After a verdict of guilty was returned by the jury, Schouten asked for immediate sentencing and the State moved to dismiss the Habitual Offender Information. The trial court then sentenced Schouten to one -year on the charge of sliming. As a consequence of Schouten’s conviction under SDCL 22-18-26, he is not eligible for parole until he has served the one year sentence consecutively to the twenty-eight years remaining on his sentence for the 1996 felony burglary convictions, with no good time credit allowed.

[¶ 8.] Schouten raises two issues on appeal:

1. Whether the trial court erred when it ruled SDCL 22-18-26 is a general intent crime.
2. Whether the imposition of a one year sentence for violation of SDCL 22-18-26 was disproportionate to the crime committed and therefore constituted cruel and unusual punishment when it resulted in an effective sentence of twenty-nine years due to Schouten’s prior sentence for felony burglary.

STANDARD OF REVIEW

[¶ 9.] “Statutory interpretation and application are questions of law.” Block v. Drake, 2004 SD 72, ¶ 8, 681 N.W.2d 460, 463(citing Steinberg v. State Dept. of Military Affairs, 2000 SD 36, ¶ 6, 607 N.W.2d 596, 599). Conclusions of law are reviewed by .this Court under the de novo standard, with no deference to the circuit court. Id. (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25). Statutory construction is employed to discover the true intent of the legislature in enacting laws, which is ascertained primarily from the language used in the statute. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653(citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). We give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. Id.

ANALYSIS AND DECISION

[¶ 10.] Whether the trial court erred when it ruled SDCL 22-18-26 is a general intent crime.

[¶ 11.] Schouten argues that SDCL 22-18-26 defines a specific intent crime, and that he therefore was entitled to offer a defense of diminished capacity through Bean’s testimony. We have not had occasion to address the mens rea requirement of SDCL 22-18-26. However, we have addressed the dichotomy of specific intent/general intent crimes several times under other statutes. See State v. St. John, 2004 SD 15, ¶ 13, 675 N.W.2d 426, 428 (holding aggravated assault under SDCL 22-18-1.1(3) defines a general intent crime despite statutory language making an attempt an element of the offense); State v. Taecker, 2003 SD 43, ¶ 26, 661 N.W.2d 712, 718 (holding “intentionally omits” within SDCL 25-7-16 does not designate an additional mental state beyond that accompanying the act); State v. Heftel, 513 N.W.2d 397, 400 (S.D.1994) (holding the term “intentionally merely designates that the culpability required is something more than negligence or recklessness”); State v. Barrientos, 444 N.W.2d 374, 376 (S.D.1989) (holding “knowingly causes” in aggravated assault statute requires no mental state beyond the “knowledge” which must accompany the act of causing the bodily injury); State v. Balint, 426 N.W.2d 316, 318 (S.D.1988) (holding “intentionally injures” language in SDCL 22-34-1 requires no additional mental state beyond that accompanying the injurious act); State v. Huber, 356 N.W.2d 468, 473 (S.D.1984) (holding “[m]ere use of the term intentionally does not designate an additional mental state beyond that accompanying the act”). In order to determine whether a crime requires specific intent, or merely general intent, the legislative enactment that proscribes the conduct must be examined. State v. Shilvock-Havird, 472 N.W.2d 773, 776 (S.D.1991).

[¶ 12.] In the instant case, Schouten was convicted under SDCL 22-18-26, which provides:

Any convicted person under the jurisdiction of the Department of Corrections who intentionally throivs, smears, or otherwise causes blood, emesis, mucus, semen, excrement, or human waste to come in contact with a Department of Corrections employee, or visitor, or volunteer authorized by the Department of Corrections, or person under contract assigned to the Department of Corrections is guilty of a Class 6 felony.

(emphasis added). In order to ascertain whether SDCL 22-18-26 is a general or specific intent crime, we must also examine the definition of “intentionally” as it is used in the criminal code, and in SDCL 22-18-26.

[¶ 13.] SDCL 22-l-2(l)(b) codifies the common law distinction between specific intent and general intent crimes and provides in relevant part:

The words “intent, intentionally” and all derivatives thereof, import a specific design to cause a certain result or, when the material part of a charge is the violation of a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, a specific design to engage in conduct of that nature[.]

(emphasis added). Specific intent crimes require that the offender have “a specific design to cause a certain result.” See SDCL 22-l-2(l)(b). General intent crimes only require that the offender “engage in conduct” that is prohibited by the statute, “regardless of what the offender intends to accomplish.” Id. We have defined the two terms as follows: “Specific intent has been defined as meaning some intent in addition to the physical act which the crime requires, while general intent means an intent to do the physical act — or, perhaps, recklessly doing the physical act — which the crime requires.” Taecker, 2003 SD 43, ¶ 25, 661 N.W.2d at 718 (quoting Barrientos, 444 N.W.2d at 376).

[¶ 14.] Although our Legislature relied heavily on the Model Penal Code when it revised the South Dakota criminal code in 1976, it did not exclude references to general and specific intent. See Richard D. Casey, The 1976 Revision of the South Dakota Criminal Code: Putting the Field Code Out to Pasture, 22 SD LRev 98, 104 n. 39 (1977) (noting that South Dakota followed the lead of several states in adopting the different levels of culpability, which originated from Model Penal Code § 2.02(2)). Our criminal code culpability hierarchy, in descending order, includes: “malice, maliciously;” “intent, intentionally;” “knowledge, knowingly;” “reckless, recklessly;” and “negligent, negligently.” SDCL 22-l-2(l)(a)-(e).

[¶ 15.] Justice Meierhenry’s special writing correctly observes that due to ambiguity and confusion in defining and applying general and specific intent, the Model Penal Code developed an alternative method to analyze mens rea. United States v. Bailey, 444 U.S. 394, 403, 100 S.Ct. 624, 631, 62 L.Ed.2d 575, 586 (1980). The alternative method under the Model Penal Code utilizes a hierarchical approach for culpability that specifically excludes references to general and specific intent. Id. The Model Code hierarchy, in descending order, uses the terms “purpose,” “knowledge,” “recklessness,” and “negligence.” Id. at 403-04, 100 S.Ct. at 631, 62 L.Ed.2d at 586-87 (citing LaFave & Scott, Handbook on Criminal Law § 28, 194 (1972); Model Penal Code § 2.02 (1962)). While it is true that the use of the Model Code’s definition of “purpose” would have eliminated the present ambiguity, the South Dakota Legislature elected not to adopt that provision of the Model Penal Code. The retention of “intent” and “intentionally” in our criminal code preserved the ambiguity of the general/specific intent dichotomy in our criminal code.

[¶ 16.] In the instant case, Schouten was convicted under SDCL 22-18-26. SDCL 22-18-26 is a “prohibition of conduct of a certain nature” as defined by SDCL 22-l-2(l)(b). SDCL 22-18-26 specifically prohibits the conduct of intentionally throwing, smearing, or otherwise causing human waste to come into contact with a Department of Corrections employee. It requires the offender to intend to throw, smear or otherwise cause human waste to come into contact with a Department of Corrections employee. The statute lacks language requiring a specific design or purpose for doing the prohibited. Therefore, it is a general intent crime.

[¶ 17.] In contrast, SDCL. 22-18-26.1 prohibits the sliming of “law enforcement officers” by “any person,” and provides in relevant part:

Any person who, with the intent to assault, throws, smears, or causes human blood, emesis, mucus, semen, excrement, or human waste to come in contact with a law enforcement officer as defined in subdivision 22-1-2(22), a firefighter, a court services officer or designee, or an emergency medical technician, while performing official duties or actions, is guilty of a Class 1 misdemeanor,

(emphasis added). The two statutes are similar with the exception of the “intent to assault” language in SDCL 22-18-26.1. The inclusion of that language in SDCL 22-18-26.1 indicates the Legislature designed the statute so as to require a “specific design to cause a certain result.” In the case of SDCL 22-18-26.1 the “certain result” is to cause an assault. Therefore, SDCL 22-18-26.1 is a specific intent crime that requires both the intent to cause an assault and the act of throwing or smearing blood, body fluids or waste that comes into contact with a law enforcement officer.

[¶ 18.] A defense of diminished capacity is relevant to a specific intent crime, but not to a general intent crime. United States v. Kimes, 246 F.3d 800, 806 (6thCir.2001) (citing United States v. Gonyea, 140 F.3d 649, 650 (6thCir.1998) (citing United States v. Fazzini, 871 F.2d 635, 641 (7thCir.1989); United States v. Twine, 853 F.2d 676, 679 (9thCir.1988). In Kimes, “the defendant chose not to pursue an insanity defense, however, offering the testimony [on diminished capacity] only to ‘negate the mental state required for the offense....’” Id. However, because the crime charged was a general intent crime the proffered testimony on diminished capacity was not relevant and therefore not admissible. Id.

[¶ 19.] In the instant case, the State was required to prove that Schouten intentionally spat and caused his spit to contact the officer as a result of his physical act without lawful excuse. There is no language in the statute that required the State to prove “an additional mental state beyond that accompanying the act” itself. See Taecker, 2003 SD 43, ¶ 26, 661 N.W.2d at 718 (quoting Huber, 356 N.W.2d at 473). Therefore, the criminal act of sliming a correctional officer is a general intent crime and the trial court properly granted the State’s motion in limine to exclude Bean’s testimony concerning Schouten’s diminished capacity as it was not relevant to the crime charged.

[¶ 20.] We find Issue 2 to be without merit. We affirm.

[¶ 21.] KONENKAMP and ZINTER, Justices, concur.

[¶ 22.] SABERS and MEIERHENRY, Justices, concur specially.

SABERS, Justice

(concurring specially).

[¶ 23.] I agree that we should review the trial court’s evidentiary ruling based on the statutory definition of “intent” and “intentionally” contained in SDCL 22-1-2(l)(b) and that the definition of terms established by the South Dakota Legislature in chapter 22-1 completely replaces any prior inconsistent case law, specifically the concept of general and specific intent crimes.

MEIERHENRY, Justice

(concurring specially).

[¶ 24.] I agree that SDCL 22-18-26 is a crime for which “the material part of the charge is a violation of a prohibition against conduct of a certain nature” under SDCL 22-l-2(l)(b). I disagree, however, that the specific/general intent dichotomy remains a part of our legislative scheme. By the legislative adoption of the culpable mental states in SDCL 22-1-2(1) based upon the Model Penal Code, the prior distinction between general and specific crimes is no longer appropriate. The Legislature defined intent not as general or specific, but in matters of degree. See SDCL 22-1-2(1). That statute sets forth the degrees of “intent with which an act is done or omitted” as including “malice,” “intent,” “knowledge,” “reckless,” and “negligence.” Each degree of intent is specifically defined. It is under these definitions that we should analyze culpability.

[¶ 25.] The United States Supreme Court in United States v. Bailey discussed at length the dichotomy of general verses specific intent. 444 U.S. 394, 403-09, 100 S.Ct. 624, 631-34, 62 L.Ed.2d 575 (1980). The Court stated that the analysis no longer applies to federal crimes where Congress enacted into law specific degrees of culpability. Id. at 406, 444 U.S. 394, 100 S.Ct. at 632, 62 L.Ed.2d 575. When assigning levels of culpability, the Court said:

[When] dissecting [a criminal statute] and assigning a level of culpability to each element ... courts obviously must follow Congress’ intent as to the required level of mental culpability for any particular offense. Principles derived from common law as well as precepts suggested by the American Law Institute must bow to legislative mandates.

Id. So too should our common law and prior analysis bow to our legislative mandates. The arcane pigeonholing into general or specific intent is no longer relevant.

      . The Model Penal Code defines "purposely” as follows:
      A person acts purposely with respect to a material element of an offense when:
      (i) if the element involves the nature of his conduct or a result thereof, it is his conscious object to engage in conduct of that nature or to cause such a result; and
      (ii) if the element involves the attendant circumstances, he is aware of the existence of such circumstances or he believes or hopes that they exist.
      Model Penal Code § 2.02(2)(a).

      . As we stated in State v. Nagel, 279 N.W.2d 911, 915 (S.D.1979), "[t]he legislature may forbid the doing of an act and make its commission a crime without regard to the intent or knowledge of the doer.” The Legislature may also make a criminal act "a specific intent crime under one set of circumstances, and a general intent crime under a different set of circumstances.” Shilvock-Havird, 472 N.W.2d at 776-77 (citing United States v. Lar-dieri, 497 F.2d 317 (1974), on rehearing, 506 F.2d 319 (3rd Cir.1974); United States v. Stassi, 443 F.Supp. 661, (D.C.N.J.1977)). This is an instance of our Legislature requiring specific intent under SDCL 22-18-26.1 for any person who slimes a law enforcement officer, but requiring only general intent when the act is committed by a convicted person under the jurisdiction of the Department of Corrections.