author: MEIERHENRY, Justice.

text:
    2007 SD 36
    Thomas VANSTEENWYK, Claimant and Appellee, v. BAUMGARTNER TREES AND LANDSCAPING, Employer and Appellant, and Farmers Insurance Group, Insurer and Appellant.
    No. 24138.
    Supreme Court of South Dakota.
    Argued on Jan. 9, 2007.
    Decided April 11, 2007.

      Ronald A. Parsons, Jr., A. Russell Jank-low of Johnson, Heidepriem, Miner, Mar-low and Janklow, Sioux Falls, South Dakota, Attorneys for claimant and appellee.
    Eric C. Blomfelt, Jeremy D. Nauman of Eric C. Blomfelt & Associates, P.C., Windsor, Colorado Attorneys for employer, insurer and appellants.
   MEIERHENRY, Justice.

[¶ 1.] Thomas VanSteenwyk (Van-Steenwyk) sought workers’ compensation benefits for an injury he received while working for Baumgartner Trees and Landscaping. VanSteenwyk, an admitted regular marijuana user, had smoked marijuana the evening before the day of his workplace injury. Baumgartner and its insurer, Farmers Insurance Group (collectively referred to as Baumgartner), opposed the granting of benefits and argued that Van-Steenwyk’s off-duty illegal drug use constituted willful misconduct pursuant to SDCL § 62-4-37, which would bar him from receiving workers’ compensation benefits. The parties agreed to bifurcate the issues and address the issue of willful misconduct first. Based on the evidence, the South Dakota Department of Labor (Department) concluded that Baumgartner had not met its burden of proving that Van-Steenwyk’s willful misconduct proximately caused his injury. Baumgartner appealed the Department’s ruling to circuit court. The circuit court affirmed the Department’s ruling. We affirm the Department and circuit court.

FACTS AND BACKGROUND

[¶ 2.] VanSteenwyk began working for Baumgartner as a landscaper and laborer one year prior to his injury on April 30, 2004. Part of VanSteenwyk’s job included operating a skid loader. He was injured while attaching a bucket to the front of the skid loader. Attaching the bucket required a set of manual procedures and safety precautions. Baumgartner claims that VanSteenwyk’s off-duty marijuana use impaired his ability to perform the procedures or heed the safety precautions.

[¶ 3.] VanSteenwyk admitted that he used marijuana on a daily basis for the past fifteen to twenty years. Although VanSteenwyk never smoked marijuana before or during work hours, he routinely smoked marijuana after he completed work and before going to bed. Thus, the day before the injury following his usual routine, VanSteenwyk smoked marijuana. After completing a full work-day, Van-Steenwyk and his supervisor, Troy Dag-gett (Daggett), went to Daggett’s house to smoke marijuana and relax, just as they had done for the past year. After spending 30 to 60 minutes at Daggett’s house, VanSteenwyk returned to his home in Canistota, South Dakota, where he took a shower, had dinner with his family, watched television and put his children to bed. Prior to going to bed between midnight and 12:30 A.M., he once again smoked marijuana. VanSteenwyk stated that he smoked a total of three to five joints of marijuana that evening.

[¶ 4.] The next day, VanSteenwyk picked up Daggett for work at 8:00 A.M. They went to Baumgartner’s shop and then proceeded to their worksite. Brian Baumgartner, company owner, joined them at the worksite around 9:00 A.M. and worked with them most of the morning. VanSteenwyk was working with a skid loader as he often did as part of his duties. Around 11:30 A.M., Daggett asked Van-Steenwyk to remove the fork from the skid loader and attach the bucket so they could clean-up the worksite. Although Daggett believed two people should engage in this task, Baumgartner had given Daggett orders that only one person should be involved in changing the bucket in order to save man-hours.

[¶5.] The skid loader came equipped with various attachments for the hydraulic arm or boom, including a fork for lifting and a metal bucket for digging, loading and moving materials. The skid loader had various safety mechanisms to prevent injury while changing attachments. First, there were locking pins under the hydraulic arm that prevented it from being lowered beyond the height of the pin. However, Baumgartner had not instructed his employees to use the locking pins and normally did not use them himself. Second, the seat on the skid loader had a pressure switch, which turned off the hydraulics when there was no pressure on the seat. Third, the skid loader was equipped with a seatbelt safety system. The safety system would not let the loader start unless the seatbelt was securely buckled. If the seatbelt became unbuckled, the hydraulics would shut down. Baumgartner, however, had disengaged the seatbelt safety system and had installed a manual toggle switch in its place. Consequently when the pressure switch was triggered because of no pressure on the seat and the hydraulics shut off, the operator needed to sit on or apply pressure to the seat and reset the toggle switch in order to reengage the hydraulics.

[¶ 6.] Proceeding with his task of removing the fork and attaching the bucket, VanSteenwyk drove the skid loader to the bucket. When VanSteenwyk slid the bucket onto the skid loader’s hydraulic arm, the locking mechanism would not engage. On this particular skid loader, attaching the bucket could be difficult because the mechanism to which the bucket attached had previously been cracked and welded. The welding left the bucket slightly warped and off-center, making it difficult to slide the bucket onto the hydraulic arm and to lock it into place. Consequently, Baumgartner had instructed VanSteenwyk and the other employees to get off the seat and use their right legs to kick the front right locking lever to engage the locking mechanism. Whether Van-Steenwyk got off the seat to kick the locking lever was disputed. However, it was undisputed that while his right leg was extended, his left foot accidentally pushed the pedal on the floor of the skid loader. By pushing this pedal, VanSteenwyk inadvertently lowered the hydraulic arm, which caused his leg to become pinned between the lip of the cab and the crosspiece of the arm. VanSteenwyk was able to disengage the hydraulics before any bones were broken but not before suffering a serious crush injury that required hospitalization. A urinalysis at the hospital revealed marijuana in VanSteenwyk’s system.

[¶ 7.] Baumgartner contends that Van-Steenwyk was impaired by the marijuana and that the impairment caused his injury. At the hearing before the Department, Baumgartner presented expert testimony to support his claim. Dr. Michael Evans, a board certified toxicologist, testified that based on the high level of THC detected in VanSteenwyk’s urinalysis, he was significantly impaired at the time of the accident although a casual observer would not notice any signs of impairment. However, Dr. Evans indicated that he could not give an opinion as to whether VanSteenwyk’s impairment caused the accident.

[¶ 8.] VanSteenwyk presented deposition testimony of Dr. John Vasiliades, an expert in clinical and forensic toxicology. Dr. Vasiliades disagreed with Dr. Evans’ opinion that VanSteenwyk was impaired at the time of the accident. Dr. Vasiliades testified that he “would not expect any impairment from the effects of the drug 12 hours” after ingestion. He also testified that it was unlikely that VanSteenwyk suffered any impairment on the day of the accident because of the observations of VanSteenwyk’s co-workers. All of Van-Steenwyk’s co-workers testified that on the morning of the accident VanSteenwyk was alert, coordinated, working hard, and performing a routine task he had performed many times.

[¶ 9.] The Department ruled that Van-Steenwyk was not barred from receiving workers’ compensation benefits because of his off-duty marijuana use. Baumgartner appeals and raises one issue:

ISSUE

Whether the Department of Labor and the circuit court erred in finding that VanSteenwyk’s illegal drug use was not a substantial factor in causing his injuries.

STANDARD OF REVIEW

[¶ 10.] In workers’ compensation cases our standard of review is established by SDCL 1-26-36. “Under SDCL 1-26-36, the applicable standard of review ‘will vary depending on whether the issue is one of fact or one of law.’ ” Orth v. Stoebner & Permann. Const., Inc., 2006 SD 99, ¶ 27, 724 N.W.2d 586, 592 (quoting Tischler v. United Parcel Service, 1996 SD 98, ¶ 23, 552 N.W.2d 597, 602). “When the issue is a question of fact, then the actions of the agency are judged by the clearly erroneous standard; and when the issue is a question of law, then the actions of the agency are fully reviewable [i.e., de novo].” Id. (internal quotations and citations omitted). “Mixed questions of fact and law are fully reviewable.” Id. (quoting Brown v. Douglas Sch. Dist., 2002 SD 92, ¶ 9, 650 N.W.2d 264, 268).

[¶ 11.] The applicable standard of review also varies depending on whether the Department was presented with live testimony or documentary evidence. When findings of fact are made based on live testimony, the clearly erroneous standard applies. Id. ¶28. “Deference and great weight are given to the hearing examiner on fact questions. ‘When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule.’ ” Id. (quoting Brown, 2002 SD 92, ¶9, 650 N.W.2d at 268).

ANALYSIS

[¶ 12.] Baumgartner argues that the Department erred when it failed to find that VanSteenwyk’s willful misconduct in the form of off-duty illegal drug use was a substantial factor in causing the accident. SDCL 62-4-37 provides that injuries caused by willful misconduct by illegal use of Schedule I or Schedule II drugs are not compensable:

No compensation shall be allowed for any injury or death due to the employee’s willful misconduct, including intentional self-inflicted injury, intoxication, illegal use of any schedule I or schedule II drug, or willful failure or refusal to use a safety appliance furnished by the employer, or to perform a duty required by statute. The burden of proof under this section shall be on the defendant employer.

Under the statute, the employer has the burden of proving by a preponderance of the evidence that the employee engaged in willful misconduct and that the employee’s injuries were “due to the employee’s willful misconduct.” Goebel v. Warner Transportation, 2000 SD 79, ¶¶ 12-13, 612 N.W.2d 18, 22 (quoting SDCL 62-4-37); see also Holscher v. Valley Queen Cheese Factory, 2006 SD 35, ¶ 55, 713 N.W.2d 555, 570. “The words ‘due to’ in SDCL 67-4-37 refer to proximate cause.” Goebel, 2000 SD 79, ¶ 13, 612 N.W.2d at 22. Consequently, an employee can be denied compensation under SDCL 62-4-37 if the employer can show by a preponderance of the evidence “that the employee’s “willful misconduct’ was a proximate cause of the claimed injury.” Holscher, 2006 SD 35, ¶ 55, 713 N.W.2d at 570. “An employee’s willful misconduct will be the proximate cause of an injury when it ‘is a cause that produces [the injury] in a natural and probable sequence and without which the [injury] would not have occurred.’ ” Id. ¶ 56 (quoting Estate of Gaspar v. Vogt, Brown & Merry, 2003 SD 126, ¶ 6, 670 N.W.2d 918, 921). The employer is not required to show that the employee’s misconduct was the only cause, nor the last or nearest cause of the injury because an injury may have had several contributing or concurring causes, including willful misconduct. Id. Rather, under SDCL 62-4-37, an injury will be barred only when the employee’s willful misconduct was a substantial factor in causing the injury. Id.

[¶ 13.] The Department assumed, without making any specific findings, that Van-Steenwyk’s marijuana use constituted willful misconduct. Therefore, the only issue before us is whether the Department erred when it concluded that Baumgartner failed to show by a preponderance of the evidence that VanSteenwyk’s injury was due to his use of marijuana the night before the accident.

1. Proximate Cause Testimony

[¶ 14.] Baumgartner argues that he met his burden of proof through the expert testimony he offered at the administrative hearing and cites as error several findings of fact by the Department. Because Baumgartner’s experts testified live at the administrative hearing, the clearly erroneous standard is applicable. Baum-gartner had the burden to show by a preponderance of the evidence that VanSteen-wyk’s willful misconduct proximately caused the accident, that is, Baumgartner had the burden of proving that VanSteen-wyk’s off-duty use of marijuana was a substantial factor in causing his injury. Holscher, 2006 SD 35, ¶ 55, 713 N.W.2d at 570. Baumgartner argues that the testimony of his experts, Dr. Evans and Dr. Alcorn, provided “abundant evidence— largely ignored by the Department — from which the Department might have properly inferred, deduced, or otherwise concluded that VanSteenwyk’s illegal drug use was a substantial factor in causing his injury.”

[¶ 15.] Baumgartner argues that the Department placed unwarranted reliance on the absence of explicit testimony from Dr. Evans that VanSteenwyk’s marijuana use was a proximate cause of his accident. Dr. Evans offered the following observation in a written report prepared for trial: “[T]he impairment effects produced by [VanSteenwyk’s] use of Marijuana is a significant causative factor in workplace accidents such as Mr. Thomas E. Van-Steenwyk[’s] accident on April 30, 2004.” However, at the hearing, when Dr. Evans was specifically asked whether VanSteen-wyk’s off-duty marijuana use played a role in the accident, he declined to offer an opinion, stating, “As a scientist, I would never claim that — first of all, as an accident reconstruction — that the marijuana use caused the accident. I’m not an accident reconstructionist, absolutely not.... No, I cannot tell you that the marijuana caused the accident.” Based on this testimony, the Department made the following finding of fact:

Dr. Evans candidly admitted that he could not say, by a preponderance of the evidence, that Claimant’s marijuana use on April 29th was a proximate cause of his workplace injury on April 30th. He testified that he was “absolutely not” able to opine on the causation of the accident.

Baumgartner argues that the Department misinterpreted Dr. Evan’s answer. Baum-gartner contends that Dr. Evan’s response did not address the legal issue of causation but rather indicated that he had solely assessed causation with the accuracy of scientific analysis that would be necessary to absolutely prove causation. If there was confusion, there was no attempt to clarify or explain Dr. Evans’ proffered answer regarding the causation issue on redirect. Regardless, the Department was in the best position to interpret Dr. Evans’ testimony and we are not left with a definite and firm conviction that a mistake has been made. Thus, we cannot say that the Department’s finding was clearly erroneous.

[¶ 16.] Additionally, Baumgartner argues that Dr. Evans was not required to testify specifically that VanSteenwyk’s drug use was a proximate cause of the accident. Baumgartner argues that in Driscoll v. Great Plains Marketing Co., this Court held that proximate cause was established on the basis of testimony comparable in kind to that presented by Dr. Evans. 322 N.W.2d 478, 479 (S.D.1982). The facts in Driscoll are distinguishable. In Driscoll, the Department denied the employee workers’ compensation benefits because he drank five to six beers immediately before he was injured in a car accident on his way home from work. Id. at 478. The deputy sheriff, who investigated the accident, testified that claimant was impaired at the time of the accident and that claimant was one hundred times more likely to be involved in an accident than if he had nothing to drink. Id. at 479. This Court concluded that the Department’s findings were not clearly erroneous. Id. at 480.

[¶ 17.] Dr. Evans testified about the general effects of marijuana use and identified two categories of effects. The first is the “euphoric period” which may last three to five hours from when the user begins to smoke. The second category is the “impairment effects” period. Dr. Evans testified that one study showed the “impairment effects” period can last anywhere from 24 to 48 hours after ingesting the drug. Dr. Evans noted that a person may suffer from the following impairments when he is a chronic user of marijuana: diminishment of sequential thinking abilities, dullness in thought processing and activity, hand eye coordination, sensory skills, slowing cognitive processing and reaction time during complex tasks. Based on VanSteen-wyk’s use of marijuana on the night prior to the accident and the large amount of THC detected in his urinalysis, Dr. Evans concluded that VanSteenwyk was impaired by the marijuana at the time of the accident. However, as previously noted, Dr. Evans testified that he could not conclude that VanSteenwyk’s marijuana use or impairment caused the accident. Nevertheless, Baumgartner emphasizes the following statement from Dr. Evans as sufficient to show proximate cause: “[T]he impairment effects produced by [VanSteenwyk’s] use of Marijuana is a significant causative factor in workplace accidents such as Mr. Thomas E. VanSteenwyk[’s] accident on April 30, 2004.” However, there was conflicting testimony as to whether VanSteenwyk was impaired at the time of the accident and the administrative law judge (ALJ) noted that Baumgartner’s experts did not establish that “Claimant’s impairment, if any, was a proximate cause of the accident.”

[¶ 18.] Dr. Alcorn, an expert in accident reconstruction, also testified on behalf of Baumgartner. Dr. Alcorn’s written report indicated that VanSteenwyk’s “accident was caused by the operator’s failure to follow accepted safety procedures and by not locking the boom in the up position before attempting to lock the bucket to the mounting plate.” However, at the hearing Baumgartner testified that he had not instructed his employees to use the locking pins when changing the attachments on the skid loader. Dr. Alcorn subsequently testified that he was “surprised” and “shocked” to learn that the locking pins were not being used by Baumgartner or the other employees noting that the locking pins could have prevented VanSteen-wyk’s accident.

[¶ 19.] Dr. Alcorn also offered the following opinion in a written report prepared for trial: “The operator exercised poor judgment in his operation of the machine. He also lacked coordination in the use of his legs and feet in addition to his slow response time once he realized he had made an error.” However, at the hearing, when Dr. Alcorn was asked whether the accident would have been prevented if VanSteenwyk would have reacted quicker, Dr. Alcorn responded, “You know, it’s really hard for me to say if he could have reacted quicker. It’s just — I don’t think I can say.”

[¶20.] Neither Dr. Alcorn nor Dr. Evans could offer any opinion as to what role, if any, VanSteenwyk’s marijuana use played in the accident. We agree that Baumgartner was not required to present an expert’s opinion that the claimant’s willful misconduct proximately caused the injury in order to prevail. The ultimate decision on proximate cause is made by the finder of fact based on all the evidence, including expert and eye-witness testimony. However, the burden of proof lies with the employer to show by a preponderance of the evidence that an employee’s willful misconduct proximately caused the injury. SDCL 62-4-37. The determination of proximate cause was within the province of the factfinder, here the ALJ. The ALJ concluded that neither Dr. Evans nor Dr. Alcorn’s testimony met Baumgartner’s burden of proof. Except for their testimony, there was no other evidence that VanSteenwyk was impaired the day of the injury. We give great deference and weight to the Department’s findings under the clearly erroneous standard. Orth, 2006 SD 99, ¶28, 724 N.W.2d at 592. Based on all the evidence, we cannot say that the Department’s findings on proximate cause are clearly erroneous. Thus, Baumgartner’s arguments regarding proximate cause fail.

2. Credibility of Experts

[¶ 21.] Baumgartner cites as error that the Department, as factfinder, failed to examine Dr. Evans’ credibility or demeanor or provide any observations about, or evaluation of, his testimony. Baumgartner also contends that the Department erred when it failed to examine the credibility of Dr. Vasiliades pointing to Dr. Evans’ opinion of Dr. Vasiliades that he was not a “competent, qualified toxicologist.” We have consistently deferred to the ALJ when evaluating live testimony because of the opportunity to view the witnesses and be in the best position to determine the “credibility of the witnesses, the import to be accorded their testimony, and the weight of the evidence.” Schaefer ex rel. S.S. v. Liechti, 2006 SD 19, ¶ 8, 711 N.W.2d 257, 260 (quoting Baun v. Estate of Kramlich, 2003 SD 89, ¶ 21, 667 N.W.2d 672, 677). Likewise, we have not required the ALJ to always make specific findings of fact regarding a witness’ credibility or demeanor. Baumgartner cites no authority supporting this requirement. The failure to cite supporting authority waives the issue. Burch v. Bricker, 2006 SD 101, ¶ 20, 724 N.W.2d 604, 610. Even if the issue was not waived, the Department’s decision was based on Baumgartner’s failure to meet his burden of proof and not on the credibility of the expert witnesses.

3. Incorrect Legal Standard

[¶ 22.] Baumgartner also argues that the Department applied an incorrect legal standard. Baumgartner contends that the following test articulated by the Department in its memorandum decision was incorrect: “What Employer must demonstrate to prevail with its misconduct defense is that Claimant’s intoxication was the proximate cause of the operator error that caused the injury.” (Emphasis added). Baumgartner points out that the appropriate legal standard is that the employer must establish that the misconduct was “a” proximate cause of the operator error that caused the injury. We agree that the proper legal standard is that the employer must show that the misconduct was a proximate cause of the injury. Holscher, 2006 SD 35, ¶ 55, 713 N.W.2d at 570.

[¶ 23.] Nevertheless,, the record indicates that the Department used the correct standard. We find only one instance in the record where the Department used the phrase “the proximate cause.” The remainder of the written decision, as well as the findings of fact and conclusions of law, refers to “a” proximate cause. Furthermore, there is no indication that the Department’s decision rested on a determination that VanSteenwyk’s marijuana use was “the” proximate cause of the accident. Specifically, the ALJ made the following conclusion of law: “Claimant’s off-duty marijuana use was not a substantial factor or a proximate cause of his workplace injury.” (Emphasis added). Accordingly, Baumgartner’s argument is without merit.

[¶ 24.] We affirm the Department’s determination that Baumgartner failed to show by a preponderance of the evidence that VanSteenwyk’s injury was “due to” his willful misconduct.

[¶ 25.] Affirmed.

[IT 26.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.

      . VanSteenwyk's size 13 shoe and the fact that the pedal took up a large area of the floor led the experts to believe that his left foot inadvertently hit the pedal.

      . A crush injury is described as follows:
      A crush injury occurs when a body part is subjected to a high degree of force or pressure, usually after being squeezed between two heavy or immobile objects. Damage related to crush injury includes: laceration (open wound), fracture, bleeding, bruising, compartment syndrome, and others.
      Medline Plus Medical Encyclopedia, U.S. National Library of Medicine, http://www. nlm.nih.gov/medlineplus/ency/article/ 000024.htm.

      . Baumgartner argues that Dr. Evans could not testify as to whether VanSteenwyk’s use was the proximate cause of the injury because it is a legal term and he testified from a scientific perspective. However, in Goebel v. Warner Transp., Dr. Evans testified that a truck-driver's on-duty snorting of methamphetamine and smoking of marijuana was a substantial factor in his injuries when he subsequently passed out behind the wheel and drove off the road. 2000 SD 79, ¶ 7, 612 N.W.2d at 20-21. The Court noted that Dr. Evans testified "that to a reasonable degree of scientific probability, Goebel's use of methamphetamine and marijuana impaired his driving ability, and that the impairment was a substantial factor in his accident.” Id. The record in this case is void of similar testimony from Dr. Evans.

      . Baumgartner argues that the Department erred in determining that VanSteenwyk was operating the skid loader in the “exact fashion” that he had been instructed by Baum-gartner. Baumgartner contends that Van-Steenwyk was sitting while he extended his leg to kick the locking lever although Baum-gartner had instructed him to stand. Nevertheless, this fact is not relevant to the ultimate issue in this case-whether VanSteenwyk’s injury was due to his marijuana use.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2007 SD 39
    Lynette D. GISI, Plaintiff and Respondent, v. Michael S. GISI, Defendant, Petitioner and Appellant.
    No. 24145.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2007.
    Decided April 11, 2007.

      Michael S. Gisi, Bushnell, Florida, Pro se, defendant, petitioner and appellant.
   PER CURIAM.

[¶ 1.] Michael S. Gisi appeals pro se a circuit court order dismissing his petition for modification of child support. We affirm in part, reverse in part and remand.

BACKGROUND

[¶ 2.] Michael and Lynette D. Gisi were married on August 21, 1993, and divorced February 6, 2001. Michael was incarcerated in the Florida State Penitentiary at the time of the divorce. The court awarded Lynette full physical and legal custody of the couple’s only minor child and ordered Michael to pay $190 per month for child support. During the divorce proceeding, Michael requested a deviation from the child support statutory guidelines due to his incarceration and lack of earning capacity, but the court denied his request. The court determined that Michael’s incarceration was a voluntary termination of his employment, thus no deviation was warranted. The court imputed a minimum wage income to Michael for calculation of his child support obligation.

[¶ 3.] On December 27, 2005, Michael filed a pro se petition for modification of child support. He again requested a deviation based on his incarceration and complete lack of income. A hearing on the petition was held before a court-appointed referee. The referee concluded that Michael’s incarceration was a result of his voluntary actions and that his prior income was imputed to him based on this fact. Therefore, the referee recommended that the court dismiss Michael’s petition for modification upon the merits and with prejudice.

[¶ 4.] Michael objected to the referee’s report, claiming a deviation from the statutory guidelines was warranted pursuant to SDCL 25-7-6.10. He also submitted that a reduction from $190 per month to $100 per month was necessary given the fact that his imputed monthly net income of minimum wage fell within the $0-$800 range in the statutory guidelines. And, only a $100 per month child support obligation is required for this range. The court held a hearing on Michael’s objections to the referee’s report and ultimately dismissed the petition for modification of child support upon the merits and with prejudice based upon the recommendation of the referee.

[¶ 5.] Michael appeals pro se, raising two issues:

1. Whether the circuit court erred in dismissing Michael’s petition for modification of child support.
2. Whether Michael was denied due process or access to the courts when he was unable to obtain South Dakota law materials concerning modification of child support while incarcerated in a foreign jurisdiction.

STANDARD OF REVIEW

[¶ 6.] Our standard of review in child support modification cases is well settled:

[W]e review a child support referee’s findings of fact under the clearly erroneous standard and questions of law are fully reviewable. Mixed questions of law and fact are classified as questions of law and are reviewable de novo. In addition, when the circuit court has adopted a child support referee’s findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law. Further, in applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made.

Wagner v. Wagner, 2006 SD 31, ¶ 5, 712 N.W.2d 653, 656 (citing Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774). Also, “[t]his [C]ourt’s standard of review in child support cases is whether the trial court abused its discretion in setting the support.” Sjolund v. Carlson, 511 N.W.2d 818, 820 (S.D.1994) (citation omitted).

ANALYSIS AND DECISION

1. Whether the circuit court erred in dismissing Michael’s petition for modification of child support.

[¶ 7.] “SDCL 25-7-6.2 sets forth mandatory guidelines which courts must follow in setting child support.” Schwab v. Schwab, 505 N.W.2d 752, 756 (S.D.1993) (citation omitted). That statute provides that “[t]he child support obligation shall be established in accordance with the following schedule subject to such revisions or deviations as may be permitted pursuant to §§ 25-7-6.1 to 25-7-6.18, inclusive.” SDCL 25-7-6.2 (emphasis added).

[¶ 8.] According to the support obligation schedule in SDCL 25-7-6.2, the minimum monthly child support order for one child is $100. This obligation is imposed for a noncustodial parent with a monthly net income between $0-$800. SDCL 25-7-6.2 (emphasis added). Because the court imputed a minimum wage income to Michael, his monthly gross income is $893. However, “[t]he trial court is required to calculate the parents’ monthly net income, which is equal to gross income less allowable deductions, as codified at SDCL 25-7-6.3 and 25-7-6.7.” Midzak v. Midzak, 2005 SD 58, ¶ 30, 697 N.W.2d 733, 740-41. Thus, the obligation is determined by the obligor’s monthly net income, not his gross income.

[¶ 9.] SDCL 25-7-6.7 provides in relevant part:

Deductions from monthly gross income shall be allowed as follows:
(1) Income taxes payable based on the applicable tax rate for a single taxpayer with one withholding allowance and a monthly payroll period rather than the actual tax rate;
(2) Social security and medicare taxes based on the applicable tax rate for an employee or a self-employed taxpayer.

According to the child support obligation worksheet supplied by the Department of Social Services, the amount of income tax deducted for a single taxpayer is $40 and the amount of Social Security and Medicare tax deducted is $68. Thus, Michael’s monthly net income falls below $800 after tax deductions. Therefore, his support obligation should be $100 under the mandatory guidelines.

[¶ 10.] This amount is also within the emboldened area of the schedule. SDCL 25-7-6.2. Thus, the court shall compare $100 to Michael’s proportionate share using both parents’ monthly net incomes. Id. “The lesser amount establishes the noncustodial parent’s child support order.” Id. Michael’s proportionate share is $190 according to the child support obligation worksheet used by the court in establishing Michael’s initial support obligation. Because $100 is less than $190, Michael’s child support obligation should be $100.

[¶11.] However, SDCL 25-7-6.2 does provide for deviations from the schedule. But, “[t]here may be no deviation from the guidelines unless there is an entry of specific findings concerning factors for deviation listed in SDCL 25-7-6.10.” Schwab, 505 N.W.2d at 756. Also, “[deviations from the support obligation schedule at SDCL 25-7-6.2 are possible, but must be raised by the parties in order to be considered by the trial court.” Midzak, 2005 SD 58, ¶ 30, 697 N.W.2d at 741 (citing SDCL 25-7-6.10). Although Michael argued for a deviation from the schedule due to his incarceration, there was no argument made on behalf of Lynette for a deviation exceeding the schedule.

[¶ 12.] Here, Michael’s support obligation under the schedule is $100, but the referee and court imposed an obligation of $190. However, neither the child support referee nor the circuit court entered findings supporting a deviation exceeding the schedule, and Lynette did not argue for such a deviation. The referee merely imputed Michael’s prior income to him and concluded that there was no factual basis to reduce his $190 child support obligation.

[¶ 13.] Thus, the circuit court erred by failing to follow the mandatory provisions of the South Dakota child support statutory scheme and by dismissing Michael’s petition for modification of child support. Therefore, we reverse and remand this issue for the trial court to recalculate the child support award in accordance with the mandatory support obligation schedule in SDCL 25-7-6.2.

[¶ 14.] As discussed above, Michael did request a deviation from the schedule based upon his incarceration, but the circuit court denied a deviation. The circuit court concluded that Michael’s incarceration was a voluntary act that reduced his income, so no deviation was warranted. Michael argues that the circuit court should have deviated from the child support schedule pursuant to SDCL 25-7-6.10(2). SDCL 25-7-6.10 provides in entirety:

Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:
(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;
(2) Any financial condition of either parent which would make application of the schedule inequitable. If the total amount of the child support obligation, including any adjustments for health insurance and child care costs, exceeds fifty percent of the obligor’s monthly net income, it shall be presumed that the amount of the obligation imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set forth in this section;
(3) Any necessary education or health care special needs of the child;
(4) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;
(5) The obligation of either parent to provide for subsequent natural children, adopted children, or stepchildren. However, an existing support order may not be modified solely for this reason; or
(6) The voluntary act of either parent which reduces that parent’s income.

[¶ 15.] Whether incarceration warrants or requires deviation of a child support obligation under SDCL 25-7-6.10 has not been addressed by any published South Dakota decision. In one case, however, this Court held that a circuit court order stating that a parent “did not have to make child support payments because of his incarceration” foreclosed the operation of the automatic child support statute enacted after the order was entered. Huth v. Hoffman, 464 N.W.2d 637, 639 (S.D.1991). Thus, this Court has allowed an order permitting a deviation due to incarceration.

[¶ 16.] On the other hand, this Court did not find an abuse of discretion when a circuit court refused a deviation from the schedule for a noncustodial parent who was attending school full-time. Kost v. Kost, 515 N.W.2d 209, 215 (S.D.1994). In Kost, we reasoned that the noncustodial parent had voluntarily chosen to return to school and forego employment. Id. “Therefore, she ha[d] no basis upon which to request a deviation from her child support obligation.” Id. This Court also addressed a request for a deviation under SDCL 25-7-6.10(2) in Hawkins v. Peterson, 474 N.W.2d 90, 94 (S.D.1991). In Hawkins, “the referee considered father’s statement that he had depleted his savings and had no other income than his social security disability payments. The referee found that there was no basis for deviation.” Id. On appeal, this Court found nothing in the record to indicate that the referee’s finding was clearly erroneous. Id.

[¶ 17.] Furthermore, we affirmed a court’s deviation exceeding the schedule in Woehl v. Woehl, when the noncustodial parent was terminated from employment due to his voluntary actions. 2002 SD 6, ¶ 15, 639 N.W.2d 188, 192. We stated in Woehl:

Donald’s primary, paramount obligation is the support of his four children. Instead of doing everything in his power to maintain his employment, Donald’s deliberate, violent acts led to his firing. His firing was neither fortuitous nor beyond his control. Now he seeks to hoist the significant economic ramifications of that on his four children. This cannot be condoned. His actions were voluntary. There was no abuse of discretion in deviating from the child support schedule by using his former income to calculate his current child support obligation.

Id. (citations omitted).

[¶ 18.] Like in Woehl, Michael’s actions leading to his incarceration were voluntary. He voluntarily pursued the illegal activities that led to his incarceration. Thus, our precedent suggests that there was no abuse of discretion in denying Michael a deviation below the child support schedule. Although there is a presumption that the obligation imposes a financial hardship on Michael because his obligation exceeds fifty percent of his monthly net income, See SDCL 25-7-6.10(2), this presumption is rebutted by the voluntary act of Michael that reduced his income. See id.; SDCL 25-7-6.10(6).

[¶ 19.] Other state courts are divided over the effect of incarceration upon a person’s child support obligations. See In re R.H., 686 N.W.2d 107, 108 (N.D.2004) (citing Frank J. Wozniak, Loss of Income Due to Incarceration as Affecting Child Support Obligation, 27 A.L.R. 5th 540 (1995)). For instance, “[s]ome courts have determined that incarceration does not justify reduction or suspension of child support payments regardless of whether an incarcerated parent has other available assets.” Oberg v. Oberg, 869 S.W.2d 235, 236 (Mo.App.1993) (citing Cole v. Cole, 70 Ohio App.3d 188, 590 N.E.2d 862 (1990)) (per curiam) (additional citations omitted). See also, Davis v. Vance, 574 N.E.2d 330, 331 (Ind.App.1991) (child support need not terminate during incarceration); State v. Nelson, 587 So.2d 176, 178 (La.App.1991); Mooney v. Brennan, 257 Mont. 197, 848 P.2d 1020, 1023 (1993) (criminal conduct of any nature cannot excuse the obligation to pay support); Parker v. Parker, 152 Wis.2d 1, 447 N.W.2d 64, 65 (1989) (obligor need not be excused of his child support because of a willful act that resulted in his imprisonment).

[¶ 20.] On the other hand, “some courts ... have adopted the rule that, where a noncustodial parent is imprisoned for a crime other than nonsupport, the parent is not liable for child support payments while incarcerated unless it is affirmatively shown that he or she has income or assets to make such payments.” Oberg, 869 S.W.2d at 237 (citing Nab v. Nab, 114 Idaho 512, 757 P.2d 1231, 1238 (App.1988); People ex rel. Meyer v. Nein, 209 Ill.App.3d 1087, 154 Ill.Dec. 436, 568 N.E.2d 436, 437 (1991); Pierce v. Pierce, 162 Mich.App. 367, 412 N.W.2d 291, 292 (1987); Johnson v. O’Neill, 461 N.W.2d 507, 508 (Minn.App.1990)) (additional citations omitted).

[¶ 21.] This Court’s precedent suggests that a deviation or reduction of child support below the mandated minimum amount within SDCL 25-7-6.2 is not required because of incarceration. Our holdings in Kost and Woehl are aligned with those states denying a complete suspension of child support payments based on incarceration. For example, the North Dakota Supreme Court reasoned as follows:

[I]f ... an obligor chooses to buy a ‘toy,’ gamble his livelihood away, or fraudulently transfer his assets rather than meet his obligations, one would not seriously expect the courts to ignore, much less reward, such self-inflicted harm. The result is no different when an obli-gor enters prison by voluntarily violating the law. To be sure, any of these situations might make it difficult or even impossible to satisfy a child support obligation. Nonetheless, an obligor’s errors do not justify punishing the obligor’s innocent children. Our conclusion balances the interests of the child with the current, temporary inability to pay that ‘recognizes the reduced income of the obligor as a result of incarceration but does not totally relieve the obligor of child support payments as a result of that incarceration.’ Nor does the conclusion result in the obligor released from prison with an arrearage in child support so large that it is inconceivable the obligor will be able to earn enough to pay it.

A.M.S. ex rel. Farthing v. Stoppleworth, 694 N.W.2d 8, 12 (N.D.2005) (internal citations and quotations omitted).

[¶ 22.] This result appears to be an equitable one, i.e., it recognizes the reduced income of the obligor as a result of incarceration by imputing a minimum wage income instead of the obligor’s prior income, but it does not totally relieve the obligor of child support payments as a result of that incarceration. Thus, we conclude that the trial court did not abuse its discretion in denying Michael a deviation based upon his incarceration.

2. Whether Michael was denied due process or access to the courts when he was unable to obtain South Dakota law materials concerning modification of child support while incarcerated in a foreign jurisdiction.

[¶ 23.] Michael also argues that he was denied due process and meaningful access to the courts when he was unable to obtain South Dakota law while incarcerated in the Florida State Penitentiary. Michael claims he only had access to Florida and Federal case law in the law library at the Florida State Penitentiary, and he was denied access to non-Florida cases, statutes and court rules unless they were necessary to challenge judgments, sentences or prison conditions. Thus, Michael submits that the circuit court erred in dismissing his pro se petition for modification of child support due to his inability to access South Dakota law essential to his cause. He requests a remand for the circuit court to re-entertain his petition and allow him access to a South Dakota law library.

[¶ 24.] The United States Supreme Court established in Bounds v. Smith that “the fundamental constitutional right of access to the courts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 430 U.S. 817, 828, 97 S.Ct. 1491, 1498, 52 L.Ed.2d 72 (1977). However, Bounds does not guarantee inmates the wherewithal to file any and every type of legal claim, but requires only that they be provided with the tools necessary to attack their sentences, directly or collaterally, and to challenge the conditions of their confinement. Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174, 2182, 185 L.Ed.2d 606 (1996). “Impairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration.” Id. (emphasis in original). Thus, “Lewis limits the scope of the right of access to the courts to the filing of an action attacking a sentence or challenging conditions of confinement.” Cody v. Weber, 256 F.3d 764, 770 (8th Cir.2001).

[¶ 25.] Also, “the plaintiff must show the lack of a library ... hindered the plaintiffs efforts to proceed with a legal claim in a criminal appeal, postconviction matter, or civil rights action seeking to vindicate basic constitutional rights.” Sabers v. Delano, 100 F.3d 82, 84 (8th Cir.1996) (per curiam) (citing Lewis, 518 U.S. at 351, 116 S.Ct. at 2180, 135 L.Ed.2d 606). For example, a prisoner might show “that a complaint he prepared was dismissed for failure to satisfy some technical requirement which, because of deficiencies in the prison’s legal assistance facilities, he could not have known. Or that he had suffered arguably actionable harm that he wished to bring before the courts, but was so stymied by inadequacies of the law library that he was unable even to file a complaint.” Lewis, 518 U.S. at 351, 116 S.Ct. at 2180, 135 L.Ed.2d 606.

[¶ 26.] Michael’s request for a remand is flawed in two respects. First, Michael has not demonstrated that the lack of South Dakota law actually hindered his efforts in pursuing his petition for modification of child support. He timely filed his petition and the referee and court reviewed his claims. Second, Michael’s claim concerning a lack of access to the courts is limited, because he is not filing an action attacking a sentence or challenging conditions of his confinement. Instead, he is filing a general civil claim concerning child support.

[¶ 27.] In conclusion, the circuit court order dismissing Michael’s petition for modification of child support on the merits and with prejudice is reversed and remanded for the court to set a support order in congruence with the mandatory statutory schedule. However, Michael’s remaining claims concerning deviation due to incarceration and due process were properly dismissed.

[¶ 28.] Affirmed in part, reversed in part and remanded.

[¶ 29.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . Because the order for support was entered prior to July 1, 2005, a showing of a change in circumstances was not required prior to modification. SDCL 25-7-6.13.

      . Lynelte did not file an appellee's brief.

      . These figures are based on the 2007 tax table; however, the child support obligation worksheet used by the court in formulating its initial award also computed a monthly net income of less than $800.

      . The emboldened area of the schedule was enacted in order to address the high obligations imposed upon low-income obligors when both parents’ incomes are used to compute the obligation. Report of the South Dakota Comm’n on Child Support, Dec. 2000, at 10-11. It was found that including the custodial parent’s income in the calculation when there is a low-income obligor has the effect of reducing the noncustodial parent's net income below a level sufficient for self-support. Id. Thus, when there is a low-income obligor, a calculation is made under the guidelines using both parents’ net incomes. Id. Then, this amount is compared to the emboldened area within the guidelines using only the obli-gor’s net income. Id. The lesser of these two amounts establishes the child support obligation. Id. This result insures that realistic and attainable child support obligations are established for low-income obligors. Id.

      .It appears that the referee only addressed Michael’s argument that his incarceration required a deviation from his support obligation; however, "all aspects of child support [are] opened for examination” upon a petition for modification of prior trial court orders concerning the mutual child support obligations of the parties. Grunewaldt v. Bisson, 494 N.W.2d 193, 195 (S.D.1992) (citation omitted).

      . Michael's monthly net income is $0. Thus, his obligation of $100 exceeds fifty percent of his monthly net income.


author: KONENKAMP, Justice. SABERS, Justice MEIERHENRY, Justice

text:
    2007 SD 40
    Wynnette HEIN, Plaintiff and Appellant, v. ACUITY, Defendant and Appellee.
    No. 23903.
    Supreme Court of South Dakota.
    Argued On Aug. 29, 2006.
    Decided April 18, 2007.

      James D. Leach, Rapid City, South Dakota, Attorney for plaintiff and appellant.
    Susan Brunick Simons, Kristi Geisler Holm, of Davenport, Evans, Hurwitz <& Smith, LLP, Sioux Falls, South Dakota Attorneys for defendant and appellee.
   KONENKAMP, Justice.

[¶ 1.] In a workers’ compensation case, can a claimant maintain a separate action for bad faith solely on the basis of unreasonable conduct by the employer’s insurer, absent proof of any wrongful denial of benefits? After receiving benefits for a job-related injury, the claimant sought rehabilitation benefits and the insurer denied her request. The claimant petitioned pro se for benefits with the Department of Labor and the insurer counterclaimed seeking reimbursement of all benefits previously paid. When the claimant hired an attorney, the insurer withdrew its counterclaim. While her rehabilitation claim was still pending, the claimant brought a separate bad faith action against the insurer for its conduct in submitting an unfounded counterclaim. The circuit court dismissed the complaint on the ground that it failed to state a claim upon which relief can be granted. We affirm because in the context of workers’ compensation claims, where no contractual relationship exists between the workers’ compensation claimant and the insurer, a bad faith action must include a wrongful denial of benefits, not merely wrongful conduct.

Background

[¶ 2.] Wynnette Hein injured her back on October 7, 2002, while working for her employer, Stanley Johnson Construction. As a result of her injuries, she underwent back surgery. Acuity, as the employer’s workers’ compensation insurer, paid Hein medical and disability benefits. Ultimately, however, Hein was unable to return to her job as a construction worker. She then sought rehabilitation benefits for retraining, but Acuity denied her request.

[¶ 3.] In June 2004, Hein filed a pro se petition with the Department of Labor, wherein she asked for rehabilitation benefits. Acuity answered by averring that she failed to state a claim for which relief can be granted, failed to give timely notice of her injury, and all her previous benefits were mistakenly paid in good faith. Acuity counterclaimed, therefore, demanding that she reimburse “medical and indemnity benefits paid” in error. After she hired an attorney, Hein responded to the counterclaim, contending that it was an attempt “to intimidate [her] from pursuing her legitimate claim for benefits.” She further alleged that Acuity did not “in good faith believe that [she] owe[d] them anything” and that the counterclaim was “abusive and should be denied.”

[¶ 4.] Acuity amended its answer and withdrew its counterclaim. It acknowledged that “although timely written notice was not provided of the October 7, 2002 injury, Employer and Insurer admit that [her] supervisors were aware of the incident.” It still denied that Hein had shown an entitlement to rehabilitation benefits.

[¶ 5.] With her workers’ compensation claim still pending, Hein brought suit in circuit court against Acuity for bad faith. According to Hein, Acuity acted in bad faith when it did not conduct a reasonable investigation, failed to consider evidence it had in its possession, and sought reimbursement for benefits paid when it knew it had no reasonable basis to deny benefits retroactively or to claim that she owed anything. Hein’s complaint further alleged:

19. When it made the counterclaim, Acuity knew that the value of Hein’s rehabilitation benefits claim was less than $10,000, and knew that with a claim of such value, it was unlikely that Hein would be able to retain an attorney to represent her.
20. Acuity knew the counterclaim would make it even less likely that Hein would be able to obtain an attorney.
21. Acuity knew that without an attorney, Hein would be unable to prosecute her claim for rehabilitation benefits effectively, or to defend the counterclaim effectively, and would be more likely to be intimidated into giving up her claim for rehabilitation benefits.
* * *
23. Hein was able to obtain an attorney, James D. Leach, to represent her.
24. Hein’s attorney noticed the depositions of the relevant witnesses with respect to the counterclaim.
25. Prior to the depositions being taken, Acuity admitted that the counterclaim lacked any basis, and filed an Amended Answer withdrawing it.

Because of this alleged conduct, Hein asserted that Acuity breached its duty of good faith and fair dealing and caused her emotional distress for which she requested compensatory damages. She also sought punitive damages “to deter Acuity from continuing similar misconduct against other injured employees.”

[¶ 6.] Acuity answered and moved to dismiss under SDCL 15 — 6—12(b)(5) (Rule 12(b)(5)). It contended that because Hein’s claim for rehabilitation benefits was still pending with the Department, the case should be stayed until she exhausted her administrative remedies. Moreover, Acuity argued that to the extent Hein’s bad faith claim was “based upon statements made in judicial proceedings, such statements are absolutely privileged and not actionable.” Accordingly, Acuity asked that Hein’s complaint be dismissed in its entirety and with prejudice.

[¶ 7.] At the hearing on Acuity’s motion, Hein argued that she was not required to exhaust her administrative remedies because Acuity’s bad faith conduct was independent of her claim for rehabilitation benefits. She further alleged that her bad faith claim did not rest solely on Acuity’s pleadings in the underlying workers’ compensation case. These pleadings, she maintained, were merely evidence of Acuity’s bad faith. Acuity, on the other hand, argued that without the privileged pleadings Hein’s bad faith claim would fail.

[¶ 8.] In its ruling, the circuit court first concluded that Hein’s claim was premature because the underlying workers’ compensation issue was still pending with the Department. Next, the court examined “whether a cause of action for bad faith can be predicated upon responsive pleadings to a claim.” It reasoned that because an absolute pleading privilege is recognized in South Dakota for actions such as defamation, deceit associated with defamation and negligence, and intentional, negligent, and reckless infliction of emotional distress associated with defamation, the privilege should extend to the tort of bad faith. Nonetheless, the court stated that “[e]ven should the pleading privilege not be held to extend that far, these pleadings cannot rise to a level which constitutes bad faith.” Thus, the court dismissed Hein’s amended complaint with prejudice under Rule 12(b)(5), on the ground that it failed to state a claim for which relief could be granted. Hein appeals.

Analysis and Decision

[¶ 9.] Customarily, bad faith litigation can be classified as either first- or third-party bad faith. Third-party bad faith is traditionally based on principles of negligence and arises when an insurer wrongfully refuses to settle a case brought against its insured by a third-party. Kunkel v. United Security Ins. Co. of New Jersey, 84 S.D. 116, 121, 168 N.W.2d 723, 726 (1969) (negligence and bad faith “are often used interchangeably”); Crabb v. Nat’l Indem. Co., 87 S.D. 222, 229-30, 205 N.W.2d 633, 637 (1973). Third-party bad faith exists when an insurer breaches its duty to give equal consideration to the interests of its insured when making a decision to settle a case.

[¶ 10.] First-party bad faith, on the other hand, is an intentional tort and typically occurs when an insurance company consciously engages in wrongdoing during its processing or paying of policy benefits to its insured. Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032, 1036 (1973); Champion v. U.S. Fidelity & Guar. Co., 399 N.W.2d 320, 324 (S.D.1987). In these cases, the parties are adversaries, and therefore, an insurer is permitted to challenge claims that are fairly debatable. However, a frivolous or unfounded refusal to comply with a duty under an insurance contract constitutes bad faith. Champion, 399 N.W.2d at 324 (citing Travelers Ins. Co. v. Savio, 706 P.2d 1258, 1275 (Colo.1985)); see also Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 758 (S.D.1994); Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶ 6, 562 N.W.2d 117, 119-20.

[¶ 11.] Wrongful conduct toward an employee claimant by the employer’s insurer in a workers’ compensation case does not fit the traditional definition of either first- or third-party bad faith. A bad faith claim related to workers’ compensation is not based on an insurer’s refusal to settle its own insured’s suit as in third-party cases, but exists when an insurer breaches its duty to deal in good faith and fairly when processing a workers’ compensation claim. And, unlike first-party bad faith, the claimant, not the insured employer, brings the action against the insurer. Nonetheless, it is within the first-party bad faith context that multiple jurisdictions, including South Dakota, recognize a bad faith cause of action based on an insurer’s conduct in a workers’ compensation case. Champion, 399 N.W.2d at 324; see also Reed v. Hartford Accident & Indem. Co., 367 F.Supp. 134, 135 (E.D.Pa.1973); Stafford v. Westchester Fire Ins. Co. of New York, Inc., 526 P.2d 37, 43-44 (Alaska 1974), overruled on other grounds, Cooper v. Argonaut Ins. Cos., 556 P.2d 525 (Alaska 1976); Travelers Ins. Co., 706 P.2d at 1275; Gibson v. Nat’l Ben Franklin Ins. Co., 387 A.2d 220, 222-23 (Me.1978); Southern Farm Bureau Cas. Ins. Co. v. Holland, 469 So.2d 55, 58 (Miss.1984); Hayes v. Aetna Fire Underwriters, 187 Mont. 148, 609 P.2d 257, 261 (1980); Coleman v. Am. Universal Ins. Co., 86 Wis.2d 615, 273 N.W.2d 220, 223-24 (1979).

[¶ 12.] Hein structures her claim as though she were in a first-party relationship with Acuity. She argues that under South Dakota’s first-party bad faith law, a claim can proceed anytime an insurer’s conduct toward a claimant lacks a reasonable basis or is in reckless disregard of the lack of a reasonable basis. She relies on language from Julson, where we indicated that an insurer could be liable for bad faith to its insured not only when there is an absence of a reasonable basis for denying policy benefits, but also when there is an absence of a reasonable basis for a “failure to comply with a duty under the insurance contract.” See 1997 SD 43, ¶ 6, 562 N.W.2d at 119.

[¶ 13.] However, there exists a key difference between bad faith in a workers’ compensation action and bad faith in a traditional first-party insured-insurer relationship. In workers’ compensation cases, the claimant is not the insured. In true first-party claims, there exists a contractual relationship, whereby the insurer has accepted a premium from its insured to provide coverage. Under those circumstances, we recognized in Julson that bad faith can extend to situations beyond mere denial of policy benefits. 1997 SD 43, ¶ 6, 562 N.W.2d at 119; Hatch v. State Farm Fire and Cas. Co., 842 P.2d 1089, 1097-99 (Wyo.1992) (recognizing a cause of action for “procedural first-party bad faith”); see also Spindle v. Travelers Ins. Cos., 66 Cal.App.3d 951, 136 Cal.Rptr. 404, 408 (1977); Harvester Chem. Corp. v. Aetna Cas. Sur. Co., 277 N.J.Super. 421, 649 A.2d 1296, 1300-01 (App.Div.1994); O’Donnell ex rel. Mitro v. Allstate Ins. Co., 734 A.2d 901, 906 (Pa.Super.Ct.1999); Union Bankers Ins. Co. v. Shelton, 889 S.W.2d 278, 283 (Tex.1994).

[¶ 14.] Nonetheless, in a dispute between a workers’ compensation claimant and the employer’s insurer, no contractual relationship exists. While Hein is correct that in South Dakota a workers’ compensation bad faith claim derives from the first-party bad faith context, it is nevertheless a distinct cause of action. Bad faith arising out of workers’ compensation proceedings does not have the necessary attribute of a traditional first-party bad faith claim, i.e., a contractual relationship. Thus, in South Dakota, a workers’ compensation claimant can sustain an action for bad faith against an insurer only if the claimant satisfies the two prong test we adopted in Champion, 399 N.W.2d at 324. There must be (1) “an absence of a reasonable basis for denial of policy benefits” and (2) “the [insurance carrier’s] knowledge or reckless disregard of a reasonable basis for denial.... ” Id. (citing Travelers Ins. Co., 706 P.2d at 1275 (quoting Anderson v. Cont’l Ins. Co., 85 Wis.2d 675, 271 N.W.2d 368, 377 (1978))). An insurance carrier is permitted to “challenge claims which are fairly debatable,” and therefore, “will be found liable only where it has intentionally denied (or failed to process or pay) a claim without a reasonable basis.” Id. (citations omitted).

[¶ 15.] In Zuke v. Presentation Sisters, Inc., we stated that before a claimant may seek relief for a bad faith claim in circuit court, the Department of Labor must first decide whether benefits were warranted. 1999 SD 31, ¶ 22, 589 N.W.2d 925, 930 (administrative remedies must be exhausted, “[b]efore a trial court may grant relief for bad faith denial of worker’s [sic] compensation benefits” (emphasis added)). It is undisputed that Hein’s request for rehabilitation benefits was still pending before the Department when she sought relief for her bad faith claim against Acuity. Nonetheless, Hein contends that Zuke does not apply because after Acuity withdrew its untimely notice defense and counterclaim, there were “no administrative remedies for her to exhaust prior to bringing this lawsuit.” Her cause of action, she argues, is not based on a denial of policy benefits like the claim in Zuke, but on Acuity’s bad faith conduct in processing her request for rehabilitation benefits.

[¶ 16.] Insurers are entitled to challenge fairly debatable claims. Zuke, 1999 SD 31, ¶ 22, 589 N.W.2d at 930; Champion, 399 N.W.2d at 324; see also Ulrich v. St. Paid Fire & Marine Ins. Co., 718 F.Supp. 759, 763 (D.S.D.1989). Because any injury in a workers’ compensation bad faith claim stems from the insurer’s denial, not the insurer’s conduct alone, a central element of the cause of action is whether there has been a wrongful denial of benefits. Champion, 399 N.W.2d at 324; Ulrich, 718 F.Supp. at 763-64. Consequently, resolution of a claimant’s request for benefits will have a direct bearing on the viability of a bad faith claim. Zuke, 1999 SD 31, ¶ 22, 589 N.W.2d at 930. Moreover, requiring a claimant to first exhaust administrative remedies “promotes efficiency, keeps the administrative and judicial functions separate, and discourages plaintiffs from waiting until the statute of limitations has run on their administrative claims and bringing tort claims in an attempt to get a more generous award.” Id.

[¶ 17.] We conclude that the circuit court was correct when it ruled that Hein’s bad faith claim against Acuity was premature because at the time she brought her lawsuit her request for rehabilitation benefits was pending before the Department.

[¶ 18.] In oral argument, counsel for Hein informed the Court that the parties settled her claim for rehabilitation benefits. Now, Hein has no further administrative remedies to exhaust. Nonetheless, as we previously stated, workers’ compensation bad faith will not arise whenever an insurer’s conduct toward a claimant is unreasonable. Rather, to establish bad faith, the claimant must show that there has been (1) “an absence of a reasonable basis for denial of policy benefits” and (2) “the [insurance carrier’s] knowledge or reckless disregard of a reasonable basis for denial....” Champion, 399 N.W.2d at 324 (citations omitted) (emphasis added). A bad faith cause of action based on an insurer’s conduct in a workers’ compensation case is not traditional first-party bad faith. The relationship between a workers’ compensation claimant and an insurer is adversarial and not contractual. An insurer is liable to a claimant only when “it has intentionally denied (or failed to process or pay) a claim without a reasonable basis.” Id. (citations omitted).

[¶ 19.] Hein’s claim against Acuity is predicated solely on unreasonable conduct and does not arise from a bad faith denial of workers’ compensation benefits. Thus, her lawsuit does not meet the necessary elements of workers’ compensation-bad faith. See Champion, 399 N.W.2d at 324 (citations omitted).

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice and ZINTER, Justice, concur.

[¶ 22.] SABERS and MEIERHENRY, Justices, concur in result.

SABERS, Justice

(concurring in result).

[¶ 23.] While the current state of the law forces me to concur in result, I write specially to suggest a better rule for the future. The majority opinion points out there must be a denial of benefits in order for a claimant to bring a first-party bad faith action against the insurance company. Therefore, Hein cannot bring her bad faith cause of action against Acuity.

[¶ 24.] However, I think the better rule is this: Assuming there is bad faith on the part of the insurance company, the claimant should be able to bring a cause of action against the insurance company without a denial of benefits. In Travelers Ins. Co. v. Savio, the Colorado Supreme Court found a claimant could bring the bad faith cause of action against the insurance company without waiting for a denial or even if there was no denial of benefits. 706 P.2d 1258, 1270 (Colo.1985) (en banc). It noted

[T]he tort of bad faith depends on the conduct of the insurer regardless of the ultimate resolution of the underlying compensation claim. For example, Sa-vio’s request for rehabilitation was finally resolved in May of 1980. That resolution, or even a contrary resolution at that time, sheds little light on the question of whether Travelers acted in good faith throughout the preceding year on Savio’s request for rehabilitation training.

Id. We adopted the test for bad faith used in Savio in Champion v. U.S. Fid. & Guar. Co., 399 N.W.2d 320, 324 (S.D.1987). I suggest we should use this language to allow a bad faith cause of action to proceed without a denial of benefits.

[¶ 25.] The bad faith cause of action is a separate tort, not based on a contractual relationship, therefore the absence of an explicit contractual relationship should not affect when a claim can be brought. It should not be based on wrongful denial, but instead be based on any wrongful conduct in which the insurance company engages. If the tort of bad faith is premised upon the insurance company’s duty of good faith and fair dealing, then the ability to bring the tort should not be controlled by the end denial, but rather the insurance company’s entire course of conduct. Under the current state of the law, the insurance company can act as badly as it wants and, as long as it does not deny the claim, can suffer no liability for its bad behavior. Justice demands a better rule for the people of South Dakota.

MEIERHENRY, Justice

(concurring in result).

[¶ 26.] The only issue before us is whether the circuit court erred by dismissing the amended complaint for failure to state a claim on which relief may be granted. The Honorable Judge John J. Delaney dismissed the complaint because “bad faith cannot be predicated upon responsive pleadings to a claim.” Judge Delaney wrote a memorandum opinion in this case explaining his reasons for dismissal. First, he concluded that the pleadings were privileged and cannot form the basis of a bad faith claim; and second, he concluded even if the pleadings were not immune, bad faith cannot be predicated on withdrawn allegations and counterclaims. The Judge concluded as follows: “Again, Plaintiff may or may not ultimately have a cause of action and, if she does, these pleadings may be admissible as evidence of bad faith. That lies in the future.” Whether a bad faith claim can survive without the insurance company’s denial of policy benefits was not an issue below. Consequently, Judge Delaney did not address the issue.

[¶27.] Hein claimed that Judge Delaney was wrong in his application of the privilege of pleadings and his ruling that Hein had not exhausted her administrative remedies. Because these were the only issues that Judge Delaney ruled on and the only issues that could have been appealed, we should limit our holding to those issues. In fact, I would only address Judge Delaney’s main conclusion that bad faith cannot be predicated on communications made in responsive pleadings. We have clearly interpreted the privilege of SDCL 20-11-5(2) as “absolute.” Harris v. Riggenbach, 2001 SD 110, ¶ 7, 633 N.W.2d 193, 194. The responsive pleadings of which Hein complains falls squarely within the elements set forth in Janklow v. Keller, 90 S.D. 322, 331, 241 N.W.2d 364, 368 (1976).

[¶ 28.] Hein bases her bad faith claim on Acuity’s failure to conduct a reasonable investigation and failure to acknowledge facts in its possession of a timely notice. However, the only conduct of which she complains is the act of “asserting a lack of notice, and concoct[ing] a false defense based on that assertion.” This conduct, she claimed, constituted bad faith. If this conduct of asserting defenses and counterclaims is privileged, it cannot as a matter of law constitute bad faith. I would affirm on this basis.

      . Whether Hein was entitled to rehabilitation benefits was never part of this appeal.

      . The circuit court allowed Hein to file an amended complaint. Therefore, we review the amended complaint for the purpose of this appeal.

      . Our workers’ compensation laws were adopted to "provide an injured employee a remedy which is both expeditious and independent of proof of fault,” but we cannot say that because of these laws a first-party relationship is created between the claimant and insurance carrier. See Harn v. Continental Lumber Co., 506 N.W.2d 91, 95 (S.D.1993) (citations omitted). Instead, it is the employer who is the insured and has obtained the workers’ compensation insurance to be insured against claims brought by injured employees.

      . See Kirchoff v. Am. Cas. Co. of Reading, Pennsylvania, 997 F.2d 401, 405 (8th Cir.1993) (holding that a ''[d]enial of benefits may be inferred from the insurer's failure to process or pay a claim, and the requisite knowledge (or reckless disregard) on the part of the insurer may be inferred when the insurer has exhibited a 'reckless indifference to facts or to proofs submitted by the insured’ ”).

      . Hein insists that her bad faith claim is not dependent on an ultimate award of benefits. This assertion is mistaken. The unique circumstances surrounding bad faith relating to a workers' compensation claim requires that the claimant first be entitled to the benefits requested. The claimant is not in a contractual relationship with the employer’s insurer and, therefore, absent entitlement to benefits, a bad faith claim cannot be sustained.

      .By no means do we condone the conduct by counsel for Acuity. Submitting a counterclaim for all previously paid benefits, which counsel withdrew after Hein obtained legal representation, certainly gives rise to an inference that it was not interposed in good faith, and perhaps, as Hein alleges, offered only for the purpose of intimidating her.

      . I realize that in Zuke v. Presentation Sisters Inc., this Court required the underlying claim to be decided by the Department before a bad faith claim could be made. 1999 SD 31, ¶ 22, 589 N.W.2d 925, 930. However, I urge this Court to reconsider and find the better rule is to allow the bad faith claim regardless of the underlying disposition of the benefits claim.

      . The majority opinion claims that a claimant can only bring a bad faith cause of action if they meet the two prong test adopted in Champion due to the nonexistence of a contractual relationship between insurer and claimant. Supra ¶ 14. Champion's test is adopted from Savio, and that opinion did not require the denial of benefits before bringing the bad faith claim. 706 P.2d at 1270.


text:
    IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD, Complainant, v. Hugh Michael NEARY, Respondent.
    No. 06-1297.
    Supreme Court of Iowa.
    March 5, 2007.
    Rehearing Denied May 16, 2007.
    Charles L. Harrington and Wendell Harms, Des Moines, for complainant.
    H. Michael Neary, Ottumwa, pro se.
   PER CURIAM.

The Iowa Supreme Court Attorney Disciplinary Board filed a complaint against the respondent, Hugh Michael Neary, charging numerous instances of misconduct arising out of his handling of probate cases. Following a hearing, our Grievance Commission found that the respondent failed to complete probate matters in a timely fashion, accepted fees prior to obtaining court authorization, faded to cooperate with the chief judge and another attorney in resolving the problems, and failed to respond to the board’s inquiries. The commission recommended a minimum suspension of twelve months with conditions precedent to his readmission. We agree with the commission’s recommendations.

I. The Facts.

These disciplinary charges arose out of the respondent’s serious neglect of thirteen probate cases — neglect that caused the clerk of the district court to send him forty-six notices of delinquency. The commission concluded that the respondent violated DR 1 — 102(A)(5) (lawyer shall not engage in conduct that is prejudicial to the administration of justice), DR 1 — 102(A)(6) (lawyer shall not engage in any conduct adversely reflecting on fitness to practice law), DR 6 — -101(A)(3) (lawyer shall not neglect client matters), and DR 7— 101(A)(2) (lawyer to complete contract of employment). In addition, the commission found that, as to five estates, the respondent collected his fees in violation of DR 2 — 106(A) because he received them prematurely in violation of Iowa Court Rule 7.2(4).

Our disciplinary board, after receiving complaints regarding the probate matters, sent thirty notices to the respondent requesting his response. He received four notices each in six of the estates. The respondent failed to respond to any of the board’s requests.

In addition, the commission found that the respondent had ignored requests from another attorney and the chief judge of the district to act with respect to the estates and that substantial expenses, including attorney fees, had been incurred due to his failure to promptly resolve the probate matters.

II. The Disposition.

It is difficult to draw on other disciplinary cases to determine a sanction to be imposed because there are seldom identical circumstances. In this case, the respondent’s substantial neglect in thirteen probate matters was exacerbated by (1) his taking of fees prematurely in five cases, (2) his failure to cooperate with the judge and another attorney, (3) his failure to respond to thirty requests from the board, (4) the fact that others incurred additional expenses because of his neglect, and (5) the fact he had three times previously been publicly reprimanded.

In Iowa Supreme Court Attorney Disciplinary Board v. Schumacher, 723 N.W.2d 802 (Iowa 2006), three of the respondent’s cases were involved, all of which concerned neglect and procrastination. In addition, the lawyer had failed to respond to numerous inquiries by the board. We suspended her license indefinitely, with no possibility of reinstatement for six months. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Jay, 606 N.W.2d 1 (Iowa 2000), the attorney had neglected client matters in several estates, accepted fees prior to obtaining court authorization, and misrepresented the status of the estate to the court. We suspended this attorney’s license for a minimum of one year. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Hovda, 578 N.W.2d 673 (Iowa 1998), the attorney had neglected seventeen probate cases and failed to respond to notices of delinquency by the clerk’s office and offers of assistance from experienced probate lawyers. We suspended the attorney’s license for a minimum of two months and ordered that, on any reinstatement, he be required to associate in all probate cases with a recognized probate lawyer. In Iowa Supreme Court Board of Professional Ethics & Conduct v. Winkel, 542 N.W.2d 252 (Iowa 1996), the attorney neglected fifteen probate matters and failed to respond to delinquency notices by the clerk and inquiries from the board. We suspended his license for a minimum of six months and ordered that, on any application for reinstatement, the attorney show proof of a plan to handle all future probate matters expeditiously or to show that he had associated with qualified probate counsel. In Committee on Professional Ethics & Conduct v. Batschelet, 402 N.W.2d 429 (Iowa 1987), the attorney neglected twenty-one probate matters and failed to respond to the board’s notices of investigation. We suspended his license for a minimum of six months.

We believe in view of all of the circumstances of this case, including the extent of the respondent’s neglect in the probate matters, the respondent’s receipt of fees in five estates prior to court authorization, his failure to cooperate with the judge and another attorney in concluding the estate matters, the fact he had caused parties to incur expenses in dealing with his neglect, and the fact that he had previously been publicly reprimanded all support the commission’s recommendation— suspension for a minimum of one year with conditions for reinstatement.

Accordingly, we suspend this respondent’s license indefinitely with no possibility of reinstatement for a period of twelve months from the filing of this opinion. This suspension shall apply to all facets of the practice of law as provided in Iowa Court Rule 35.12(3) and requires notification of clients as outlined in Iowa Court Rule 35.21. Upon application for reinstatement, the respondent shall have the burden to establish that he has not practiced law during the period of suspension, that he meets all requirements of Iowa Court Rule 35.13, and that he has paid the costs of this proceeding. Any costs incurred in connection with the resolution of the underlying probate matters in the district court shall be paid. Several expenses were incurred in completing the probate matters that had been neglected by the respondent. Those expenses included fees and advanced costs by Randy DeGeest for his work as successor executor of one of the estates, expenses incurred by attorney John N. Wehr for his work on the same estate, and expenses incurred by attorney Greg Life for his work as guardian ad litem in a number of the cases. It is not possible under the existing record to tell whether any of these expenses have been paid, nor is it certain that this is even a complete list of the expenses incurred. Therefore, prior to any order reinstating the respondent, he shall certify to this court that he has paid all costs incident to the completion of the work, as set out above, and any other expenses that we have not specifically identified.

In addition, if he is reinstated, the respondent shall not engage in probate matters pending further order of this court unless he associates with an experienced lawyer approved by the chief judge of the Eighth Judicial District.

LICENSE SUSPENDED.

All justices concur except STREIT, J., who takes no part.


author: TERNUS, Chief Justice.

text:
    Douglas JONES, Appellant, v. STATE of Iowa, Appellee.
    No. 04-1675.
    Supreme Court of Iowa.
    May 4, 2007.

      Mark C. Smith, State Appellate Defender, and Martha J. Lucey, Assistant State Appellate Defender, for appellant.
    Douglas Jones, appellant, pro se.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, and Wayne M. Reisetter, County Attorney, for appellee.
   TERNUS, Chief Justice.

The primary issue addressed in this opinion is whether the trial court properly refused to consider the appellant’s pro se pleadings and rule upon the appellant’s pro se claims for postconviction relief. Although the appellant, Douglas Jones, was represented by counsel throughout this postconviction relief (PCR) action, he filed several pleadings in the district court asserting the attorneys appointed to represent him in his criminal case rendered ineffective assistance. The trial court refused to consider any of Jones’s pro se pleadings because Jones was represented by counsel. The court considered and rejected the ineffective-assistance-of-counsel claims made by Jones’s attorney.

On appeal, the court of appeals apparently determined Jones’s pro se claims should have been considered by the district court because the court of appeals rejected his claims on the merits, based on the record before it. In addition to ruling on the claims raised by Jones in the district court, the court of appeals also rejected an ineffective-assistance-of-counsel claim raised by Jones on appeal that was based on alleged prosecutorial misconduct in closing arguments.

Jones and his counsel sought further review, which we granted in order to consider whether the court of appeals properly rejected Jones’s pro se claims of ineffective assistance of counsel. Jones argues the court of appeals erred in addressing and deciding his pro se claims without giving him an opportunity to present evidence to prove his claims. We agree. Therefore, we reverse that part of the court of appeals decision rejecting the claims of ineffective assistance of counsel raised by Jones in the district court. We agree with the court of appeals that the claim made by Jones on appeal that his defense attorneys should have objected to the prosecutor’s closing argument is without merit. Therefore, we affirm that aspect of the court of appeals decision without further discussion. We reverse the district court judgment dismissing Jones’s application for postconviction relief, and remand the case for further proceedings on Jones’s claims.

I. Factual Background and Prior Proceedings.

In 1992, Jones was convicted of two counts of first-degree murder and one count of attempted murder. His appeal of these criminal convictions was unsuccessful.

Subsequently, an attorney was appointed to represent Jones for purposes of filing an action for postconviction relief. Counsel filed an application for postconviction relief, which was later amended, in which several claims of ineffective assistance of counsel were asserted. This attorney later withdrew, and the district court then appointed attorney Maria Ruhtenberg to represent Jones.

Over time, Jones became unhappy with Ruhtenberg’s representation of him and filed a motion to remove her as counsel. At the pretrial conference, the court discussed Jones’s motion with Jones, pointing out the disadvantages of trying to get new counsel at this stage of the proceedings. The court proposed giving Jones thirty days to work with counsel, and if he was not satisfied, he could come back to court and ask that counsel be removed. Jones thought that proposal was fair, so the court did not remove Jones’s attorney.

Prior to trial, Jones filed a pro se amendment to his petition, raising additional claims of ineffective assistance of counsel, and asked for “specific discovery.” The court took no action, stating “these matters should be presented by counsel.”

Subsequently, at a hearing attended only by the attorneys, Jones’s counsel and the State agreed to submit the case on the depositions and briefs. The matter was to be considered submitted on September 20, 2001. There is no indication in the record that Jones was notified of this hearing or its result. In fact, on August 22, 2001, Jones filed a “memorandum of constitutional issues,” raising additional claims of ineffective assistance of counsel. This pleading was followed one month later with a pro se motion requesting that Ruh-tenberg be dismissed and new counsel appointed.

On May 16, 2002, Jones wrote to the clerk of court, requesting a copy of the file and asking when the hearing on his motion to remove counsel would be held. The court then advised Ruhtenberg and Jones that all pleadings and communications to the court should come through counsel and that anything from Jones would be ignored unless it related to representation.

Notwithstanding the court’s admonition, Jones filed a pro se motion for summary judgment. He claimed that pursuant to this court’s decision in Leonard v. State, 461 N.W.2d 465 (Iowa 1990), he was entitled to file pleadings and papers in addition to those filed by his attorney. The court refused to consider Jones’s motion or the other pro se filings made by Jones.

A status conference was held in September 2004, attended only by the attorneys for the parties. The attorneys agreed the case was fully submitted and ready for ruling by the court. On September 28, 2004, the district court entered its ruling, denying the application for postconviction relief.

Appellate counsel for Jones then filed this appeal raising two issues: (1) the district court erred in failing to rule on Jones’s pro se claims, and (2) the district court erred in failing to find that Jones had ineffective assistance of counsel in his criminal case. The appeal was transferred to the court of appeals, with the result described above. We granted further review to consider the appropriate disposition of Jones’s pro se claims.

II. Discussion.

We think the proper resolution of the matter presented in the appeal before us is guided by our prior decisions in Leonard and in Gamble v. State, 723 N.W.2d 443 (Iowa 2006). Therefore, we begin our discussion with a brief review of those decisions.

In Leonard, this court held that the district court in a postconviction relief action has discretion to refuse an applicant’s request to remove his court-appointed attorney and dispense with counsel. 461 N.W.2d at 468. We observed the district court could properly determine that, notwithstanding an applicant’s wish to remove his attorney, counsel would still benefit the applicant and the court, would contribute to the fairness of the proceedings, and would aid in developing a record in the event of an appeal. Id. at 467. We pointed out that the Sixth Amendment right to counsel and the corollary constitutional right to dispense with counsel “applies only to criminal prosecutions and so has no application to postconviction relief proceedings.” Id. at 468. Yet we recognized the dilemma in which an applicant is placed when a court refuses to remove counsel the applicant wishes to dismiss. “Therefore, [w]e temper[ed] our holding with one qualification”:

A postconviction relief applicant may file applications, briefs, resistances, motions, and all other documents the applicant deems appropriate in addition to what the applicant’s counsel files. This qualification should give the applicant assurance that all matters the applicant wants raised before the district court will be considered.

Id.

In the Gamble case, James Gamble filed an application for postconviction relief claiming he received ineffective assistance from his attorney in a prior robbery prosecution. 723 N.W.2d at 443-44. At Gamble’s request, the court appointed counsel for him in the PCR action and then ordered Gamble’s PCR attorney to evaluate his client’s case and report that evaluation to the court. Id. Counsel filed his report and, at the same time, filed an amended application raising the one issue PCR counsel believed had merit. Id. Subsequently, the court ruled on the amended application, rejecting the one ineffective-assistance claim raised by Gamble’s attorney. Id. The court did not address Gamble’s pro se claims. Id. On appeal, this court held it was inappropriate for the court to require PCR counsel to assess the validity of his client’s claims. Id. at 446. More pertinent to the present appeal, we also held that the case must be remanded for a new hearing on Gamble’s pro se claims. Id. We stated the district court was required to make findings of fact and conclusions of law with respect to each issue raised by Gamble. Id. (citing Iowa Code § 822.7 (1999)).

We cull the following relevant principles from these decisions. First, a PCR applicant who is dissatisfied with his attorney’s representation is permitted to raise issues pro se and file papers and pleadings pro se. Gamble, 723 N.W.2d at 446; Leonard, 461 N.W.2d at 468. Second, the district court must give the applicant an opportunity to be heard on his pro se claims and must then rule on each issue raised. Gamble, 723 N.W.2d at 446. Clearly, an applicant’s opportunity to supplement counsel’s pleadings and raise additional claims pro se would be meaningless if the applicant did not have a corresponding opportunity to be heard on the pro se claims and obtain a ruling on them.

In the present case, the district court erred in refusing to consider the pro se pleadings filed by Jones. Although the court of appeals correctly recognized this error, that court should have remanded this case back to the district court so Jones could be given an opportunity to submit evidence in support of his claims.

III. Disposition.

We affirm that part of the court of appeals decision rejecting Jones’s claim arising from alleged prosecutorial misconduct. We reverse that part of the court of appeals decision addressing Jones’s pro se claims on the merits. We remand this case to the district court for a hearing on Jones’s pro se claims, after which the court must issue findings of fact and conclusions of law with respect to all issues raised by Jones. See generally id. (stating court need not address every allegation made by an applicant, but must respond to every issue raised).

DECISION OF COURT OF APPEALS AFFIRMED IN PART AND REVERSED IN PART; DISTRICT COURT JUDGMENT REVERSED; CASE REMANDED.

All justices concur except HECHT, J., who takes no part.


author: HECHT, Justice.

text:
    STATE of Iowa, Appellee, v. Harlan MOTT, Jr. Appellant. Harlan Mott, Jr., Plaintiff, v. Iowa District Court for Polk County, Defendant.
    No. 05-1563.
    Supreme Court of Iowa.
    May 4, 2007.

      Mark C. Smith, State Appellate Defender, and Dennis D. Hendrickson, Assistant State Appellate Defender, for appellant.
    Thomas J. Miller, Attorney General, Richard J. Bennett, Assistant Attorney General, John P. Sarcone, County Attorney, and Steve Foritano, Assistant County Attorney, for appellee.
   HECHT, Justice.

This case requires us to determine whether Harlan Mott, who was sentenced to a jail term of one year in the county jail for a misdemeanor assault conviction and later ordered to consecutively serve an additional 150 days in a county jail as punishment for contempt committed during the trial on the assault charge, should be incarcerated in the county jail or committed to the custody of the director of the Iowa Department of Corrections. Mott claims his terms of imprisonment for assault and contempt constitute a “continuous term of imprisonment” in excess of one year for which the district court must commit him to the custody of the director of the Iowa Department of Corrections. The State contends the district court correctly ordered Mott confined in county jail because contempt may only be punished by imprisonment in a county jail pursuant to Iowa Code section 665.4 (2005). For the reasons that follow, we affirm the district court’s order requiring Mott’s confinement in the county jail and annul the writ.

I. Background Facts and Proceedings.

On August 29, 2005, a jury found Harlan Mott not guilty of tampering with a witness and guilty of assault causing bodily injury. The district court sentenced Mott to one year in the Polk County jail. Mott filed a notice of appeal.

A separate contempt proceeding followed as a consequence of an outburst by Mott, who screamed and sang profanity directed at the court on the second day of the criminal trial. The district court found, in an order filed on September 28, 2005, that Mott’s outburst constituted contempt, in violation of sections 665.2(1) and 665.2(2). The court imposed a 150-day term of imprisonment in the Polk County jail, to run consecutively to the sentence imposed in the underlying criminal action.

On October 21, Mott filed a pro se petition for writ of certiorari alleging the court was statutorily required to commit him to the custody of the director of the Department of Corrections rather than order his imprisonment in the county jail. See Iowa Code § 665.11 (indicating the proper procedure for challenging an order to punish for contempt is a petition for writ of certio-rari). We issued the writ. Mott’s certio-rari action has been consolidated for our review with Mott’s direct appeal from the August 29, 2005, order relating to the underlying criminal action.

II. Scope of Review.

Our review of the sentence imposed in a criminal case is for correction of errors at law. See State v. Morris, 416 N.W.2d 688, 689 (Iowa 1987); Iowa R.App. P. 6.4. The correctness of the district court’s order directing that Mott’s punishment for contempt be served in the county jail turns on the interpretation of a statute. We review questions of statutory construction for correction of errors of law. State v. Vargason, 607 N.W.2d 691, 695 (Iowa 2000).

III. Discussion.

Our analysis of whether Mott must be committed to the custody of the director of the Department of Corrections rather than imprisoned in the county jail under the circumstances of this case begins with section 901.8 (“consecutive sentences”). The statute provides, in relevant part, a “sentencing judge may order the second or further sentence to begin at the expiration of the first or succeeding sentence,” and “if consecutive sentences are specified in the order of commitment, the several terms shall be construed as one continuous term of imprisonment.” Section 901.8 is found in Iowa Code Title XVI (“Criminal Law and Procedure”), Subtitle 3 (“Criminal Corrections”). The references to sentencing in the language of the statute, considered in conjunction with its placement within the Code, plainly indicate that section 901.8 only applies when a defendant is ordered to serve multiple terms of imprisonment as a consequence of criminal offenses.

We conclude section 901.8 is inapplicable in this case. Mott received one criminal sentence — a one-year term of imprisonment — for assault. He was subsequently “punished,” not “sentenced,” for contempt pursuant to section 665.4, which expressly prescribes “punishment for contempt.” (Emphasis added.) Contempt proceedings are quasi-criminal, not criminal, in nature. See State v. Sharkey, 574 N.W.2d 6, 7 (Iowa 1997) (citing Phillips v. Iowa Dist. Ct., 380 N.W.2d 706, 708-09 (Iowa 1986)).

Because section 901.8 is inapplicable, the sentence for criminal assault and the punishment for contempt must be considered in isolation, not as “consecutive sentences” constituting “one continuous term of imprisonment.” Mott’s assault conviction resulting in a sentence of confinement for a period of one year must, under section 903.4, be served in the county jail. Mott must serve his separate punishment for contempt in the county jail, pursuant to section 665.4. Therefore, the district court correctly ordered Mott to serve all of the jail time in the county jail.

Our decision in this case must be distinguished from our prior decisions that have applied section 901.8 in cases presenting multiple criminal convictions. In State v. Morris, we vacated two concurrent, one-year county jail sentences for OWI, third offense, and a consecutive one-year county jail sentence for driving under suspension. 416 N.W.2d at 690. We concluded the multiple sentences constituted one continuous term of imprisonment in excess of one year under section 901.8 for which the defendant must be committed to the custody of the director of the Department of Corrections pursuant to sections 903.4 and 901.7. Id. at 689-90. Similarly, in State v. Kapell, we vacated a five-day county jail sentence for driving under suspension, which was to be served consecutively to a sentence of no more than two years imprisonment for OWI, second offense, under the custody of the Department of Corrections. 510 N.W.2d 878, 880-81 (Iowa 1994). We again treated the consecutive sentences imposed following multiple criminal convictions as one continuous term of imprisonment under section 901.8 and consequently concluded section 903.4 required the defendant’s commitment to the custody of the Department of Corrections for driving while his license was suspended. Id. Morris and Kapell are clearly distinguishable from the case now before the court because they involved the imposition of consecutive criminal sentences. In contrast, Mott was sentenced in only one criminal case, and the term of 150 days in the county jail constituted “punishment” for contempt, not a “sentence” for contempt.

IV. Conclusion.

We conclude the district court did not err in ordering Mott to serve his terms of imprisonment for assault and contempt in the county jail. The writ is therefore annulled, and we affirm.

WRIT ANNULLED; AFFIRMED.