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Parsing the meaning of “drowning”

Parsing the meaning of “drowning”

March 27
09:24 2017

Parsing the meaning of “drowning”

Richard and Lorayna Papousek owned and operated a crop and livestock ranch in Quinn, South Dakota. A massive storm named Winter Storm Atlas struck the area October 3-5, 2013. The storm began as rain and then turned into snow. After the storm subsided, the Papouseks discovered that 93 of their yearling heifers were dead. The Papouseks hired Jim McConaghy, DVM, to ascertain the cause of the cattle’s death. McConaghy conducted postmortem examinations on eight to 10 of the cattle and determined that the case of the cattle’s death was drowning.

At the time of the storm the Papouseks were insured under a farmowner–ranchowner policy issued by De Smet Farm Mutual Insurance Company of South Dakota. The policy, as it related to the cattle, covered 12 identified perils. One of the perils insured against was “direct physical loss to [cattle] caused by … [d]rowning.” The Papouseks filed a claim under the drowning provision, but De Smet denied the claim because none of the 93 cattle were found submerged in water.

The Papouseks filed an action for declaratory judgment, seeking a decision as to whether the policy covered the cattle losses. After deposition testimony by Richard Papousek and McConaghy, De Smet and the Papouseks filed cross-motions for summary judgment.

The court held that the plain meaning of drowning was “the deprivation of life by immersion in water or other liquid.” Because none of the cattle were found submerged in water, the court granted summary judgment in favor of De Smet. The Papouseks appealed.

On appeal, the Papouseks argued that the drowning provision was ambiguous and therefore should be construed in their favor.

Drowning was not defined in the policy. De Smet asserted that a common understanding of the term requires some form of submersion in water or other liquid. The Papouseks said that reasonable people understand that the hallmark of drowning is not the presence of water outside the body; rather it is death caused by water or fluid within the body.

During the postmortem examinations
of the cattle, McConaghy found that the cattle’s lungs were saturated with water and their airways were obstructed with foam (air trapped in water). In addition, he found clear liquid in all airways and running from the cattle’s noses. He speculated that during the storm the cattle inhaled large quantities of rain and then snow, resulting in a lack of oxygen and eventually cardiac arrest and death. In McConaghy’s opinion, his findings indicated that the cattle “absolutely died due to drowning.”
De Smet neither refuted McConaghy’s findings nor contradicted his opinion with competent evidence. Indeed, De Smet proffered no evidence to the contrary. Based on this record, the court found that the Papouseks established coverage under the drowning provision. The ruling of the lower court was reversed.

Papousek vs. De Smet Farm Mutual Insurance Company of South Dakota-Supreme Court of South Dakota-July 20, 2016- No. 27658.

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