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Unified Judicial System

STATE AUTO INSURANCE COMPANIES, Plaintiff and Appellant, v. B.N.C. a/k/a B.D., Defendant, and AUDREY AULT, f/k/a AUDREY DUGGAN, Defendant and Appellee. [2005 SD 89] South Dakota Supreme Court Appeal from the Circuit Court of The Second Judicial Circuit Minnehaha County, South Dakota Hon. William J. Srstka, Jr., Judge MITCHELL PETERSON of Davenport, Evans, Hurwitz & Smith, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

MARK J. ARNDT of May & Johnson Sioux Falls, South Dakota Attorneys for defendant and appellee.

Argued on April 27, 2005 Opinion Filed 7/27/2005

#23447 ZINTER, Justice [¶1.] State Auto insured a vehicle that, while being operated by an unauthorized driver, was involved in a single car accident rendering it a total loss. After paying its insured/owner for the property loss, State Auto brought this subrogation claim against the mother of the minor who was driving the vehicle. State Auto claimed that the mother was responsible on a theory of vicarious liability and on three theories of direct negligence. The trial court rejected all claims and granted summary judgment in favor of mother. We affirm the dismissal of all claims except one asserting direct negligence. Because material issues of disputed fact exist on the claim asserting negligence in the performance of a gratuitous undertaking, we reverse and remand on that issue. Facts and Procedural History [¶2.] State Auto insured a Chevrolet Suburban owned by William Close. Close is the grandfather of the driver, B.D., and the father of B.D.

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South Dakota Law