Insurance Issues Following High School Drinking Party - KOTA Territory News

Insurance Issues Following High School Drinking Party



Gary Jensen
Beardsley, Jensen and Von Wald

High school drinking parties are dangerous, often result in legal issues including questions about insurance coverage when injuries result.   

Any time a decision of a court begins by making reference to a high school drinking party, it’s quite likely that something bad has happened.   

In this particular case, the pertinent facts begin in a corn field in Union County, South Dakota.  Ludwig, who had two high school girlfriends with her, drove her car to a drinking party in the cornfield.  She needed a sober driver to drive the car back to her residence.  The girls asked Bottger if he was sober and capable of driving; he assured them he was.

Relying on his claim of sobriety, Ludwig allowed Bottger to drive her car.   Ludwig and her friends soon realized, however, that Bottger was intoxicated.  He was driving fast, erratically.  Ludwig directed Bottger to “pull the car over and stop.”  The other two girls yelled at Bottger to slow down or pull over.  Bottger ignored them; he missed a turn and crashed into a steep ditch.

Surprisingly, no one was injured as a result of the crash into the ditch.  Ludwig and one of her girl friends demanded that Bottger get out of the car, but he refused.  Bottger struggled to drive the car out of the ditch; eventually, he got the car to move forward – in doing so, however, he pinned one of the girls (Kosinski) under the car.  This lawsuit followed. 

The Court determined that there was no insurance coverage from the owner of the car – Ludwig – because she had withdrawn her consent for Bottger to drive.  Her withdrawal of consent was “clear and outspoken, and not merely implied or left to inference.” 

The other possible coverage was on Bottger’s vehicle - his mother’s policy on which he was a named insured.  The policy covered the mother’s vehicle and any other he was driving subject to the exclusion that there is no coverage for any insured …[u]sing a vehicle without a reasonable belief that the insured is entitled to so.”  Bottger’s carrier argued there was no coverage because Bottger did not, by the time he pinned Kosinski under the car, have a reasonable belief that he was entitled to drive Ludwig’s car.  

The Court reminded us that, “With an exclusion clause, the legal inquiry changes from the automobile owner’s perspective to the driver’s perspective.”  The situation focuses on “how the situation appears to the user of the automobile.”  The Court stated: 

Whether an insured has a reasonable belief that he is entitled to drive another’s vehicle is a question of fact.  When an insurance company seeks to avoid liability under a policy because of an excluded risk, it has the burden or proving the facts that constitute the exclusion. 

The trial court erred because it focused on whether Bottger had “implied or expression permission,” when the inquiry should have been “focused on whether Bottger reasonably believed he was entitled to drive the vehicle out of the ditch.”  On remand, the Court set out the trial court’s task as follows:  

The trial court must determine whether Bottger believed he was entitled to drive the vehicle at the time of the accident; and if so, whether the belief was reasonable ‘as measured by the reaction of a reasonable person of the same age, personality and social environment, subject to such accompanying influences on the person’s judgment and mind as may be credibly discerned from the evidence.’

To see more of the detail, you can read State Farm v. Bottger, AMOC Insurance Company, and Kosinski, 2011 S.D. 2.

E-mail Gary is intended as general information on legal issues affecting us all.  This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.


1.      You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future? 


2.      You learn another person is hurt using a machine that has injured others in the past and will injure others in the future? 


3.      You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?  


What should you do? 


Try to prevent the next accident, injury, and catastrophe from happening. 


How can you do that? 


Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.


Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.   


Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker. 

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