Winter Storm Atlas drowned cattle, justices decide

PIERRE — A couple who lost 93 yearling heifers to drowning in Winter Storm Atlas nearly three years ago should be compensated by their insurance company, the South Dakota Supreme Court decided in an opinion released on July 21.

The state’s high court overturned an earlier decision by Circuit Judge Wally Eklund that had gone against Richard and Larayna Papousek of Quinn. They run a crop and livestock ranch and had a veterinarian examine eight to 10 of the dead cattle.

The veterinarian, Jim McConaghy of Wall, determined the cause of death was drowning.

The circuit judge had ruled in favor of De Smet Farm Mutual Insurance of South Dakota. The Papouseks’ policy specifically covered drowning. The company argued the cattle hadn’t drowned because none of the 93 heifers was found in water.

The circuit judge used a dictionary definition of drowning as “the deprivation of life by immersion in water or other liquid.”

The Supreme Court, in its decision, said drowning wasn’t defined in the insurance policy and that both sides offered “reasonable interpretations of the term.”

The justices went on to note: “Papouseks point out, however, 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.”

The justices decided they would “liberally” construe the meaning of drowning and focused on whether the Papouseks established that their cattle died from inhaling water.

The veterinarian showed the cattle’s lungs were saturated with water, their airways obstructed with foam from air trapped with water. He also found clear liquid in all airways and running from the cattle’s noses.

“Indeed, De Smet proffered no evidence to the contrary,” the justices said in the 5-0 opinion written by Justice Janine Kern.

The Supreme Court’s decision sends the case back to Eklund for a ruling to be made in the Papouseks’ favor. The Atlas storm killed thousands of livestock with heavy rain and then snow Oct. 3-5, 2013, in western South Dakota.

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