(dissenting).
[¶ 25.] I respectfully dissent. I would join the majority of jurisdictions that hold that Stoebner’s claim of self-defense, in and of itself, did not give rise to the duty tp defend.
[¶ 26.] Initially, however, I must write to express my concern and frustration as to the procedural posture of this case. As the majority notes, this case was commenced after a jury trial and defendant’s verdict in the civil assault and battery litigation. Having succeeded in that litigation, Stoebner subsequently brought this action against Farm Bureau, her homeowner insurance carrier, claiming breach of contract, bad faith, negligent and intentional infliction of emotional distress, and breach of duty to defend.
[¶ 27.] Typically, and most appropriately, the issue regarding an insurer’s duty to defend arises in a separate declaratory judgment action, preceding a trial on the underlying damage action. All of the recent, relevant cases presented to this Court were so postured. See, e.g., State Farm Mut. Auto. Ins. Co. v. Wertz, 540 N.W.2d 636 (S.D.1995); Tri-State Co. v. Bollinger, 476 N.W.2d 697 (S.D.1991); Hawkeye-Security v. Clifford, 366 N.W.2d 489 (S.D.1985). It is unfortunate that neither party, especially Farm Bureau, sought to have this issue appropriately resolved earlier.
[¶ 28.] Additionally, I am troubled by the majority’s statement of the issue before this Court. The majority frames the issue as “whether, genuine issues of material fact exist whether Stoebner was acting for the *562purpose of preventing injury to herself or for the purpose of intending injury to Gre-gerson.” See ¶ 7. I do not believe that is the issue before us. As I understand the record, and as is stated by the majority, the trial court concluded that, because Farm Bureau had actual knowledge of Sto-ebner’s claim of self-defense, it had a duty to defend.2 Thus, it is clear to me that the court’s summary judgment decision was not based upon whether Stoebner acted in self-defense, but rather was based upon whether her claim of self-defense implicated Farm Bureau’s duty to defend the action. Therefore, I believe the only issue we must review is whether Stoebner’s self-defense claim created a duty to defend.
[¶ 29.] The majority of other jurisdictions considering the duty to defend when self-defense has been claimed have held that no duty arises under those circumstances. See, e.g., Allstate Ins. Co. v. Simms, 597 F.Supp. 64 (D.Or.1984) (coverage precluded by the intentional injury policy exclusion, even if act was in self-defense); State Farm Fire and Cas. Co. v. Caldwell, 630 So.2d 668 (Fla.App. 4 Dist.1994) (punch thrown in self-defense does not establish that it had no purpose to injure); Eubanks v. Nationwide Mut. Fire Ins. Co., 195 Ga.App. 359, 393 S.E.2d 452 (1990) (self-defense claim does not remove the act from the policy’s intentional acts exclusion); Stein v. Massachusetts Bay Ins. Co., 172 Ga.App. 811, 324 S.E.2d 510 (1984) (self-defense claim “may raise the criminal defense of justification for an intentionally caused injury, [but] it does not vitiate the actual intent to cause the injury”); Heshelman v. Nationwide Mut. Fire Ins. Co., 412 N.E.2d 301 (Ind.Ct.App.1980) (self-defense claim is a justification for actions, not an inference that an act was unintentional); Auto-Owners Ins. Co. v. Harrington, 455 Mich. 377, 565 N.W.2d 839 (1997) (excepting “injurious action taken in self-defense from the intentional-acts exclusion would impermissibly disregard the clear language of the exclusion in the contract between insurer and insured”); Erie Ins. Group v. Buckner, 127 N.C.App. 405, 489 S.E.2d 901 (N.C.App.1997) (self-defense claim “does not negate the element of intent for a particular act”); Espinet v. Horvath, 157 Vt. 257, 597 A.2d 307 (1991) (injury inflicted by act taken in self-defense may be expected and/or intended); Grange Ins. Co. v. Brosseau, 113 Wash.2d 91, 776 P.2d 123 (1989) (court refused to rewrite policy to find self-defense claim to be an exception to the intentional acts exclusion). Although the majority opinion refuses to adopt their rationale, I find it persuasive and believe a subjective inquiry into the insured’s intent or expectation must be required when the insured asserts a claim of self-defense. See Harrington, 565 N.W.2d at 842.
[¶ 30.] Here, the trial court determined that because Farm Bureau possessed actual knowledge of Stoebner’s self-defense claim, it had a duty to defend. It is not clear on what basis the judge made that determination. If it was based exclusively on the self-defense pleading, I assert the judge erred. If summary judgment was premised upon all of the evidentiary facts that were presented to the jury at the trial of the underlying tort action, again I assert the judge erred.
[¶ 31.] My reading of the holdings from the majority of jurisdictions convinces me that the judge must look to what was reasonably available to the insurer at the time the tender of defense was made — just as would be done had an appropriate declaratory judgment action been commenced. In my view, the underlying trial (and jury verdict) is immaterial at this time. It seems to me that, in order to properly apply the majority rule, the court needs to step back and make its review based upon what was known, or available, at the time the insurer declined to defend. *563Therefore, I would reverse and remand for an evidentiary hearing to permit the judge to make inquiry into the insured’s subjective intent or expectations contemplated by Harrington, and the other authority cited above.
. It should also be noted that Farm Bureau framed the issue as whether it had "a duty to defend Stoebner against claims not covered by the insurance contract merely because Sto-ebner alleged that she acted in self-defense.”