(dissenting in parts 1 and 2 and concurring in parts 3 and 4).
1. Issue 1.
[¶ 25.] If this result had been reached after a properly noticed court trial, with findings of fact and conclusions of law as required, I would be inclined to concur. However, this result was reached improperly by summary judgment without findings of fact and conclusions of law. This is neither proper nor permissible in the face of genuine issues of material fact and this case must be reversed on Issue 1.
[¶ 26.] There are genuine issues of material fact in this case concerning willful misconduct and self-inflicted injury resulting from the inhalation of smoke, working in the municipal bar and inhaling cigar smoke. Even the physician’s testimony might have been different if he had known she had been smoking or that she was working in the bar.
[¶ 27.] No one is entitled to summary judgment unless they can show that there were no genuine issues of material fact. State Dept. of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citing Wilson v. Great Northern Railway Company, 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)) (explaining the principles of summary judgment). One of the most important principles underlying summary judgment is that it is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant. Id. Therefore, Issue 1 should be reversed and remanded for a trial.
2. Issue 2.
[¶ 28.] Accordingly we should remand Issue 2 as it is dependent upon the facts to be properly determined in a trial.
3. Issue 3.
[¶ 29.] I agree with the majority opinion that VFW is not entitled to a jury trial on the worker’s compensation claim.
i. Issue ⅛.
[¶ 30.] I agree with the majority opinion on Issue 4 and would remand on that basis.