(dissenting).
[¶ 41.] The majority ignores settled law and overrules our own recent holding in Martinmaas, supra. Therefore, I dissent.
*205[¶ 42.] The majority, without specifically saying so, is ignoring case precedent in this Court. In so doing, it violates the basic and honored concept of stare decisis. “Stare decisis is a ... doctrine that, when the court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all further cases where the facts are substantially the same.” State v. Means, 268 N.W.2d 802, 811 (S.D.1978) (citing Printup v. Kenner, 43 S.D. 473, 476, 180 N.W. 512, 513 (1920)). Stare decisis provides parties with a “continuity of the law, rooted in a belief of reliance on how this Court has ruled in the past.” See Phipps Bros. Inc. v. Nelson’s Oil and Gas, Inc., 508 N.W.2d 885, 891 (S.D.1993) (Henderson, J., concurring in part; dissenting in part). We have settled case law precedent before us, recently handed down by this Court, and we should abide by it. The majority (and the special writer, who obviously disagreed with our earlier holding and is using this appeal to overturn it) is compelled by this doctrine to adhere to our decision in Martinmaas. To do otherwise puts the law of this state in flux and it places the bench, bar and public in the dubious situation of not knowing from one case to the next what our law is. Our jurisprudence is not being well served.
[¶ 43.] In Martinmaas, we upheld the jury’s verdict finding that Engelmann had committed professional negligence (medical malpractice) and awarding the Plaintiffs damages. Martinmaas, 2000 SD 85, ¶ 59, 612 N.W.2d 600. The trial was submitted to the jury based solely on negligence stemming from Engelmann’s utilization of improper medical procedures, positions, methods and his improper sexual contact. Id. ¶4. The majority in this appeal now states that Engelmann’s conduct was intentional, and thus it completely disregards the jury’s verdict and our holding in Martinmaas. Thus, in addition violating stare decisis, it also clearly ignores the doctrine of collateral estoppel.
[¶ 44.] Collateral estoppel prevents parties or their privies from re-litigating issues previously litigated and adjudicated on the merits. Shevling v. Butte County Bd. of Comm’rs, 1999 SD 88, ¶ 22, 596 N.W.2d 728, 731. The application of collateral estoppel requires the satisfaction of four factors:
(1) [t]he issue decided in the prior adjudication was identical with the one presented in the action in question;
(2) [t]here was a final judgment on the merits;
(3) [t]he party against whom the plea is asserted was a party or in privity with a party to the prior adjudication; and
(4) [t]he party against whom the plea is asserted had a full and fair opportunity to litigate the issue in the prior adjudication.
Grand State Property, Inc. v. Woods, Fuller, Shultz & Smith, 1996 SD 139, ¶ 12, 556 N.W.2d 84, 87. Collateral estoppel must be applied under appropriate circumstances to maintain “judicial orderliness, economy of judicial time, and the interest of litigants as well as the peace and order of society....” Frigaard v. Seffens, 1999 SD 123, ¶ 16, 599 N.W.2d 646, 650. Judgments on prior issues must be accorded stability. Id. “Controversies once decided on their merits should remain in repose, and inconsistent judicial decisions should not be made on the same set of facts.” Id.
[¶ 45.] Here, St. Paul brought a declaratory judgment action in an attempt to avoid indemnifying Engelmann under his medical malpractice insurance. St. Paul asserts that the conduct Plaintiffs proved in the Martinmaas trial is not covered by under either the CGL policy or the profes*206sional liability policy. It argues that En-gelmann’s conduct was not negligent but intentional. This is the exact issue that was litigated in Martinmaas. His counsel argued extensively at trial that Engel-mann’s conduct was intentional rather than negligent. The jury, deciding on the merits, obviously disagreed and found that Engelmann’s procedures and methods fell below the appropriate standard of care, constituting professional negligence. This Court affirmed. (Further, it must be remembered that Engelmann was tried and acquitted of the allegations of criminal sexual acts. Thus, it is improper to treat an acquitted person as a convict in order to justify a result-oriented decision.)
[¶ 46.] The majority also blatantly disregards this Court’s previous holding that if there are two theories for recovery and one is permissible based on the evidence and the other is not, we will give the prevailing party the benefit of the doubt and affirm based on the permissible theory. Baker v. Jewell, 77 S.D. 573, 580-81, 96 N.W.2d 299, 304 (S.D.1959); Berg v. Sukup Mfg. Co., 355 N.W.2d 833, 837 (S.D. 1984) (Henderson, J., specially concurring).
[¶47.] Here we are presented with a decision on a rule of law, not a question for the jury. Id. The jury in Martinmaas was given two theories of recovery. As the majority acknowledges, one theory was permissible — Engelmann was covered under his professional liability policy. Yet the absurd result of the majority’s decision is to send this case back to a new jury for it to determine the following: On which theory of recovery did the Martinmaas jury render its decision? Not only is this an impossible question for a new jury to answer, it is not one appropriate for them to decide.
[¶ 48.] Simply stated, St. Paul disagreed with the jury verdict in Martin-maas. It lost its appeal and is now seeking a declaratory judgment to have it reviewed again. Collateral estoppel clearly applies to prevent this type of re-ligitation. The majority should not now overturn the jury verdict we previously affirmed. The jury found that Engel-mann committed professional negligence. We affirmed and are bound by that decision. There is nothing more to litigate.
[¶ 49.] GILBERTSON, Chief Justice, joins this dissent.