(specially concurring).
I write specially on Issue III, abuse of process to point out that:
The trial court clearly erred in granting summary judgment to Northland Insurance because Northland is bound by the acts of its collection agents, which under these circumstances, include Northland’s attorney and may include an assistant attorney general and an official of the Department of Commerce. As for the circuit court’s “ex parte” activity in aid of Northland’s collection efforts, the best that can be said is that it was a mistake — he simply had no business taking part in such activity.
The clear purpose of SDCL 32-35-52 is to protect people on our highways — not to aid creditors in attempting to coerce judgment debtors to pay claims based on fraud.
This claim of abuse of process is similar to that in Vreugdenhil v. First Bank of S.D., 467 N.W.2d 756, 760 (S.D.1991), where Justice Wuest writing for the majority stated: “[T]he legal community has known for years that procedural due process requires a hearing before a person is deprived of any significant property interest.” By the same token, lawyers throughout the state have understood for years the intended purpose of the Financial Responsibility Act.
In effect, the circuit court permitted the defendant to prevail on the basis of an “advise of counsel” or “good faith” defense without even hearing the facts. This is 180 degrees contrary to every solid summary judgment case in this state. See Breen v. Dakota Gear & Joint Co., Inc., 433 N.W.2d 221, 223 (S.D.1988); Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D.1988); Blote v. First Fed. Sav. & Loan Ass’n, 422 N.W.2d 834, 836 (S.D.1988); Groseth Int’l, Inc. v. Tenneco, Inc. 410 N.W.2d 159, 164 (S.D.1987) (Groseth I); Wilson v. Great N. Ry. Co., 83 S.D. 207, 157 N.W.2d 19, 22 (1968).