(dissenting).
The majority hangs its hat on the fact that:
The only evidence Providence presented of a legal duty on the part of Black Hills or Dakota Claims Service, consisted of an affidavit by Maguire’s claims supervisor, which stated, “good and professional claims handling procedures dictate that the location of the vehicles be established at the time of the alleged loss.”
The defect in the majority’s thinking is that, for summary judgment purposes, that affidavit is enough. It should be obvious that good claims handling procedure requires that the location of the vehicles be established at the time of the alleged loss. This is especially so in handling automobile hail damage claims. Who would arrange for or hire an adjustor or appraiser to do a “sloppy” or “partial” job. As the majority states, “[njegligence is the breach of a duty owed to another, the proximate cause of which results in an injury.”
In Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assoc. Co., 500 N.W.2d 250 (S.D.1993), we held that a cause of action exists for economic damage for professional negligence beyond the structures of privity of contract. Although the majority cites Mid-Western, it promptly by-passes same by stating “whether a duty exists depends on the foreseeability of injury.” Obviously, an insurance company will be injured if the loss is improperly adjusted or appraised. Therefore, foreseeability is a given and a legal duty exists.
In Limpert v. Bail, 447 N.W.2d 48 (S.D.1989), we held that a genuine issue of material fact existed as to whether a veterinarian breached his duty to properly test cattle, and stated:
Even if the contractual relationship was between Rotenberger [veterinarian] and Limpert [owner and seller], rather than Rotenberger and Bail [buyer], a breach by Rotenberger of the duty owed to Limpert could still render Rotenberger liable to Bail. As explained by the court in Layman, supra:
Where one undertakes by contract to perform a certain service and is chargeable with the duty of performing the work in a reasonably proper and efficient manner, and injury occurs to a blameless person, the injured person has a right of action directly against the offending contractor which is not based on any contractual obligation but rather on the failure of such contractor to exercise due care in the performance of his assumed obligation.
[Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 341 (N.D.1983) ] (quoting 57 Am.Jur.2d Negligence § 50). Such an imposition of liability is consistent with SDCL 20-9-1, which provides in part: “Every person is responsible for injury to the person, property, or rights of another caused by his ... want of ordinary care or skill[.]” Rotenberger had a duty to exercise due care in the testing of the cattle. If in turn, Rotenberger allowed Limpert to do some of the testing, it would not absolve him from his responsibility to Bail. Thus, a legal duty and génuine issues of material fact exist, (citations omitted).
Limpert, 447 N.W.2d at 51-52.
In this case, Dakota Claims and Black Hills had a duty to exercise due care in the appraising and adjusting of the hail damage to the vehicles. Want of ordinary care would obviously produce injury to Providence. Therefore, the injury was clearly foreseeable and a legal duty and genuine issues of material fact exist. We should not overlook such simple matters in our rush to judgment, especially when the constitution guarantees people their day in court.