South Dakota Casualty Study Guide

South Dakota is stricter than the national baseline on motor vehicle coverage and looser on workers’ compensation, and both differences are easy to state backwards. The uninsured and underinsured mandates are two separate sections and neither can be rejected — the “mandatory unless waived in writing” answer that is correct in most states is simply wrong here. Workers’ compensation, by contrast, is compelled indirectly, by the loss of a defence rather than by a penalty. Learn both mechanisms and the numbers follow.

The compulsory limits are in the wrong title

SDCL 32-35-70 — not a Title 58 section — carries South Dakota’s minimum motor vehicle liability limits, in chapter 32-35, “Financial Responsibility Of Vehicle Owners And Operators”:

• $25,000 “because of bodily injury to or death of one person in any one accident”
• $50,000 “because of bodily injury to or death of two or more persons in any one accident”
• $25,000 “because of injury to or destruction of property of others in any one accident”

25/50/25. The section also fixes who is covered: “the person named therein and any other person as insured, using any insured vehicle or vehicles with the express or implied permission of the named insured.” And a named-driver exclusion or a coverage reduction under 58-11-9.3 cannot take the policy below these figures — they are a floor, not a default.

UM and UIM are two sections, and neither is rejectable

This is the highest-value fact on the paper, and it has three parts.

They are two provisions, not one. SDCL 58-11-9 covers uninsured motorist and hit-and-run coverage. SDCL 58-11-9.4 covers underinsured motorist coverage. Different sections and different source lines — but, as below, the same exception list.

Both are prohibitory rather than permissive. 58-11-9 works by forbidding the policy: no policy “may be delivered or issued for delivery in this state … unless coverage is provided therein.” 58-11-9.4 does the same for UIM: “No motor vehicle liability policy of insurance may be issued or delivered in this state … unless underinsured motorist coverage is provided therein.”

Neither section contains a rejection or waiver mechanism. There is no written-rejection form, no opt-out signature line, and no “unless rejected” clause in either. Asked directly on both sections, the answer is the same: the coverage goes in.

The limits run to $100,000 per person and $300,000 per accident unless the insured requests more. UIM’s face amount is the policy’s own bodily injury limits, capped at the same figures. And the two exception lists are identical, not different. Both sections open with the same words — coverage is required “with respect to any motor vehicle registered or principally garaged in this state, except for snowmobiles” — and both except government-owned vehicles. A study guide that puts snowmobiles on one side and not the other has invented a distinction neither statute contains.

Stacking is prohibited three separate ways

South Dakota does not handle anti-stacking in one provision. It uses three consecutive sections, and one of them carries an exception:

• 58-11-9.7 — adding UM and UIM limits together is prohibited, with an exception
• 58-11-9.8 — adding UM limits across multiple vehicles is prohibited
• 58-11-9.9 — adding UIM limits across multiple vehicles is prohibited

Three prohibitions, one exception, and the exception is on the first of them. Around that cluster sit 58-11-9.5 (payment for the portion of a judgment not collected from an underinsured motorist), 58-11-9.6 (subrogation and assignment of judgment) and 58-11-9.1, which treats an insolvent liability insurer as making its insured an uninsured motorist.

No PIP, and a negligence rule that is South Dakota’s own

South Dakota is a tort state. There is no no-fault chapter in Title 58 and no PIP mandate anywhere in chapter 58-11’s seventy-seven sections. 32-35-70 requires liability limits only, with no first-party medical component, so medical payments coverage is an optional filed-form product.

Which makes the comparative negligence rule load-bearing, and South Dakota’s is unusual. SDCL 20-9-2: contributory negligence “does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff’s contributory negligence.”

There is no percentage in that section — no fifty-percent bar, no fifty-one-percent bar, no number of any kind. The comparison is qualitative: was the plaintiff’s negligence slight in comparison with the defendant’s? That is neither pure comparative negligence nor the modified comparative rule most states use, and it is worth quoting rather than paraphrasing.

Workers’ compensation: compelled by the loss of a defence

SDCL 62-5-1 says an employer within the compensation provisions “shall secure the payment of compensation.” But the enforcement is indirect, and the mechanism is the whole answer.

SDCL 62-5-7, catchlined “Failure to secure payment as election not to operate under title,” provides that an employer who has failed to comply “shall be deemed to have elected not to operate under the provisions of this title.” Electing out forfeits the exclusive-remedy protection at 62-3-2 and leaves the employer exposed to an ordinary common-law action. The compulsion is the loss of immunity, not a fine.

Exclusive remedy itself is worth reading whole, because South Dakota states its exception in the same sentence. 62-3-2: the rights and remedies granted “shall exclude all other rights and remedies of the employee, the employee’s personal representatives, dependents, or next of kin … against the employer or any employee, partner, officer, or director of the employer, except rights and remedies arising from intentional tort.” Two things to take: the exception is intentional tort, and the immunity reaches beyond the employer to co-employees, partners, officers and directors.

There is no South Dakota state fund. 62-5-2 lists three private routes — stock corporations writing workers’ compensation, mutual employer’s liability associations authorised in the state, and associations exchanging reciprocal or interinsurance contracts — with self-insurance as a fourth at 62-5-5, on annual proof of solvency and financial ability. Political subdivisions are exempt from the security provisions under 62-5-6. And chapter 62-5’s twenty-one sections contain no assigned-risk or residual-market provision at all, so there is no statute to cite for one.

The benefit numbers

Waiting period: seven consecutive days, under SDCL 62-4-2 — and it is fully retroactive. Once the seven days are satisfied, “benefits shall be computed from the date of the injury.” The seven days are a qualifying period, not a deductible: an employee disabled for eight days is paid for eight.

Wage replacement: 66 2/3 percent, under SDCL 62-4-3 — “sixty-six and two-thirds percent of the employee’s earnings.” The maximum is “not more than one hundred percent computed to the next higher multiple of one dollar of the average weekly wage in the state,” with the state average weekly wage recomputed annually under 62-4-3.1. The minimum is phrased oddly enough to be worth quoting rather than paraphrasing: “not less than one-half of the foregoing percentages of the average weekly wage of the state per week” — half of the percentages, not half of the wage.