State guide · Midwest
South Dakota subrogation law guide
An insured's own negligence does not bar recovery only if it was slight in comparison with the negligence of the adverse party, and the award is then reduced in proportion to that negligence. There is no fixed percentage line, so the comparison is a jury question on every file.
South Dakota at a glanceSD
- Property damage
- 6 years
- Bodily injury
- 3 years
- Fault rule
- Slight / gross
- Gov. notice
- 180 days
Overview
South Dakota is the only state that still compares fault under a slight/gross negligence standard. Under SDCL 20-9-2, an insured's own negligence does not bar recovery if it was slight in comparison with the negligence of the adverse party, and any award is reduced in proportion to that negligence. The statute sets no percentage line, so a recovery that would be routine in a 51% bar state can fail in South Dakota once the adverse party shows the insured driver or property owner contributed in a meaningful way. The property clock is generous: six years for injury to personal property and trespass to real property under SDCL 15-2-13, against three years for personal injury under SDCL 15-2-14. Product claims run three years from injury or discovery under SDCL 15-2-12.2, with no products repose period, which keeps older appliance and component failures in play. The made-whole doctrine is only a default rule here, and ordinary subrogation language displaces it. The hard deadline sits with public entities: written notice within 180 days under SDCL 3-21-2, and that notice does not toll the limitation period. Fault screening, not the calendar, decides most South Dakota files.
Quick reference with citations
- Property damage SOL
- 6 years
- SDCL 15-2-13 (trespass upon real property; taking, detaining or injuring personal property)
- Bodily injury SOL
- 3 years
- SDCL 15-2-14(3)
- Product liability
- 3 years from the date the injury, death or property damage occurred, became known or should have become known, regardless of theory (SDCL 15-2-12.2). The former products repose provision was repealed in 1985; improvements to real property carry a 10-year repose from substantial completion (SDCL 15-2A-3).
- Written contract
- 6 years
- Contract and indemnity recoveries
- Comparative fault rule
- Slight / gross
- SDCL 20-9-2; Wood v. City of Crooks, 1997 SD 20, 559 N.W.2d 558
- Government notice of claim
- 180 days
- Written notice of the time, place and cause of the injury must be given to the public entity within 180 days after the injury (SDCL 3-21-2), served on the officials designated for that type of entity in SDCL 3-21-3. Giving notice does not toll or extend the limitation period for filing suit.
Fault rule in practice
How South Dakota's rule changes a $50,000 recovery.
An insured's own negligence does not bar recovery only if it was slight in comparison with the negligence of the adverse party, and the award is then reduced in proportion to that negligence. There is no fixed percentage line, so the comparison is a jury question on every file.
Authority: SDCL 20-9-2; Wood v. City of Crooks, 1997 SD 20, 559 N.W.2d 558
Doctrines that move the number
South Dakota doctrine checklist.
Made-whole doctrine
South Dakota treats the made-whole doctrine as a default rule that the policy can displace. In Westfield Insurance Co. v. Rowe the Supreme Court held that general subrogation language is enough to override it, and Julson v. Federated Mutual Insurance Co. held that a property insurer that paid its limits did not act in bad faith by settling its own subrogation claim before the insured recovered uninsured losses.
Economic loss doctrine
South Dakota follows the majority rule: purely economic loss from a defective product in a commercial transaction, including damage to the product itself, is recoverable under the UCC and not in tort (City of Lennox v. Mitek Industries, Inc., 519 N.W.2d 330 (S.D. 1994); Diamond Surface, Inc. v. State Cement Plant Commission, 583 N.W.2d 155 (S.D. 1998)). Personal injury and damage to other property remain recoverable in tort.
Joint and several liability
Joint and several liability survives, but a defendant allocated less than 50% of the total fault cannot be jointly liable for more than twice its own percentage (SDCL 15-8-15.1). Contribution among tortfeasors runs under South Dakota's version of the Uniform Contribution Among Tortfeasors Act (SDCL ch. 15-8).
Anti-subrogation and waiver
The general rule bars an insurer from subrogating against its own insured or a party with insured status under the same policy. Check leases, construction contracts and builder's risk forms for waivers of subrogation before a demand goes out to a tenant or contractor.
Practice notes
Working South Dakota subrogation files.
- 1
Run the slight/gross screen before spending on a demand. On a $40,000 collision payment where the insured driver carries 5% of the fault and the jury finds that share slight, the recovery is $38,000. Move the insured's share to 30% and the same file can return nothing: in Wood v. City of Crooks the Supreme Court held a 30% share was more than slight as a matter of law. Treat meaningful insured-side fault as a liability question, not a discount.
- 2
Two clocks run on the same loss. A homeowner's fire claim against a contractor stays open for six years under SDCL 15-2-13, but bodily injury from the same fire runs three years under SDCL 15-2-14. When a county road crew, school district or municipal utility is involved, the 180-day written notice under SDCL 3-21-2 controls, and serving it does not pause either limitation period. Calendar the notice date at FNOL, not at file closing.
- 3
SDCL 15-2-12.2 gives product claims for injury, death or property damage three years from the date the damage occurred or was or should have been discovered, whatever the theory. With no products repose period, a 15-year-old furnace or dishwasher can still support a claim if the failure is recent. Preserve the failed component, the serial plate and the purchase history, and remember that damage to the product alone stays in warranty.
- 4
Read the policy before conceding a made-whole objection. Under Westfield Insurance Co. v. Rowe and Julson v. Federated Mutual, general subrogation language displaces the default rule, and a property insurer that paid its obligations may pursue and settle its own claim before the insured recovers uninsured losses. Keep the subrogation clause, the payment dates and any release terms in the file so the position holds if the insured objects later.
- 5
Ishqkala does not apply a percentage discount to South Dakota files. When the narrative shows insured-side fault signals, such as an admitted speed estimate, a missed stop sign or a disabled smoke detector, the Liability Reasoning Engine routes the file to a reviewer with a slight/gross flag instead of scoring a reduced recovery, because the comparison has no statutory threshold. Files with clean insured liability score on full recoverable dollars.
Key cases
Wood v. City of Crooks
1997 SD 20, 559 N.W.2d 558
The plaintiff's negligence is compared with the negligence of the defendants, not with an ordinarily prudent person, and a 30% share was more than slight as a matter of law. The Legislature then amended SDCL 20-9-2 so the slight determination is made without disclosing the plaintiff's percentage by special interrogatory.
Westfield Insurance Co. v. Rowe
2001 SD 87, 631 N.W.2d 175
The made-whole doctrine is a default rule, and policy subrogation language can displace it without expressly mentioning the doctrine. Property insurers with standard subrogation clauses can pursue recovery even when the insured has uninsured losses.
Julson v. Federated Mutual Insurance Co.
562 N.W.2d 117 (S.D. 1997)
A property insurer that paid its policy obligations did not act in bad faith by pursuing and settling its subrogation action against the tortfeasor before the insured was made whole, where the policy gave it subrogation rights on payment.
Inter-company arbitration
Arbitration Forums decisions rest on the law of the loss jurisdiction, so arbitrators hearing a South Dakota auto or property subrogation case should apply the slight/gross comparison rather than a straight percentage split. A shared-fault finding that would still pay in a 51% bar state can produce a zero award here if the insured's share is more than slight. Build contentions that keep the insured's conduct small and specific, attach scene photos and the officer's narrative, and file well inside the six-year property period.
How Ishqkala applies this guide
SD rules, built into every score.
- Opportunities with a South Dakota loss state are calendared against the 6 years property damage period or the 3 years bodily injury period, whichever controls the claim type.
- The insured's estimated fault share is applied under slight / gross before recoverable dollars are scored.
- Files involving a public entity get a 180-day notice deadline that outranks the general SOL in the priority queue.
- Alerts fire at 180, 90, 45 and 15 days before the controlling deadline.
Other slight / gross jurisdictions
- South Dakota is the only jurisdiction with this rule.
FAQ
South Dakota subrogation FAQ
6 years (SDCL 15-2-13 (trespass upon real property; taking, detaining or injuring personal property)). A subrogating carrier generally takes the insured's claim subject to the same limitation period, usually measured from the date of loss.
Slight / gross (SDCL 20-9-2; Wood v. City of Crooks, 1997 SD 20, 559 N.W.2d 558). An insured's own negligence does not bar recovery only if it was slight in comparison with the negligence of the adverse party, and the award is then reduced in proportion to that negligence. There is no fixed percentage line, so the comparison is a jury question on every file.
Written notice of the time, place and cause of the injury must be given to the public entity within 180 days after the injury (SDCL 3-21-2), served on the officials designated for that type of entity in SDCL 3-21-3. Giving notice does not toll or extend the limitation period for filing suit.
South Dakota treats the made-whole doctrine as a default rule that the policy can displace. In Westfield Insurance Co. v. Rowe the Supreme Court held that general subrogation language is enough to override it, and Julson v. Federated Mutual Insurance Co. held that a property insurer that paid its limits did not act in bad faith by settling its own subrogation claim before the insured recovered uninsured losses.
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