By Robert C. Riter, Jr.

www.state.sd.us/state/legis/lrc.htm

1.  SB 187

This bill would have modified contributory negligence law in South Dakota. As it was initially written, it would have allowed the Plaintiff to recover even if he or she was 49% negligent. It was later amended so a Plaintiff could be 39% negligent and still recover.

Many groups were involved in discussion on this issue; most of them were in opposition to it, including the South Dakota Defense Lawyers. Nonetheless, it did pass through the full Senate, and the House committee approved it by one vote. It was, however, defeated on the House floor as the proponents received only 21 votes out of the 70 votes available.

We may expect to see future efforts to modify this area of the law. If we see those, we may want to consider modification of the joint tort feasors law as a part of that discussion.

2. HB 1278

The legislature did revise the definition of barratry to include the "filing of any document with malice or bad faith." This appears to be an effort to effectively modify SDCL 15-6-5, which limits filing of certain documents. It seems to prevent dissemination through attachments to Affidavits and other filings of documents which could fit within the new definition. The language is without specificity; hence, this is something all lawyers will want to consider when filing documents or incorporating documents into your filings.

3. HB 1002

This bill, approved by Governor Janklow to be effective July 1, 2001, provides that any waiver of the patient/physician privilege will be narrow in scope, tailored to the time period and subject matter of the claim. It also provides that in circumstances where a party objects to the discovery on the grounds that the privileged communication would subject him or her to embarrassment or undue burden, the court would conduct an in-camera review to determine whether the communication is discoverable.

4. SB 154

This increases from a Class II misdemeanor to a Class I misdemeanor the penalty for the practice of law without a license. This is effective July 1, 2001.

It seeks to change the date of a subsequent injury for filing claims with the subsequent injury fund.

6. HB 1185

This measure provides certain protections for those who receive structured settlements and seek to transfer rights obtained pursuant thereto. The measure is a difficult measure to explain in a short report, but is something you may want to review for your further consideration.

7. Other Measures

The legislature defeated SB 97 and HB 1121, both of which would have created an implied covenant of good faith and fair dealing in employment contracts. Also defeated was SB 181, which would have revised the underinsured motorist coverage law, so as to eliminate the prohibition against stacking.

HB 1031 requires workers compensation third party administrators to be licensed and provides standards for continued registration for such administrators. HB 1034 repeals existing opportunities to award the retention of real estate licensees' errors and omissions insurance, and HB 1040 revises provisions regarding applicability of managed care statutes and mediation requirements. These all passed and are effective July 1, 2001.

The legislature defeated two bills which would have allowed recovery of attorneys fees. HB 1202 would have allowed a Plaintiff to recover reasonable attorneys fees in actions for deceit. As initially written, it would not, however, have allowed Defendants to recover attorneys fees if sued for fraud and deceit. The bill was amended to allow attorneys fees for the prevailing side, but it was ultimately defeated. Also defeated was HB 1262, which in its amended form would have allowed minority shareholders to recover attorneys fees from the corporation in which they are involved in any litigation attempting to dissolve the corporation, whether or not the dissolution occurs. The majority of the legislators thought a piecemeal approach to the recovery of attorneys fees was misplaced.

I want to thank the members for all of their efforts relative to SB 187. It is very important for legislators to hear from both sides of an issue of this importance and your contacts assured that was accomplished.

Certainly there were other bills that may be of particular interest to you; however, we have tried to highlight some that appeared appropriate for your consideration. If you have any questions about any of these measures, or the 2001 legislative session, please feel free to contact me. Also, if any of these bills are of significant interest to you, I urge you to review them yourself so you can formulate your own opinion relative to their impact upon your practice.