Auto Accident Demand Letter - South Dakota

DEMAND FOR SETTLEMENT - MOTOR VEHICLE COLLISION

STATE OF SOUTH DAKOTA

FOR SETTLEMENT PURPOSES — SDCL § 19-19-408 MAY LIMIT SPECIFIED USES OF DISPUTED-CLAIM NEGOTIATIONS

[FIRM NAME]
[________________________________]
[________________________________]
[City], South Dakota [____]
Telephone: [________________________________]
Email: [________________________________]

DATE: [__/__/____]

VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND VIA ELECTRONIC MAIL

[________________________________]
[Adjuster Name]
[________________________________]
[Insurance Company Name]
[________________________________]
[Street Address]
[________________________________]
[City, State ZIP]

RE: SETTLEMENT DEMAND - MOTOR VEHICLE COLLISION
Our Client: [________________________________] (hereinafter "Claimant")
Date of Loss: [__/__/____]
Location of Accident: [________________________________]
Your Insured: [________________________________] (hereinafter "Tortfeasor")
Policy Number: [________________________________]
Claim Number: [________________________________]
Date of Birth: [__/__/____]
Age at Time of Accident: [____]

Dear [________________________________]:

This firm represents [________________________________] (hereinafter "Claimant") in connection with personal injuries and damages sustained in a motor vehicle collision that occurred on [__/__/____] in [________________________________] County, South Dakota. This letter constitutes a formal demand for settlement of our client's claims arising from the negligence of your insured, [________________________________].

If and to the extent this demand constitutes compromise negotiations concerning a disputed claim, SDCL § 19-19-408 may limit specified uses of the negotiations. It does not itself create confidentiality or privilege and may permit use for another purpose. We remind you that South Dakota recognizes a cause of action for an insurer's bad faith, and that an unreasonable refusal to evaluate and pay a meritorious claim may expose your company to extracontractual liability.

I. SOUTH DAKOTA LEGAL FRAMEWORK

A. Slight/Gross Comparative Negligence - SDCL § 20-9-2

South Dakota is the only state that applies the "slight/gross" comparative negligence rule. Under SDCL § 20-9-2:

"In all actions brought to recover damages for injuries to a person or to that person's property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence does not bar a recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant in comparison therewith, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence."

Under this standard, a plaintiff's contributory negligence bars recovery unless that negligence was "slight" in comparison with the defendant's negligence; where the plaintiff's negligence is slight, damages are reduced proportionally. The South Dakota Supreme Court has held that contributory negligence of approximately 30% is "more than slight" as a matter of law, barring recovery. See Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997).

Here, our client's negligence is none - or, at the very most, slight in comparison with your insured's negligence - and your insured's negligence is by far the predominant cause. Recovery is therefore not barred.

B. Statute of Limitations - SDCL § 15-2-14(3)

Except where a special statute prescribes a different limitation, SDCL § 15-2-14(3) requires a personal-injury action to be commenced within three (3) years after the cause of action accrued. The section does not itself make the collision date the accrual date. Counsel must classify each claim, determine accrual under current controlling authority, screen special statutes and notice requirements, and then enter the actual deadline: [__/__/____]. Property-damage and wrongful-death claims require their own current classification and deadline analysis.

C. Compulsory Liability Insurance - SDCL § 32-35-70

South Dakota requires motor vehicle owners to maintain liability insurance at the following statutory minimums:

D. Uninsured / Underinsured Motorist Coverage - SDCL § 58-11-9

South Dakota requires uninsured motorist (UM) coverage in minimum amounts equal to the liability minimums (SDCL § 58-11-9) and requires insurers to offer underinsured motorist (UIM) coverage (SDCL § 58-11-9.4 et seq.). We reserve all UM/UIM rights under our client's applicable policies.

E. Collateral Source Rule

South Dakota follows the collateral source rule: payments to the plaintiff from independent sources (such as health insurance) do not reduce the defendant's liability and are generally inadmissible to reduce damages.

F. Punitive Damages - SDCL § 21-3-2

Punitive damages are recoverable in South Dakota where the defendant acted with oppression, fraud, or malice (SDCL § 21-3-2), subject to the procedural showing required by SDCL § 21-1-4.1. We reserve the right to pursue punitive damages if evidence of aggravating conduct (e.g., DUI, extreme recklessness) emerges.

II. STATEMENT OF FACTS

A. Accident Description

On [__/__/____], at approximately [____] [a.m./p.m.], our client, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing South Dakota license plate number [________________________________], traveling [direction] on [________________________________] [Street/Highway/Interstate] in/near [________________________________], [________________________________] County, South Dakota.

At the time of the collision, our client was [________________________________] [describe activity].

Your insured, [________________________________], was operating a [____ Year] [________________________________] [Make/Model], bearing license plate number [________________________________]. Your insured [________________________________] [describe negligent conduct].

As a direct and proximate result of your insured's negligence, your insured's vehicle struck our client's vehicle [________________________________] [describe point of impact].

B. Weather and Road Conditions

Weather conditions were [________________________________]. Road conditions were [________________________________]. Visibility was [________________________________]. The posted speed limit was [____] miles per hour.

C. Police Report

The collision was investigated by [________________________________] [e.g., South Dakota Highway Patrol; local police department]. The investigating officer, [________________________________], prepared a report assigned Case Number [________________________________]. The report [________________________________] [summarize findings].

D. Witnesses

E. Physical Evidence

☐ Photographs of the accident scene preserved
☐ Photographs of vehicle damage preserved
☐ Photographs of client's visible injuries preserved
☐ Dashcam or surveillance video footage [is/is not] available
☐ Event Data Recorder (EDR) data [has/has not] been preserved
☐ Cell phone records of the at-fault driver [have/have not] been requested
☐ Traffic camera footage [has/has not] been requested

III. LIABILITY ANALYSIS

A. Negligence of Your Insured

Under South Dakota law, the elements of negligence are: (1) a duty of care, (2) breach of that duty, (3) proximate causation, and (4) damages. See Kuehl v. Horner (J.W.) Lumber Co., 678 N.W.2d 809 (S.D. 2004).

Your insured breached the duty of care by:

☐ Violating SDCL § [________________________________] [cite specific traffic statute]
☐ Operating a motor vehicle in a careless or reckless manner (SDCL § 32-24-1, reckless driving)
☐ Failing to maintain a proper lookout
☐ Failing to maintain a safe following distance (SDCL § 32-26-40)
☐ Failing to yield the right of way
☐ Operating a motor vehicle while distracted / texting (SDCL § 32-26-47.1)
☐ Operating a motor vehicle under the influence (SDCL § 32-23-1)
☐ Exceeding the posted speed limit (SDCL § 32-25-3)
☐ Failing to obey a traffic control device (SDCL § 32-28-3)
☐ [________________________________] [other negligent conduct]

B. Proximate Causation

Your insured's negligence was the direct and proximate cause of our client's injuries. But for the negligent conduct, this collision would not have occurred.

C. Allocation of Fault Under the Slight/Gross Standard

Your insured bears 100% of the fault for this collision. Our client bears 0% comparative fault. Even were any contributory fault attributed to our client, it would be slight in comparison with your insured's negligence under SDCL § 20-9-2, and recovery would not be barred.

IV. INJURIES AND MEDICAL TREATMENT

A. Emergency Treatment

Following the collision, our client was [________________________________] [describe transport to medical facility] on [__/__/____]. Presenting complaints included:

• [________________________________]
• [________________________________]
• [________________________________]

Emergency diagnoses:

• [________________________________]
• [________________________________]

B. Medical Treatment Chronology

C. Treating Physicians and Specialists

D. Current Medical Status and Prognosis

As of this demand, our client [________________________________] [describe current condition and prognosis]. Dr. [________________________________] has opined that [________________________________].

E. Future Medical Treatment

V. DAMAGES

A. Economic Damages

1. Past Medical Expenses

2. Future Medical Expenses

3. Lost Wages and Income

Our client was employed by [________________________________] as a [________________________________] earning $[________] [per period]. As a direct result of injuries, our client was unable to work for [________________________________].

4. Loss of Earning Capacity

[If applicable] $[________]

5. Property Damage

6. Out-of-Pocket Expenses

B. Non-Economic Damages

1. Pain and Suffering

Our client has endured significant physical pain, emotional distress, and diminished quality of life. [________________________________] [Describe nature and severity of pain, impact on daily life, sleep, anxiety, depression, loss of enjoyment.]

Pain and Suffering Valuation: Based on the severity, duration, and permanence of our client's injuries, we value pain and suffering at $[________].

2. Loss of Consortium

[If applicable] Our client's spouse, [________________________________], has suffered loss of consortium. South Dakota recognizes loss of consortium (SDCL § 25-2-20).

Loss of Consortium Damages: $[________]

C. Summary of Damages

VI. DEMAND FOR SETTLEMENT

Based upon the foregoing, we demand settlement in the total amount of:

$[________________________________]

This demand is open for thirty (30) days, expiring on [__/__/____]. If we do not receive a meaningful response or acceptable offer by that date, we will file a civil complaint in the appropriate South Dakota Circuit Court without further notice.

This demand covers all claims including:

☐ Personal injury claims
☐ Property damage claims
☐ Loss of consortium (if applicable)
☐ All past, present, and future damages

This demand does not include punitive damages, which are expressly reserved.

VII. SETTLEMENT NEGOTIATION PROVISIONS

A. Good Faith and Fair Dealing / Bad Faith Preservation

South Dakota recognizes a cause of action for an insurer's bad faith. See Champion v. U.S. Fidelity & Guaranty Co., 399 N.W.2d 320 (S.D. 1987). An insurer that unreasonably refuses to settle a meritorious claim within policy limits may face liability for the resulting excess judgment, and an insured may assign such rights. We expressly preserve all bad-faith theories and make this demand with that framework in mind.

B. Policy Limits Disclosure

We request immediate written confirmation of:

☐ The liability coverage limits
☐ Any umbrella or excess policies
☐ Whether coverage is disputed
☐ UM/UIM coverage limits on all applicable policies

C. Reservation of Rights

This demand is without prejudice to all rights, including punitive damages, bad faith claims, and all other available remedies.

VIII. LITIGATION WARNING

Should settlement fail, we will file in the appropriate South Dakota Circuit Court and pursue full compensatory damages, punitive damages where supported, pre- and post-judgment interest, court costs, and all available relief.

IX. MEDICAL RECORDS AUTHORIZATION

Enclosed is a HIPAA-compliant authorization (45 C.F.R. § 164.508).

I, [________________________________], authorize the following providers to release records related to the collision on [__/__/____] to [________________________________] [Insurance Company]:

This authorization expires on [__/__/____] or upon final resolution, whichever occurs first.

Signature: _________________________________ Date: [__/__/____]
Printed Name: [________________________________]

X. ENCLOSED DOCUMENTATION

☐ Police/Accident Report
☐ Photographs of accident scene
☐ Photographs of vehicle damage
☐ Photographs of injuries
☐ Medical records and bills (itemized)
☐ Proof of lost wages
☐ Property damage estimates/invoices
☐ HIPAA-compliant medical authorization
☐ Witness statements
☐ [________________________________]

XI. DOCUMENTATION CHECKLIST - CLAIMANT FILE

☐ Accident/police report obtained
☐ All medical records collected
☐ All medical bills itemized (billed and paid)
☐ Lost wage documentation obtained
☐ Property damage documented
☐ Witness statements preserved
☐ Injury photographs at multiple recovery stages
☐ Insurance policy information confirmed
☐ Personal-injury deadline calendared after verifying accrual and any special statute ([__/__/____])
☐ Property damage SOL deadline calendared ([__/__/____] - SIX YEARS)
☐ Treatment completed or at MMI
☐ Future medical projections obtained
☐ HIPAA authorization executed
☐ Demand sent certified mail
☐ Settlement authority confirmed with client
☐ Lien search completed
☐ UM/UIM coverage evaluated (SDCL § 58-11-9)
☐ Slight/gross fault assessment documented

XII. SOUTH DAKOTA-SPECIFIC PRACTICE NOTES

☐ Slight/Gross Comparative Negligence: SDCL § 20-9-2 - unique to South Dakota; plaintiff barred unless contributory fault is "slight" compared to defendant's; ~30% held "more than slight" as a matter of law (Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997))
☐ Personal Injury SOL: ordinarily three years after accrual under SDCL § 15-2-14(3), except where a special statute prescribes a different limitation
☐ Six-Year Property Damage SOL: SDCL § 15-2-13(4)
☐ Compulsory Insurance 25/50/25: SDCL § 32-35-70
☐ UM Required / UIM Offered: SDCL § 58-11-9 et seq.
☐ First-Party Bad Faith: Champion v. U.S. Fidelity & Guaranty Co., 399 N.W.2d 320 (S.D. 1987)
☐ Punitive Damages: Oppression, fraud, or malice (SDCL § 21-3-2); procedural threshold under SDCL § 21-1-4.1
☐ Collateral Source Rule: Independent-source payments do not reduce defendant's liability
☐ Forum: Circuit Court; venue generally where defendant resides or cause of action arose

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[________________________________]
[Attorney Name]
S.D. Bar No. [________________________________]
[________________________________]
[Street Address]
[City, South Dakota ZIP]
Telephone: [________________________________]
Email: [________________________________]

cc: [________________________________] [Client Name]
Enclosures: As noted above

SOURCES AND REFERENCES

• SDCL § 20-9-2 (Comparative Negligence - Reduction of Damages): https://sdlegislature.gov/Statutes/20-9-2
• SDCL § 15-2-14 (Statute of Limitations - Personal Injury): https://sdlegislature.gov/Statutes/15-2-14
• SDCL § 15-2-13 (Statute of Limitations - Property Damage): https://sdlegislature.gov/Statutes/15-2-13
• SDCL § 32-35-70 (Financial Responsibility / Liability Insurance): https://sdlegislature.gov/Statutes/32-35-70
• SDCL § 58-11-9 (Uninsured Motorist Coverage): https://sdlegislature.gov/Statutes/58-11-9
• Wood v. City of Crooks, 559 N.W.2d 558 (S.D. 1997) (30% fault "more than slight")
• Champion v. U.S. Fidelity & Guaranty Co., 399 N.W.2d 320 (S.D. 1987) (first-party bad faith)
• South Dakota Division of Insurance - Automobile Insurance: https://dlr.sd.gov/insurance/general_guidance/auto.aspx