South Dakota Personal Injury Demand Letter

PERSONAL INJURY DEMAND LETTER — SOUTH DAKOTA

FOR SETTLEMENT PURPOSES — EVIDENTIARY USE SUBJECT TO SDCL § 19-19-408

HEADER INFORMATION

SENT VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED

Date: [__/__/____]

FROM:
[________________________________]
Attorney at Law
[________________________________]
[________________________________]
[________________________________]
Telephone: [________________________________]
Facsimile: [________________________________]
Email: [________________________________]
South Dakota Bar No.: [________________________________]

TO:
[________________________________]
Claims Adjuster / Claims Department
[________________________________] Insurance Company
[________________________________]
[________________________________]
[________________________________]

RE: PERSONAL INJURY DEMAND

I. INTRODUCTION AND PURPOSE

This letter constitutes a formal demand for compensation on behalf of our client, [________________________________] ("Claimant"), for personal injuries and damages sustained as a direct and proximate result of the negligence of your insured, [________________________________] ("Tortfeasor"), on [__/__/____] in [________________________________], South Dakota.

This firm has been retained to represent Claimant in connection with all claims arising from this incident. All communications should be directed exclusively to this office.

If and to the extent this demand constitutes compromise negotiations concerning a disputed claim, SDCL § 19-19-408 limits specified uses to prove or disprove the claim's validity or amount or to impeach by a prior inconsistent statement or contradiction. The rule permits use for another purpose and does not itself make this ordinary demand confidential or privileged.

CRITICAL — SOUTH DAKOTA'S COMPARATIVE-NEGLIGENCE SYSTEM: Under SDCL § 20-9-2, a plaintiff may recover only when the plaintiff's contributory negligence is slight in comparison with the defendant's negligence; otherwise recovery is barred. The comparison is qualitative and fact-specific, not a fixed percentage test, and “gross” describes the relative comparison rather than requiring gross negligence as an independent culpability element. In this case, Claimant alleges no contributory fault.

II. FACTUAL BACKGROUND AND CIRCUMSTANCES OF THE INCIDENT

A. Pre-Incident Conditions

On [__/__/____], at approximately [____] [a.m./p.m.], Claimant was [________________________________] at or near [________________________________], [________________________________], South Dakota.

Weather conditions: [________________________________]
Road/surface conditions: [________________________________]
Lighting conditions: [________________________________]
Traffic conditions: [________________________________]

B. The Incident

[________________________________]
[________________________________]
[________________________________]
[________________________________]

(Provide a detailed narrative of the incident.)

C. Emergency Response

☐ Police called to the scene — Report No.: [________________________________]
☐ EMS responded — Report No.: [________________________________]
☐ Claimant transported by ambulance to [________________________________]
☐ Claimant sought emergency treatment at [________________________________]
☐ Fire department responded
☐ Photographs taken at the scene
☐ Witness statements obtained

D. Witness Information

E. Police Report Summary

Officer [________________________________], [________________________________] Department:

• [________________________________]
• [________________________________]

☐ Citations issued to tortfeasor: [________________________________]
☐ No citations issued to Claimant

III. LIABILITY ANALYSIS UNDER SOUTH DAKOTA LAW

A. Negligence Standard

Under South Dakota law, a plaintiff must prove:

1. Duty — The tortfeasor owed a duty of care
2. Breach — The tortfeasor's conduct breached that duty
3. Causation — The breach was the proximate cause of Claimant's injuries
4. Damages — Claimant suffered compensable damages

B. Tortfeasor's Specific Acts of Negligence

☐ Failure to maintain a proper lookout
☐ Failure to yield the right of way
☐ Following too closely
☐ Distracted driving
☐ Excessive speed for conditions
☐ Violation of SDCL § [________________________________]
☐ Failure to obey traffic control devices
☐ Improper lane change
☐ Driving under the influence
☐ Reckless driving (SDCL § 32-24-1)
☐ Other: [________________________________]

C. South Dakota's Slight/Gross Comparative Fault (SDCL § 20-9-2)

South Dakota's comparative fault system is unique in the nation:

"Contributory negligence shall 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." — SDCL § 20-9-2

Key Principles:

• The plaintiff's negligence must be "slight" in comparison with the defendant's
• The defendant's negligence must be "gross" in comparison with the plaintiff's
• South Dakota courts have found: 10% plaintiff fault = generally "slight"; 30%+ plaintiff fault = often NOT "slight" and therefore bars recovery
• This is distinct from the percentage-based bars used in other modified comparative fault states

Application: Claimant was 0% at fault for this incident. The tortfeasor's negligence was the sole proximate cause of Claimant's injuries. The slight/gross standard is not at issue because Claimant bears no contributory negligence.

D. Joint and Several Liability (SDCL § 15-8-15.1)

Under South Dakota law:

• A defendant found less than 50% at fault is liable for no more than twice their proportional share of total damages
• A defendant found 50% or more at fault may be held jointly and severally liable

E. Negligence Per Se

The tortfeasor violated the following statutes:

• SDCL § [________________________________]: [________________________________]
• SDCL § [________________________________]: [________________________________]

IV. INJURIES AND MEDICAL TREATMENT

A. Summary of Injuries

Primary Diagnoses:

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

Secondary/Associated Conditions:

• [________________________________]
• [________________________________]

B. Injury Checklist

☐ Traumatic brain injury (TBI) / Concussion
☐ Cervical spine injury (herniation / bulge / fracture)
☐ Thoracic spine injury
☐ Lumbar spine injury (herniation / bulge / fracture)
☐ Shoulder injury (rotator cuff / labral tear)
☐ Knee injury (ACL / MCL / meniscus)
☐ Hip injury / fracture
☐ Rib fractures
☐ Wrist / hand / arm fracture
☐ Ankle / foot fracture
☐ Facial lacerations / scarring
☐ Soft tissue injuries
☐ Nerve damage / radiculopathy
☐ PTSD
☐ Anxiety / depression
☐ TMJ dysfunction
☐ Other: [________________________________]

C. Chronological Treatment History

D. Diagnostic Imaging

E. Surgical Procedures

F. Prognosis and Future Treatment

Treating physician [________________________________] has opined:

• [________________________________]
• MMI status: ☐ Reached on [__/__/____] ☐ Not yet reached
• Permanent impairment rating: [____]%
• Future treatment anticipated: [________________________________]
• Estimated future medical costs: $[________________________________]

V. DAMAGES CALCULATION

A. Economic Damages (No Cap)

B. Non-Economic Damages (Subject to $500,000 Cap)

SOUTH DAKOTA NON-ECONOMIC DAMAGES CAP: Under SDCL § 21-3-11, non-economic damages (pain and suffering, emotional distress, loss of enjoyment of life) are capped at $500,000. This cap applies regardless of the severity of the injuries. Economic damages are not capped.

C. Total Damages Summary

VI. INSURANCE COVERAGE ANALYSIS

A. Tortfeasor's Liability Coverage

South Dakota Minimum Auto Insurance (SDCL § 32-35-70):
- $25,000/$50,000 bodily injury; $25,000 property damage (25/50/25)

B. UM/UIM Coverage

Under SDCL § 58-11-9, uninsured motorist coverage must be provided with limits equal to the policy's bodily injury liability limits.

VII. PREJUDGMENT INTEREST

Under SDCL § 21-1-13.1, prejudgment interest is available on special damages at the statutory rate.

The statutory interest rate in South Dakota is 10% per annum (SDCL § 54-3-16(2)) unless a contract specifies otherwise.

VIII. PUNITIVE DAMAGES

Applicability (SDCL §§ 21-3-2 and 21-1-4.1)

SDCL § 21-3-2 supplies the substantive oppression, fraud, or malice standard. SDCL § 21-1-4.1 separately requires a hearing and a clear-and-convincing reasonable-basis finding of willful, wanton, or malicious conduct before punitive discovery or submission to the factfinder.

☐ Punitive damages sought: [________________________________]
☐ Punitive damages not sought at this time

Note: South Dakota does not impose a statutory cap on punitive damages, but awards are subject to constitutional due process review.

IX. SETTLEMENT DEMAND

SETTLEMENT DEMAND: $[________________________________]

Terms:

1. Payment within thirty (30) days of receipt
2. Payment by certified funds to [________________________________], Attorney Trust Account
3. Full and final release upon payment
4. Inclusive of all claims arising from the incident
5. Excludes first-party insurance claims

X. STATUTE OF LIMITATIONS AND RESERVATION OF RIGHTS

Statute of Limitations

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 determine the accrual date. Counsel must classify the claim, determine accrual under current controlling authority, and screen any special statute or notice requirement before entering a deadline below.

Reservation of Rights

Claimant reserves all rights, including the right to file suit, amend damages, pursue punitive damages, pursue UM/UIM claims, and all other remedies under South Dakota law.

XI. MEDICAL RECORDS AND EXHIBITS INDEX

☐ Emergency department records
☐ Ambulance / EMS report
☐ Hospital records
☐ Primary care records
☐ Specialist records
☐ Physical therapy records
☐ Chiropractic records
☐ Mental health records
☐ Surgical records
☐ Imaging reports
☐ Prescription records
☐ Narrative medical report
☐ Itemized medical bills
☐ EOBs
☐ Employer wage verification
☐ Tax returns
☐ Police report
☐ Photographs (scene, vehicle, injuries)
☐ Witness statements
☐ Property damage documentation

XII. SIGNATURE

Respectfully submitted,

[________________________________]
Attorney for Claimant
South Dakota Bar No.: [________________________________]

[________________________________]
Firm Name
[________________________________]
Address
[________________________________]

Telephone: [________________________________]
Email: [________________________________]

Date: [__/__/____]

XIII. SOURCES AND REFERENCES

South Dakota Statutes

• SDCL § 20-9-2 — Comparative fault (unique slight/gross negligence standard)
• SDCL § 15-2-14(3) — Personal-injury actions: ordinarily three years after accrual, subject to a different limitation prescribed for a special case
• SDCL § 21-3-11 — Non-economic damages cap ($500,000)
• SDCL § 21-1-4.1 — Punitive damages
• SDCL § 21-1-13.1 — Prejudgment interest
• SDCL § 54-3-16 — Statutory interest rate (10%)
• SDCL § 21-5-1 et seq. — Wrongful death
• SDCL § 15-8-15.1 — Joint tortfeasor liability
• SDCL § 32-35-70 — Mandatory auto liability insurance (25/50/25)
• SDCL § 58-11-9 — UM/UIM coverage requirement

Key South Dakota Principles

• South Dakota uses the only slight/gross comparative fault system in the nation
• Non-economic damages capped at $500,000 (SDCL § 21-3-11)
• Economic damages: no cap
• Prejudgment interest at 10% per annum
• Auto insurance minimums: 25/50/25
• South Dakota is a fault-based tort state

This template does not constitute legal advice and must be reviewed by a licensed South Dakota attorney before use.