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 Claimant alleges resulted from 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

Claimant's negligence theory alleges the following, subject to the supporting evidence:

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 uses a comparative negligence test:

"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, 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 statute compares the plaintiff's negligence with the defendant's; it does not require a separate gross-negligence showing
• The comparison is fact-specific; do not assume that a fixed percentage establishes or bars recovery
• No fixed percentage alone resolves this comparison

Application: The evidence supporting Claimant's alleged fault allocation is [________________________________]. Claimant contends [STATE SUPPORTED POSITION ON COMPARATIVE NEGLIGENCE AND CAUSATION].

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

If the court enters a judgment on a basis of joint and several liability, § 15-8-15.1 limits a party allocated less than 50% of total fault to no more than twice that party's allocated percentage. This section alone does not establish when joint and several liability applies. Identify the basis for any such judgment here: [________________________________].

E. Negligence Per Se

If supported by the evidence and an applicable liability rule, Claimant alleges violations of:

• 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

B. Non-Economic Damages

SDCL § 21-3-11 sets a $500,000 limit on total general damages only in the covered malpractice actions against its listed health-care defendants and for covered injury dates. It does not create a cap for an ordinary auto or premises injury claim. Confirm the defendant, claim, injury date, and available damages before applying any limit.

C. Total Damages Summary

VI. INSURANCE COVERAGE ANALYSIS

A. Tortfeasor's Liability Coverage

Owner's liability policy minimum limits (SDCL § 32-35-70):
- $25,000/$50,000 bodily injury; $25,000 property damage (25/50/25)

B. UM/UIM Coverage

SDCL § 58-11-9 addresses uninsured motorist coverage; § 58-11-9.4 separately addresses underinsured motorist coverage. Each generally ties the required face amount to bodily injury liability limits, but neither requires coverage above $100,000 per person and $300,000 per accident unless the insured requests more. The statutes also except the specified snowmobile policies and do not require coverage for government-owned vehicles. Check the actual policy and applicable exceptions before stating available limits.

VII. PREJUDGMENT INTEREST

SDCL § 21-1-13.1 excludes prejudgment interest on future damages, punitive damages, and listed intangible damages. It gives a contract rate, when provided, for damages arising from a contract; otherwise its contract-damages provision refers to the Category B rate in § 54-3-16. Category B is ten percent per year, but that figure is not a blanket rate for this injury claim. Identify the recoverable loss, governing rate, and start date before claiming interest.

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

Punitive amount and any applicable limit: [IDENTIFY AUTHORITY AND FACTUAL SUPPORT BEFORE INCLUDING AN AMOUNT].

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 — General-damages limit for specified health-care malpractice actions
• SDCL §§ 21-3-2 and 21-1-4.1 — Substantive punitive-damages rule and the court's discovery/trial gate
• SDCL § 21-1-13.1 — Prejudgment interest
• SDCL § 54-3-16 — Category B interest rate (10%; check applicability)
• SDCL § 21-5-1 — Wrongful-death liability where the underlying injury would have supported an action
• SDCL § 15-8-15.1 — Limit on liability of a party allocated less than 50% when a joint and several judgment is entered
• SDCL § 32-35-70 — Owner's liability policy conditions and minimum limits (25/50/25)
• SDCL §§ 58-11-9 and 58-11-9.4 — Separate UM and UIM coverage requirements and limits
• SDCL § 19-19-408 — Compromise-evidence rule
• SDCL § 32-24-1 — Reckless-driving definition, if applicable

Key South Dakota Principles

• South Dakota uses the slight-in-comparison standard of § 20-9-2
• The $500,000 general-damages limit in § 21-3-11 is confined to covered health-care malpractice claims; that section does not limit special damages.
• Prejudgment interest requires a supported loss category, rate, and start date under § 21-1-13.1.
• Auto insurance minimums: 25/50/25

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