DEMAND FOR SETTLEMENT - WRONGFUL DEATH
STATE OF SOUTH DAKOTA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, South Dakota ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of South Dakota
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[Claims Representative / Risk Management / Defendant]
[Insurance Company / Entity Name]
[Street Address]
[City, State ZIP]
RE: WRONGFUL DEATH CLAIM - SETTLEMENT DEMAND
Decedent: [Decedent Full Name]
Date of Death: [Date of Death]
Date of Incident: [Date of Incident, if different]
Claimant(s): [Personal Representative Name], Personal Representative
Claim Number: [If assigned]
Policy Number: [If known]
Dear [Recipient Name]:
This firm represents [Personal Representative Name], as Personal Representative of the Estate of [Decedent Name], and on behalf of all statutory beneficiaries, regarding the wrongful death of [Decedent Name], who died on [Date of Death] as a direct and proximate result of [describe cause - e.g., "a motor vehicle collision caused by your insured," "medical negligence," "a dangerous condition on your insured's property," etc.].
This letter constitutes our formal demand for settlement of all wrongful death and survival claims arising from this tragedy.
I. SOUTH DAKOTA WRONGFUL DEATH STATUTORY FRAMEWORK
A. Wrongful Death Statute
This wrongful death claim is brought pursuant to South Dakota Codified Laws Section 21-5-1, which provides:
"Whenever the death of a person is caused by the wrongful act, neglect, or default of another, and the act, neglect, or default is such as would have entitled the party injured, if death had not ensued, to maintain an action and recover damages in respect thereof, then and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured..."
B. Who May Bring the Action
Under S.D.C.L. Section 21-5-2, the wrongful death action must be brought by the Personal Representative of the decedent's estate for the benefit of statutory beneficiaries.
Statutory Beneficiaries (S.D.C.L. Section 21-5-5):
Recovery is for the benefit of:
- Surviving spouse
- Surviving children
- If no spouse or children: Other heirs according to the laws of intestate succession
Beneficiaries in This Case:
- [ ] Surviving Spouse: [Spouse Name]
- Relationship: [Husband/Wife] of Decedent
- Married: [Date of Marriage]
-
[Years of marriage]
-
[ ] Surviving Children:
- [Child 1 Name], age [Age], [minor/adult]
- [Child 2 Name], age [Age], [minor/adult]
-
[Additional children]
-
[ ] Other Statutory Heirs:
- [Name and relationship]
C. Survival Action
In addition to the wrongful death claim, this letter includes a survival action on behalf of the Estate of [Decedent Name] pursuant to S.D.C.L. Section 15-4-1, which provides that causes of action survive the death of the person entitled to bring the action.
Personal Representative:
[Name], Personal Representative of the Estate of [Decedent Name]
Appointed: [Date] by [Court Name], Case No. [Number]
D. Statute of Limitations
Under S.D.C.L. Section 21-5-3, the statute of limitations for wrongful death claims in South Dakota is three (3) years from the date of death. The decedent died on [Date of Death], and therefore the limitations period expires on [Expiration Date].
II. PRESERVATION OF EVIDENCE NOTICE
YOU ARE HEREBY DIRECTED TO PRESERVE ALL EVIDENCE relating to this claim, including but not limited to:
- [ ] All evidence relating to the incident causing death
- [ ] All documents, photographs, and recordings
- [ ] Electronic data, including EDR/black box data (vehicle cases)
- [ ] Surveillance footage
- [ ] Communications with your insured regarding the incident
- [ ] Complete claims file and investigation materials
- [ ] All applicable insurance policies
- [ ] Prior claims or incidents involving your insured
- [ ] [Add case-specific evidence items]
Spoliation of evidence may result in sanctions and adverse inferences under South Dakota law.
III. STATEMENT OF FACTS
A. The Decedent - [Decedent Name]
[Decedent Name] was a [Age]-year-old [describe decedent - occupation, family role, community involvement]:
Personal Background:
- Date of Birth: [DOB]
- Age at Death: [Age]
- Residence: [City, South Dakota]
- Occupation: [Occupation/Employer]
- Annual Income: $[Amount]
- Education: [Education level]
Family:
- Spouse: [Name], married [years]
- Children: [Names and ages]
- [Other relevant family information]
Character and Contributions:
[Describe the decedent as a person - their role in the family, community involvement, personal qualities, etc.]
B. The Incident Causing Death
On [Date], at approximately [Time], [Decedent Name] was [describe activity - e.g., "driving [direction] on [Road Name]," "a passenger in a vehicle," "a pedestrian crossing [Street Name]," etc.] in [City], [County] County, South Dakota.
At that time, [Defendant/Tortfeasor Name] [describe negligent conduct - e.g., "ran a red light," "was driving while intoxicated," "was texting while driving," etc.].
[Detailed description of the incident and how it caused fatal injuries]
[Decedent Name] was transported to [Hospital Name], where [he/she] [describe - e.g., "was pronounced dead upon arrival," "died on [Date] after [time period] of intensive care," etc.].
C. The Death
[Decedent Name] [died at the scene / was transported to [Hospital] where [he/she] died / survived for [time period] before succumbing to injuries].
If Survival Period:
From the time of injury until death, a period of [time period], [Decedent Name]:
- Was conscious and aware of [his/her] impending death
- Suffered extreme physical pain from [injuries]
- [Describe other suffering during survival period]
This conscious pain and suffering during the survival period is compensable under the survival action.
IV. LIABILITY ANALYSIS
A. Negligence / Liability of Defendant
[Defendant Name] is liable for the wrongful death of [Decedent Name] under South Dakota law.
Elements of Negligence:
Under South Dakota law, a negligence claim requires proof of: (1) a duty on the part of the defendant; (2) a failure to perform that duty; (3) that such failure was a proximate cause of injury to the plaintiff. Janis v. Nash Finch Co., 2010 S.D. 27, 780 N.W.2d 497.
- Duty: [Defendant] owed a duty of [reasonable care / safe premises / proper medical care / etc.] to [Decedent Name]
- Breach: [Defendant] breached this duty by [describe specific breaches]
- Causation: [Defendant's] breach directly and proximately caused [Decedent's] death
- Damages: [Decedent's] death has caused substantial damages to the statutory beneficiaries
B. Negligence Per Se (If Applicable)
[Defendant] violated [Statute/Regulation], which constitutes negligence per se under South Dakota law.
C. South Dakota Comparative Negligence - Slight/Gross Standard
South Dakota follows a unique comparative negligence standard. Under S.D.C.L. Section 20-9-2, a plaintiff may recover damages only if the plaintiff's contributory negligence was "slight" in comparison to the defendant's negligence, which must have been "gross." If recovery is allowed, damages are reduced by the amount of negligence attributable to the plaintiff.
[Decedent Name] bore no fault for [his/her] own death. [He/She] was [describe lawful, careful conduct]. Even under South Dakota's strict standard, [Decedent's] conduct was entirely without fault.
V. DAMAGES
A. Survival Action Damages (Estate Claim)
The survival action recovers damages suffered by [Decedent Name] between injury and death pursuant to S.D.C.L. Section 15-4-1:
1. Conscious Pain and Suffering:
[Decedent Name] survived for [time period] following the injury. During this time, [he/she] experienced:
- Extreme physical pain from [injuries]
- Terror and awareness of impending death
- [Describe specific suffering]
Claimed Amount: $[Amount]
2. Pre-Death Medical Expenses:
| Provider | Service | Amount |
|---|---|---|
| [Ambulance] | Transport | $[Amount] |
| [Hospital] | Emergency/ICU Care | $[Amount] |
| [Other] | [Service] | $[Amount] |
| TOTAL PRE-DEATH MEDICAL | $[Total] |
3. Pre-Death Lost Earnings:
Lost wages from date of injury to date of death: $[Amount]
B. Wrongful Death Damages (Beneficiary Claims)
Under S.D.C.L. Section 21-5-7, the following damages are recoverable in a South Dakota wrongful death action:
1. Pecuniary Loss / Loss of Financial Support:
| Factor | Value |
|---|---|
| Decedent's Annual Income | $[Amount] |
| Decedent's Age at Death | [Age] |
| Decedent's Work-Life Expectancy | [Years] |
| Percentage Contributed to Family | [%] |
| Personal Consumption Deduction | [%] |
| Present Value Discount Rate | [%] |
| TOTAL LOSS OF SUPPORT | $[Amount] |
2. Loss of Services and Contributions:
[Decedent Name] provided valuable household services and contributions, including:
- [Describe services - childcare, household maintenance, transportation, etc.]
- Estimated annual value: $[Amount]
- Present value of future lost services: $[Amount]
3. Loss of Comfort, Society, and Companionship:
South Dakota allows recovery for loss of comfort, society, and companionship to statutory beneficiaries. Kjerstad v. Ravellette Publ'ns, Inc., 517 N.W.2d 419 (S.D. 1994).
Surviving Spouse - [Spouse Name]:
| Category | Amount |
|---|---|
| Loss of Companionship and Society | $[Amount] |
| Loss of Consortium | $[Amount] |
| Mental Anguish and Grief | $[Amount] |
| Loss of Comfort and Support | $[Amount] |
| SPOUSE'S TOTAL NON-ECONOMIC | $[Total] |
[Describe the marital relationship - years together, activities shared, closeness of relationship, impact of death on spouse]
Surviving Child(ren) - [Child Name(s)]:
| Category | Amount |
|---|---|
| Loss of Companionship and Society | $[Amount] |
| Loss of Parental Guidance | $[Amount] |
| Mental Anguish and Grief | $[Amount] |
| Loss of Love and Affection | $[Amount] |
| CHILDREN'S TOTAL NON-ECONOMIC | $[Total] |
4. Funeral and Burial Expenses:
| Expense | Amount |
|---|---|
| Funeral Home Services | $[Amount] |
| Casket/Urn | $[Amount] |
| Cemetery/Burial Plot | $[Amount] |
| Headstone/Memorial | $[Amount] |
| Memorial Service | $[Amount] |
| TOTAL FUNERAL EXPENSES | $[Total] |
C. Punitive Damages
Under South Dakota law, punitive damages are available where the defendant's conduct was willful, wanton, or malicious. Roth v. Farner-Bocken Co., 2003 S.D. 80, 667 N.W.2d 651.
[Defendant's] conduct in this matter was [willful / wanton / malicious / in reckless disregard of the rights of others], warranting an award of punitive damages. Specifically:
[Describe egregious conduct - e.g., drunk driving, knowing violation of safety rules, etc.]
D. Summary of Damages
Survival Action (Estate Claim):
| Category | Amount |
|---|---|
| Conscious Pain and Suffering | $[Amount] |
| Pre-Death Medical Expenses | $[Amount] |
| Pre-Death Lost Earnings | $[Amount] |
| TOTAL SURVIVAL DAMAGES | $[Subtotal] |
Wrongful Death Action:
| Category | Amount |
|---|---|
| Loss of Financial Support | $[Amount] |
| Loss of Services | $[Amount] |
| Funeral and Burial Expenses | $[Amount] |
| Spouse's Non-Economic Damages | $[Amount] |
| Children's Non-Economic Damages | $[Amount] |
| TOTAL WRONGFUL DEATH DAMAGES | $[Subtotal] |
TOTAL ALL DAMAGES: $[Grand Total]
VI. SETTLEMENT DEMAND
A. Demand Amount
Based upon the clear liability of [Defendant], the catastrophic loss suffered by the surviving family members, and the substantial economic and non-economic damages, we hereby demand:
$[DEMAND AMOUNT]
[OR - Policy Limits Demand:]
TENDER OF ALL AVAILABLE POLICY LIMITS, INCLUDING:
- Primary liability policy: $[Amount]
- Umbrella/Excess policy: $[Amount]
- Any additional coverage: $[Amount]
- TOTAL LIMITS DEMANDED: $[Amount]
B. Time for Response
This demand will remain open for thirty (30) days from the date of this letter, through and including [Expiration Date].
Given that damages clearly exceed policy limits, failure to tender limits within this period may constitute bad faith, exposing your insured to personal liability for any excess judgment.
VII. EXCESS LIABILITY / BAD FAITH NOTICE
Please be advised that our client's damages substantially exceed the available policy limits of $[Amount]. Under South Dakota law:
- You have a duty to give equal consideration to your insured's interests in settlement decisions;
- Failure to accept a reasonable settlement demand within policy limits may expose your insured to personal liability for any excess judgment;
- Such failure may also expose your company to bad faith liability;
- We demand that you immediately advise your insured of the excess exposure and of this demand.
VIII. DOCUMENTATION ENCLOSED
- [ ] Death certificate
- [ ] Letters testamentary / Letters of administration
- [ ] Medical records and bills (pre-death treatment)
- [ ] Autopsy report (if applicable)
- [ ] Funeral and burial expense receipts
- [ ] Decedent's tax returns (3 years)
- [ ] Employment records and income verification
- [ ] Photographs of decedent and family
- [ ] Marriage certificate (if spouse claimant)
- [ ] Birth certificates (if child claimants)
- [ ] Police/incident report
- [ ] Witness statements
- [ ] Expert reports (economics, vocational, medical)
- [ ] [Other case-specific documentation]
IX. CONCLUSION
The death of [Decedent Name] was a preventable tragedy caused entirely by [Defendant's] negligence. [He/She] was taken from [his/her] family, leaving [describe family - spouse and children] without [his/her] love, support, guidance, and companionship.
The liability in this case is clear. The damages are substantial and well-documented. We urge you to resolve this matter fairly and promptly, avoiding the additional trauma and expense of litigation for all parties.
If this matter cannot be resolved, we are prepared to file suit immediately in the Circuit Court for [County] County, South Dakota, and prosecute this case vigorously through trial.
Please contact me at your earliest convenience to discuss resolution.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
South Dakota State Bar No. [Number]
Attorney for [Personal Representative Name], Personal Representative of the Estate of [Decedent Name]
ENCLOSURES: [List]
cc: [Personal Representative]
[Beneficiaries]
[Guardian ad Litem, if applicable]
File
SOUTH DAKOTA-SPECIFIC PRACTICE NOTES
-
[ ] Wrongful Death Statute: S.D.C.L. Section 21-5-1 et seq. - Action brought by personal representative
-
[ ] Survival Action: S.D.C.L. Section 15-4-1 - Separate cause of action for decedent's pre-death damages
-
[ ] Statute of Limitations: 3 years from date of death
-
[ ] Unique Comparative Negligence: Slight/Gross standard - S.D.C.L. Section 20-9-2 - Plaintiff's negligence must be "slight" compared to defendant's "gross" negligence
-
[ ] Beneficiaries: Spouse and children; if none, heirs by intestate succession
-
[ ] No Damage Caps: South Dakota does not cap compensatory damages in wrongful death cases
-
[ ] Punitive Damages: Available for willful, wanton, or malicious conduct
-
[ ] Medical Malpractice: Two-year SOL from date of act or reasonable discovery (S.D.C.L. Section 15-2-14.1)
-
[ ] Government Claims: South Dakota has sovereign immunity with limited waivers under S.D.C.L. Section 21-32A
This template is for informational purposes only and does not constitute legal advice. Wrongful death claims in South Dakota have specific procedural requirements, including the unique slight/gross comparative negligence standard. Always verify current law and consult with a licensed South Dakota attorney before use.