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South Dakota Subrogation Laws
Sections
State Subrogation
Made Whole Doctrine
Common Fund
Collateral Source Rules
Hospital Lien Act
Medicaid Statute
State Subrogation
YES, equitable and contractual (Schuldt v. State Farm Mut. Auto. Ins. Co., 238 N.W.2d 270 (S.D. 1975)).
Made Whole Doctrine
NO, contract language will govern. Subrogation rights exist independently from the made whole doctrine. Even general contract language will be interpreted to contract around the doctrine. Westfield Ins. Co, Inc. v. Rowe ex rel. Estate of Gallant, 631 N.W.2d 175 (S.D. 2001).
Common Fund
YES, can obtain proportionate share of attorney’s fees (See e.g. Bowen v. American Family Ins. Group, 504 N.W.2d 604 (S.D. 1993), Van Emmerik v. Montana Dakota Utilities Co., 332 N.W.2d 279 (S.D. 1983)).
Collateral Source Rules
Applies, evidence is not admissible
Hospital Lien Act
- S.D. Codified Laws §44-12-1: a hospital has a lien for the amount of the reasonable and necessary charges of the hospital for the treatment, care, and maintenance of the injured party in the hospital up to the date of payment of the damages
- S.D. Codified Laws §44-12-2: attorney liens and contracts take precedence over hospital liens
- S.D. Codified Laws §44-12-4 and 6: No lien is effective unless written notice is filed in the office of the register of deeds, and notice must be mailed to all interested parties
- No statutory or case law mentions of reductions, attorney’s fees, or balance billing
Medicaid Statute
S.D. Codified Laws §28-6-7.1: the department is subrogated to the amount of the cost of medical care paid to recipient, less all reasonable expenses, including attorney’s fees incurred by the recipient