SOUTH DAKOTA PUBLIC ASSURANCE ALLIANCE as subrogee for PENNINGTON COUNTY, SOUTH DAKOTA, Plaintiff and Appellant,
KEITH R. MCGUIRE, Defendant and Appellee. TRINITY BULLINGER, Plaintiff and Appellee,
KEITH R. MCGUIRE and SOUTH DAKOTA PUBLIC ASSURANCE ALLIANCE, Defendant and Appellee, Defendant and Appellant. TRINITY BULLINGER, Plaintiff and Appellant,
KEITH R. MCGUIRE and SOUTH DAKOTA PUBLIC ASSURANCE ALLIANCE, Defendants and Appellees. BRANDAN LIPPERT, Plaintiff and Appellant,
KEITH R. MCGUIRE and SOUTH DAKOTA PUBLIC ASSURANCE ALLIANCE, Defendants and Appellees.
CONSIDERED ON BRIEFS ON AUGUST 27, 2018
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA, THE HONORABLE MATTHEW M.
CRISMAN PALMER REBECCA L. MANN of Gunderson, Palmer, Nelson
& Ashmore, LLP Rapid City, South Dakota, Attorneys for
Appellant South Dakota Public Assurance Alliance.
R. KAPPELMAN of Banks, Kappelman & Strommen, Prof. LLC
Rapid City, South Dakota, Attorneys for Appellee Keith R.
REXFORD A. HAGG of Whiting, Hagg, Hagg, Dorsey & Hagg,
LLP Rapid City, South Dakota, Attorneys for Appellants
Trinity Bullinger (#28499) and Brandan Lippert (#28500).
GILBERTSON, CHIEF JUSTICE.
The South Dakota Public Assurance Alliance (SDPAA), Trinity
Bullinger, and Brandan Lippert (Appellants) commenced
separate actions against Keith McGuire by service of a
summons without a complaint. No Appellant served a complaint
upon McGuire within 20 days as required by statute, and
McGuire moved to dismiss. Appellants then moved for an
enlargement of time to serve their complaints. The circuit
court denied Appellants' motions and dismissed their
cases. Appellants' moved for relief from the court's
order on the grounds of mistake. The court denied the motion.
Appellants appealed, and their cases were consolidated by
order of this Court. We reverse and remand.
and Procedural History
On July 2, 2014, Lippert and Bullinger were passengers in a
vehicle involved in an accident with another vehicle driven
by McGuire. McGuire failed to stop at a stop sign, the two
vehicles collided, and Lippert and Bullinger alleged
injuries. The vehicle occupied by Lippert and Bullinger was
owned by their employer, Pennington County, and insured by
SDPAA. On July 8, 2014, McGuire pleaded guilty for failure to
stop at the stop sign and paid a $120 fine.
Bullinger negotiated a $94, 000 settlement with McGuire's
insurance company, State Farm Insurance. Bullinger then
notified SDPAA that he intended to pursue Pennington
County's underinsurance coverage through SDPAA. SDPAA
paid Bullinger the $94, 000 in order to preserve its right to
pursue subrogation from McGuire. Lippert, represented by the
same attorney as Bullinger, also engaged in settlement
negotiations with State Farm.
On June 14, 2017, Bullinger and Lippert sued McGuire and
SDPAA to preserve the three-year statute of limitations on
personal injury actions under SDCL 15-2-14. The separate
actions were commenced by service of a summons without a
complaint pursuant to SDCL 15-6-4(b). On June 27, 2017, SDPAA
also commenced an action against McGuire by service of a
summons without a complaint. On June 30, 2017, all three
Appellants were served a notice of appearance from
McGuire's attorney. The body of the notice contained a
demand for a complaint. Counsel for Lippert and Bullinger and
counsel for SDPAA claimed they did not see that the notice
contained a written demand for a complaint because the demand
was not contained in the cover letter or the title of the
notice. Appellants therefore failed to forward their
complaints to McGuire within 20 days of his demand as
required by SDCL 15-6-4(b).
On August 9, 2017, McGuire moved to dismiss the actions for
insufficiency of process pursuant to SDCL 15-6-12(b)(3) and
insufficiency of service of process under SDCL 15-6-12(b)(4).
Appellants resisted McGuire's motion and moved for an
enlargement of time to serve their complaints under SDCL
15-6-6(b)(2). They claimed that their failure to file timely
complaints constituted excusable neglect under South Dakota
law. Appellants also claimed that McGuire would not be
prejudiced if the motion for enlargement of time were granted
and that dismissal of their cases would be an extreme remedy.
Bullinger and Lippert filed their complaints two days later
on August 11, 2017. SDPAA's complaint was filed on August
After a hearing on September 15, 2017, the circuit court
released a letter decision denying Appellants' motions
for enlargement of time and granting McGuire's motion to
dismiss. Appellants then moved for relief from the
court's order on the grounds of mistake pursuant to SDCL
15-6-60(b). Appellants claimed that the court failed to
consider the interests of justice or lesser sanctions before
dismissing their actions. Appellants noted that the
court's dismissal, regardless of being made with or
without prejudice, operated as a time bar to their actions
because the three-year statute of limitations had expired at
the time of dismissal. Following a hearing on November 3,
2017, the circuit court entered findings of fact and
conclusions of law denying Appellants' motions for relief
and again granting McGuire's motion to dismiss.
Appellants' cases were consolidated on appeal by order of
this Court because they all received identical notices of
appearance from McGuire, all failed to see the demand for
complaint within the notice, and all failed to serve a
complaint upon McGuire within 20 days. Appellants also filed
similar motions and had their claims dismissed by a single
order of the circuit court. Appellants ask this Court to
1. Whether the circuit court abused its discretion in denying
Appellants' motions for enlargement of time ...