#24976-rev & rem-DG 

2009 SD 78 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

DAKOTA PLAINS AG CENTER, LLC, 

and NATIONWIDE AGRIBUSINESS, Plaintiffs and Appellees, 

 v. 

MARCIA SMITHEY, as personal 

representative of the Estate 

of Edward Smithey, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

HUTCHINSON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE GLEN W. ENG 

Judge 

* * * * 

MARK J. ARNDT of 

May & Johnson, P.C. 

Sioux Falls, South Dakota Attorneys for plaintiffs 

and appellees. 

KENNETH D. BERTSCH of 

Bertsch Law Office, P.C. 

Menno, South Dakota Attorneys for defendant 

and appellant. 

* * * * 

ARGUED MARCH 24, 2009 

 OPINION FILED 08/26/09
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#24976 

GILBERTSON, Chief Justice 

[¶1.] Nationwide Agribusiness (Nationwide) petitioned for Declaratory 

Judgment in which it sought to have the First Judicial Circuit Court determine its 

rights under a workers’ compensation lien to proceeds from a wrongful death 

settlement approved by an order of the Federal District Court for the District of 

South Dakota. The federal district court’s order allocated damages between 

pecuniary loss damages and economic loss damages, and approved attorney fees at 

thirty percent of the total recovery. Nationwide subsequently petitioned for 

Declaratory Judgment in state circuit court to determine its statutory lien and 

moved for summary judgment on its petition. The circuit court granted 

Nationwide’s motion and made all damages recovered in the federal wrongful death 

action available to satisfy Nationwide’s lien without a determination of “like 

damages.” The circuit court also set the attorney fees at twenty-five percent rather 

than the thirty percent as approved by the federal district court. Marcia Smithey 

(Marcia) appeals. 

FACTS 

[¶2.] On November 18, 2003, Edward Smithey (Edward) was killed in the 

course of his employment with Dakota Plains Ag Center, L.L.C. Edward was 

visiting a construction site maintained by Stueve Construction Co., and at which 

Little Walls, L.L.C., was a subcontractor when he fell into a thirteen-foot open pit 

and died of his injuries. Edward, age thirty-eight at the time of his death, left 

behind a wife, Marcia, and two sons ages ten and six. Nationwide, the workers’ 

compensation carrier for Edward’s employer, paid benefits to Edward’s estate as 
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follows: medical expenses of $15,377.19; funeral expenses of $5,600.81; death 

benefits of $5,180.00; and the purchase price of a replacement annuity for future 

death benefits of $460,715.00. Benefits paid by Nationwide totaled $486,873.00. 

[¶3.] On May 10, 2004, Marcia, in her capacity as personal representative of 

Edward’s estate, brought a tort claim in Federal District Court for the District of 

South Dakota against Stueve Construction and Little Walls. Marcia alleged the 

defendants were negligent in “failing to properly barricade, failing to provide 

adequate lighting to prevent Smithey from falling in the hole on the construction 

site, and failing to properly inspect the . . . [p]roject site for safety.” Smithey v. 

Stueve Const Co., 2007 WL 172511, *2 (DSD 2007). The parties attempted to 

mediate the matter prior to trial. 

[¶4.] Nationwide refused to participate in the mediation attempts despite 

being requested to attend by Marcia’s counsel and by letters from the mediator, 

Michael Luce, dated April 23, 2007, and May 10, 2007. Marcia’s counsel also 

requested Nationwide’s attendance by telephone on April 27, 2007. Nationwide and 

Marcia were unable to reach a settlement regarding Nationwide’s lien, which 

Nationwide refused to settle at less that the full $486,873.00 it paid in workers’ 

compensation benefits. 

[¶5.] Shortly before the trial date and after two days of mediation, Marcia 

and the defendants reached a settlement agreement in the federal district court 

wrongful death action. On July 5, 2007, Marcia petitioned the federal district court 

for approval of the settlement negotiated by the parties per the provisions of SDCL 

21-5-6, as a portion of the settlement proceeds were allocated to Marcia and 
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Edward’s two minor children.1 The parties agreed to settle all claims in exchange 

for $1,090,000.00. Marcia’s petition allocated $872,000.00, or eighty-percent, for 

pecuniary loss damages (“the loss of [Edward’s] society, companionship, protection, 

guidance, advice and assistance”) and the balance of $218,000.00, or twentypercent, as economic loss damages. Out of the non-economic loss damages of 

$872,000.00, each of the two minor children received an allocation of $75,000.00, 

and Marcia received an allocation of $541,404.90. Marcia also requested approval 

of attorney fees of $352,703.58 or thirty percent of the proceeds, costs of $31,783.44, 

and sales tax in the amount of $14,108.14. 

[¶6.] On July 26, 2007, Nationwide moved to intervene in the federal district 

court action. The federal district court found Nationwide’s motion to intervene was 

untimely per Federal Rule of Civil Procedure Rule 24(a)(2).2 The court noted in its 

 (continued . . .) 

1. SDCL 21-5-6 provides in relevant part: 

Such personal representative may at any time before or after the 

commencement of a suit for wrongful death settle with the 

defendant the amount to be paid to him as damages for the 

wrongful death of the decedent. If such personal representative 

was appointed in this state and settlement is made before the 

commencement of a suit such settlement must have the 

approval of the court of the representative’s appointment. If 

settlement is made at any time after the commencement of suit, 

whether before or after judgment therein, such settlement must 

have the consent and approval of the court wherein the action is 

pending; provided, however, that if the personal representative 

was appointed in this state he may make such settlement upon 

the consent and approval of either the court wherein the action 

is pending or the court of his appointment. 

2. Federal Rule of Civil Procedure Rule 24(a)(2) provides: 
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findings of fact accompanying its order on Nationwide’s motion that “Nationwide 

was aware of the progress of the litigation at issue and deliberately chose not to 

become involved until after the parties had reached a settlement agreement.” The 

court also found Nationwide failed to provide an explanation for why it had declined 

to participate in the litigation or mediation during the three years the case was 

pending. The court further found that permitting Nationwide to intervene at that 

juncture would result in substantial prejudice to all parties. Finally, the court 

found that Nationwide’s untimely intervention threatened the resolution reached by 

the parties, and would prejudice the beneficiaries of the wrongful death claim by 

further delaying the receipt of proceeds. The court denied Nationwide’s motion to 

intervene. 

[¶7.] The federal district court approved the settlement as presented by the 

parties. Based on the order as entered by the federal district court, Marcia 

calculated Nationwide’s recovery under its statutory lien as follows: 

Nationwide’s prorata recovery ($218,000.00/$1,090,000.00) = 20% 

Economic loss damages $218,000.00 

Attorney fees ($352,703.58 x 20%) ( 70,540.72) 

Costs ($31,783.44 x 20%)) ( 6,356.69) 

Sales Tax ($14,108.14 x 20%) ( 2,821.63)

________________________ 

(. . . continued) 

On timely motion, the court must permit anyone to intervene 

who: 

. . . 

(2) claims an interest relating to the property or transaction 

that is the subject of the action, and is so situated that 

disposing of the action may as a practical matter impair or 

impede the movant's ability to protect its interest, unless 

existing parties adequately represent that interest. 
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Net recovery to Nationwide $138,280.96 

[¶8.] Nationwide then moved the federal district court, pursuant to Rule 

60(b)(1), to reconsider the court’s order denying as untimely Nationwide’s motion to 

intervene and approving the settlement agreement reached by the parties. 3 The 

court found Nationwide was a non-party to the action and, therefore, denied 

Nationwide’s motion. The court also noted that Marcia was required to obtain 

approval of the settlement under SDCL 21-5-6 because some settlement proceeds 

were allocated to minor children. Otherwise, no court approval would have been 

necessary for the settlement. See SDCL 21-5-6. The federal district court’s order 

also provided: “the settlement agreement’s apportionment of a portion of damages 

as ‘pecuniary’ does not necessary foreclose Nationwide from obtaining funds 

designated as such.” 

[¶9.] After the denial of its motions in federal district court, Nationwide 

filed a declaratory judgment action in the First Judicial Circuit against Marcia in 

her representative capacity. In its petition, Nationwide asserted it was entitled to 

its full lien in the amount of the $486,873.00 it paid in workers’ compensation 

3. Federal Rule of Civil Procedure Rule 60 provides the manner in which relief 

from a judgment or order may be obtained. It provides in relevant part: 

. . . 

(b) Grounds for Relief from a Final Judgment, Order, or 

Proceeding. 

On motion and just terms, the court may relieve a party or its 

legal representative from a final judgment, order, or proceeding 

for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable 

neglect[.] 
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benefits. Nationwide also alleged attorney fees for the federal district court action 

were statutorily limited by SDCL 62-7-36 to a maximum of twenty-five percent of 

the settlement, from which Marcia was entitled to deduct Nationwide’s prorata 

share. Nationwide further alleged that Marcia had not reached an agreement with 

Nationwide regarding its lien amount, and had failed to file a declaratory judgment 

action regarding the lien. Instead, Nationwide asserted that Marcia had petitioned 

the federal district court for approval of the settlement with an apportionment of 

the proceeds between pecuniary loss damages and economic loss damages, and no 

allocation to Nationwide for its lien as a way to obtain a double recovery of workers’ 

compensation benefits and tort damages for the same losses. 

[¶10.] Nationwide filed a motion for summary judgment in the matter. In its 

statement of material facts, Nationwide stated that Marcia had included in her 

petition to the federal district court for approval of the settlement a document 

entitled “Preliminary Economic Loss Appraisal for Edward Smithey,” authored by 

Dr. Ralph J. Brown. The report calculated the economic wage loss to Smithey’s 

estate between $2,087,474.00 and $2,247,309.00. Nationwide alleged that the 

settlement failed to allocate the pecuniary loss damages of $872,000.00 between 

economic versus non-economic losses. Thus, it argued the entire amount allocated 

to pecuniary loss damages plus the economic loss damages portion of the settlement 

was subject to Nationwide’s lien. 

[¶11.] Regarding the attorney fees awarded in the federal district court 

settlement, Nationwide argued to the circuit court that the thirty-five percent 

allocation exceeded the amount permitted by SDCL 62-7-36. SDCL 62-7-36 
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provides in relevant part: “Attorneys’ fees may not exceed the percentage of the 

amount of compensation benefits secured as a result of the attorney’s involvement 

as follows: (1) Twenty-five percent of the disputed amount arrived at by settlement 

of the parties[.]” Nationwide argued that the twenty-five percent limitation on 

attorney fees in SDCL 62-7-36(1) applied to the wrongful death tort claim as the 

thirty-five percent maximum attorney fee rate in SDCL 62-4-39 was modified by 

virtue of the language “subject to SDCL § 62-7-36” contained in SDCL 62-4-39. 

Under its theories on the issue of pecuniary loss damages and attorney fees, 

Nationwide calculated its lien as follows: 

Nationwide’s prorata recovery ($486,873.00/$1,090,000.00) = 43% 

Economic losses paid by Nationwide $ 486,873.00 

Attorney fees (1,090,000.00 x 25%) x 43% ( 116,590.00) 

Costs ( 43% of costs) ( 6,356.69) 4

Net recovery to Nationwide $ 349,770.00 

[¶12.] Marcia filed a response to Nationwide’s petition in which she alleged 

that she settled for $218,000.00 or just ten-percent of the estimated preliminary 

economic wage loss as contained in Dr. Brown’s report. She further argued that the 

balance of the settlement was for pecuniary, meaning non-economic, losses. At the 

hearing on Nationwide’s motion for summary judgment, Marcia argued she should 

 

4. It appears that Marcia deducted a prorata share of sales tax from 

Nationwide’s recovery in her scenario, but no allocation for sales tax was 

included in Nationwide’s calculations before the circuit court. Furthermore, 

Nationwide’s calculations appear at odds with the circuit court’s finding of 

fact number twenty-six, in which it is noted that the parties stipulated that 

expenses totaled $45,891.58 of which $31,783.44 represented costs, and 

$14,108.14 represented sales tax. The circuit court set Nationwide’s share of 

expenses at 44.7 percent of $45,891.58 for a total of $20,513.54. 
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have the opportunity to present evidence as to the full value of the non-economic 

losses. Marcia contended she would be able to show that the pecuniary losses 

incurred by her and her children would exceed the economic losses incurred by 

Edward’s estate as estimated by the expert witness in the federal action. Marcia 

also argued that under SDCL 62-4-39, the federal district court had the discretion 

to set attorney fees and expenses at a maximum of thirty-five percent. SDCL 62-4-

39 provides: 

If compensation has been awarded and paid under this title and 

the employee has recovered damages from another person, the 

employer having paid the compensation may recover from the 

employee an amount equal to the amount of compensation paid 

by the employer to the employee, less the necessary and 

reasonable expense of collecting the same, which expenses may 

include an attorney’s fee not in excess of thirty-five percent of 

compensation paid, subject to § 62-7-36. 

She claimed that because the federal court approved attorney fees at thirty percent, 

well below the maximum permitted under SDCL 62-4-39, the federal court’s order 

should not have been modified by the circuit court. 

[¶13.] The circuit court subsequently held a hearing on Nationwide’s motion 

for summary judgment. The circuit court determined that under this Court’s 

holding in Zoss v. Dakota Truck Underwriters, (Zoss II), 1999 SD 37, ¶11-15, 590 

NW2d 911, 913-14, pecuniary losses include both economic and non-economic losses. 

It further found that the federal district court did not allocate the $872,000.00 in 

pecuniary loss damages between economic and non-economic loss damages. The 

circuit court held that the entire amount of the pecuniary loss damages allocation 

plus the portion allocated to economic loss damages were available to satisfy 

Nationwide’s lien, less its prorata share of attorney fees and expenses incurred in 
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the federal district court litigation against the third party tortfeasors. The circuit 

court found that the provisions of SDCL 62-4-39 permitting a maximum of thirtyfive percent in attorney fees was modified by the provisions in SDCL 62-7-36. Thus, 

it concluded that the maximum amount in attorney fees permitted in the federal 

district court litigation was limited to twenty-five percent because the suit had 

settled prior to trial. The circuit court’s calculations were as follows: 

Nationwide’s lien of $486,873 = 44.7% of the $1,090.000.00 recovery 

Step 1 of Zoss formula: 

Economic losses paid by Nationwide $ 486,873.00 

Less Nationwide’s share of expenses (44.7% x 45,891.58) ( 20,513.00)5 

Step 1 subtotal $ 466,360.00 

Step 2 of Zoss formula: 

Attorney fees (466,360 x 25%) ( 116,590.00) 

Net recovery to Nationwide $ 349,770.00

Net recovery to Estate ($1,090,000.00 – $349,770.00) $740,230.00 

The circuit court concluded that the Smithey Estate’s share of the settlement 

proceeds was limited to $740,230.00 to prevent a double recovery of workers’ 

compensation benefits as precluded under Zoss v. Dakota Truck Underwriters, 1998 

SD 23, 575 NW2d 285 (Zoss I), and Zoss II. The circuit court’s decision to grant 

Nationwide’s motion for summary judgment was made without a full evidentiary 

hearing, and no fact finding as to the allocation of economic versus non-economic 

loss damages within the category of pecuniary loss damages in the federal 

settlement, or the amount of actual pecuniary loss damages suffered by Marcia and 

her two sons. 

 

5. The circuit court rounded-up to the closest dollar amount. 
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[¶14.] Although the circuit court entered summary judgment, it further 

entered findings of fact and conclusions of law. Marcia objected to the circuit court’s 

findings of fact and conclusions of law. Marcia appeals in her representative 

capacity and raises the following issues: 

1. Whether the federal district court’s approval of the settlement 

proceeds between pecuniary loss damages and economic loss 

damages was a final ruling as to what portions of the settlement 

proceeds were “like damages” for purposes of SDCL 62-4-38. 

2. Whether a state circuit court is required to hold a full 

evidentiary hearing before determining the amount of pecuniary 

loss damages obtained in a separate wrongful death tort action 

available to satisfy a statutory workers’ compensation lien under 

SDCL 62-4-38. 

3. Whether attorney fees in a wrongful death tort claim for which 

workers’ compensation benefits have been paid are limited by 

SDCL 62-7-36(1) to twenty-five percent when the wrongful 

death tort claim is settled prior to trial. 

STANDARD OF REVIEW

Our standard of review on summary judgment requires this 

Court to determine whether the moving party has demonstrated 

the absence of any genuine issue of material fact and 

entitlement to judgment on the merits as a matter of law. The 

circuit court’s conclusions of law are reviewed de novo. 

However, all facts and favorable inferences from those facts 

must be viewed in a light most favorable to the nonmoving 

party. We will affirm the circuit court’s ruling on a motion for 

summary judgment when any basis exists to support its ruling. 

Weitzel v. Sioux Valley Heart Partners, 2006 SD 45, ¶16, 714 NW2d 884, 

891 (internal citations omitted). We also review issues of statutory construction 

under the de novo standard of review. Discover Bank v. Stanley, 2008 SD 111, ¶15, 

757 NW2d, 756, 761 (citing Martinmaas v. Engleman, 2000 SD 85, ¶49, 612 NW2d 

600, 611). 
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ANALYSIS AND DECISION 

[¶15.] 1. Whether the federal district court’s approval of the 

settlement proceeds between pecuniary loss damages 

and economic loss damages was a final ruling as to what 

portions of the settlement proceeds were “like damages” 

for purposes of SDCL 62-4-38. 

[¶16.] Marcia argues on appeal that Nationwide filed its declaratory action in 

state circuit court in order to modify the federal district court’s order allocating 

settlement proceeds between pecuniary loss damages and economic loss damages. 

Marcia contends that the federal district court’s order was a final determination as 

to what damages were economic, and thus “like damages” for purposes of 

Nationwide’s subrogation lien. Marcia further contends that the circuit court was 

without jurisdiction to modify the federal district court’s order per the doctrine of 

res judicata. 

[¶17.] In response, Nationwide argues that the circuit court did not modify 

the federal district court’s order. Instead, Nationwide argues that pecuniary loss 

damages to which the federal district court allocated $872,000.00 included both 

economic and non-economic loss damages. As such, Nationwide argues, the fact 

that the federal district court did not allocate pecuniary loss damages between 

economic and non-economic loss damages makes the entire amount available as 

“like damages” under SDCL 62-4-38. 

[¶18.] SDCL 62-4-38 provides: 

If an injury for which compensation is payable under this title 

has been sustained under circumstances creating in some other 

person than the employer a legal liability to pay damages in 

respect thereto, the injured employee may, at the employee’s 

option, either claim compensation or proceed at law against such 

other person to recover damages or proceed against both the 
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employer and such other person. However, in the event the 

injured employee recovers any like damages from such other 

person, the recovered damages shall be an offset against any 

workers’ compensation which the employee would otherwise 

have been entitled to receive. 

The question before this Court is whether the federal district court’s approval of the 

settlement proceeds between pecuniary loss damages and economic loss damages 

was a final ruling as to what portions of the settlement proceeds were “like 

damages” for purposes of SDCL 62-4-38. 

[¶19.] The doctrine of res judicata bars any “attempt to relitigate a cause of 

action by the parties or one of the parties in privity to a party to an earlier suit.” 

Speck v. Federal Land Bank of Omaha, 494 NW2d 628, 633 (SD 1993) (citing 

Merchants State Bank v. Light, 458 NW2d 792 (SD 1990); Bank of Hoven v. 

Rausch, 449 NW2d 263 (SD 1989)). The doctrine “embodies both merger and bar[.]” 

Black Hills Jewerly Mfg. Co. v. Felco Jewel Indus., Inc., 336 NW2d 153, 157 (SD 

1983) (citing Palma v. Powers, 295 FSupp 924 (NDIll 1969)). “Res judicata serves 

as claim preclusion to prevent relitigation of an issue actually litigated or which 

could have been properly raised and determined in a prior action.” Id. (citing Matter 

of Estate of Nelson, 330 NW2d 151 (SD 1983); Schmidt v. Zellmer, 298 NW2d 178 

(SD 1980); Gottschalk v. South Dakota State Real Estate Comm’n, 265 NW2d 905 

(SD 1978))). Res judicata also requires that the court in which the matter was 

litigated have had jurisdiction and have issued a final and unreversed decision. Id. 

(citing Keith v. Willers Truck Serv., 65 SD 274, 266 NW2d 256 (1936)). 

[¶20.] In order for res judicata to apply, the cause of action in the prior 

litigation must be the same as the cause of action in the subsequent litigation. Id. 
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This Court adopted the broad test in Hanson v. Hunt Oil Co., 505 F2d 1237 (8thCir 

1974), for determining if both causes of action are the same. Id. A cause of action is 

comprised of the facts that gave rise to, or established, the right the party seeks to 

enforce. Id. (citations omitted). If the wrong sought to be redressed is the same in 

both actions, then res judicata applies. Id. (citing Woodbury v. Porter, 158 F2d 194 

(8thCir 1946)). 

[¶21.] In the instant case, the facts that gave rise to Marcia’s wrongful death 

claim in federal court were different from the facts that gave rise to Nationwide’s 

lien for workers’ compensation benefits. Marcia’s claim hinged on the conduct of the 

alleged tortfeasors and whether they were liable for any damages for Edward’s 

death. In addition, Marcia’s claim for wrongful death accrued upon Edward’s death. 

Nationwide’s claim arose under the statutory lien as provided in SDCL 62-4-38 

after it first determined that Edward’s death occurred in the course of his 

employment and it paid workers’ compensation benefits to Marcia. The issue of who 

was legally responsible for Edward’s death, the issue in the federal district court 

action, was not relevant to the determination of the amount of benefits Nationwide 

was required to pay, or the amount it could recover under its statutory lien. 

Furthermore, the amount of Nationwide’s lien was never at issue in the federal 

district court wrongful death action. 

[¶22.] The process by which to determine how much a workers’ compensation 

carrier may recover under its statutory lien after an employee or the employee’s 

estate is able to recover tort damages for ”like damages” is set out in Zoss I, 1998 

SD 23, ¶13, 575 NW2d at 262. The holding in Zoss I requires the employee or 
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personal representative to proceed under one of two alternative courses of action: 

either obtain an express allocation in the settlement or a judicial determination of 

the non-economic losses to which a workers’ compensation lien cannot attach. Id. A 

settlement will be given legal effect as to portions subject to the workers’ 

compensation insurer’s lien when “the issue is fully and fairly tried before an 

impartial fact finder or where the insurance carrier is invited to participate in 

settlement negotiations.” Id., 1998 SD 23, ¶14 n4, 575 NW2d at 263 n4. 

[¶23.] The issue of how much of the damages recovered by Edward’s estate 

could be used to satisfy Nationwide’s lien could not have been litigated before the 

jury in the federal district court wrongful death action. That issue would have 

needed to come before the federal district court as a declaratory judgment action 

and not a wrongful death tort action as it did in this instance. See Zoss I, 1998 SD 

23, ¶13, 575 NW2d at 262 (holding a declaratory judgment action is one of two 

possible methods to be used in determining a workers’ compensation insurer’s right 

to proceeds from a suit or settlement with third party tortfeasors). Furthermore, 

the issue of Nationwide’s lien was never addressed by the federal district court in 

its order approving the settlement between Marcia and the alleged tortfeasors. 

Instead, the federal court acknowledged its approval of the settlement did not 

“foreclose Nationwide from obtaining funds” designated as pecuniary loss damages. 

[¶24.] All that Marcia obtained from the federal district court was an express 

allocation between pecuniary loss damages and economic loss damages as part of its 

approval of the terms of the settlement of the wrongful death action and approval of 

the proceeds allocated to her children. Marcia did not obtain an express allocation 
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of what portion, if any, of the settlement proceeds were “like damages” for purposes 

of SDCL 62-4-38 as required under Zoss I. Nor did the federal court, as it 

specifically noted, attempt such an allocation in an effort to settle all accounts 

including the workers’ compensation lien. 

[¶25.] Hence, res judicata did not apply to the issue before the circuit court 

and the determination of Nationwide’s lien was properly before it. The circuit court 

did not err when it considered the declaratory action brought by Nationwide as it 

did not attempt to modify an order issued by the federal district court. 

[¶26.] 2. Whether a state circuit court is required to hold a full 

evidentiary hearing before determining the amount of 

pecuniary loss damages obtained in a separate wrongful 

death tort action available to satisfy a statutory workers’ 

compensation lien under SDCL 62-38. 

[¶27.] Nationwide argued at the hearing on its motion for summary judgment 

that under this Court’s holding in Zoss II, 1999 SD 37, 590 NW2d 911, pecuniary 

damages include both economic loss damages and non-economic loss damages. The 

circuit court accepted Nationwide’s argument. It then found that because the 

federal district court did not allocate the pecuniary loss damages awarded to Marcia 

as either economic or non-economic in nature, the entire $872,000.00 in pecuniary 

loss damages plus the $218,000.00 in economic loss damages were “like damages” 

for purposes of SDCL 62-4-38. 

[¶28.] Marcia argues on appeal that the circuit court was required to hold a 

full evidentiary hearing on the issue. Marcia argues that the report submitted by 

her damages expert in the federal court proceedings did not provide any calculation 

of the non-economic losses. Instead, it estimated only the economic damages. 
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Marcia acknowledges that the amount of economic losses for Edward’s death were 

between $2,087,474.00 and $2,247,309.00. Marcia contends that she may well have 

been able to establish that the entire amount allocated as pecuniary damages was 

for non-economic loss damages incurred by her and her two minor children. Marcia 

argues the non-economic loss damages were potentially six to eight times the 

amount of the economic loss damages. 

[¶29.] Nationwide relies on one line in Zoss II in support of its argument that 

the pecuniary loss damages included both economic and non-economic losses: 

“pecuniary injury encompasses more than strictly economic losses . . . .” See id., 

1999 SD 37, ¶11, 590 NW2d at 913. However, the full sentence was not quoted by 

Nationwide in its brief, which reads as follows: 

pecuniary injury encompasses more than strictly economic 

losses in that it includes “the loss of decedent’s companionship 

and society as expressed by, but not limited to, the words 

‘advice,’ ‘assistance,’ and ‘protection,’ but without consideration 

for the grief and mental anguish suffered by the beneficiaries 

because of the wrongful death.” 

Id., 590 NW2d at 913-14. 

[¶30.] The narrow holding of that case was that “the terms ‘loss of 

consortium’ and ‘pecuniary loss’ are not co-extensive and must not be used 

interchangeably.” Id. ¶15. We also held that a surviving spouse “should have the 

opportunity to prove the amount, if any, of the settlement that compensates her for 

such pecuniary loss” damages that are not “like damages” within the meaning of 

SDCL 62-4-38. Id. ¶16. We then remanded the issue to the circuit court to separate 

the damages that were not like damages from “like damages” after a full evidentiary 

hearing. Id. ¶18. 
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[¶31.] In the instant case, Nationwide paid Edward’s estate for economic loss 

damages including medical expenses, burial expenses, death benefits, and future 

death benefits. Nationwide did not pay benefits to the estate for the loss of 

Edward’s society and companionship, or the loss of his protection, guidance, advice 

and assistance. An action for these damages “‘is not brought by the spouse as the 

personal representative of the employee, but is an independent action to recover for 

injuries the spouse has suffered, such as loss of support and loss of society.’” Zoss I, 

1998 SD 23, ¶12, 575 NW2d at 262 Thus, “the workers’ compensation lien does not 

attach to that portion of the settlement proceeds designated as a settlement of [a] 

widow’s claim for loss of consortium.” Id. There is nothing in our workers’ 

compensation code that permits an insurer to recover its workers’ compensation lien 

from damages that were recovered by the spouse in an independent action for 

injuries the spouse suffered. 

[¶32.] This view is illustrated in the United States Supreme Court’s analysis 

in its 2006 decision in Arkansas Dep’t. of Health and Human Serv. v. Ahlborn, in 

the context of ERISA subrogation. 547 US 268, 288, n19, 126 SCt 1752, 1755, n19, 

164 LEd2d 459 (2006) (quoting Flanigan v. Dep’t of Labor and Indus., 869 P2d 14, 

17 (Wash 1994)). An insurer may not recover its statutory right of reimbursement 

under ERISA for medical bills it paid on behalf of an employee from funds recovered 

from a third party tortfeasor for other damages incurred by the spouse or child. Id. 

Allowing an ERISA plan to recover its lien from damages obtained from a third 

party tortfeasor that were intended to compensate the employee’s family for nonmedical damages incurred by the employee’s family would permit the insured a 
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“share in damages for which it has provided no compensation.” Id. (quoting 

Flanigan, 869 P2d at 17)). Such a result would be “absurd and fundamentally 

unjust.” Id. 

[¶33.] While in the context of an ERISA claim, the point is also well taken in 

the context of workers’ compensation benefits. As the Supreme Court of 

Washington noted in Flanigan, payment of workers’ compensation benefits to an 

employee who then recovers from a third party responsible for the injuries incurred 

by the employee does not automatically result in a “double recovery” by the 

employee. 869 P2d at 17. “[T]he employee receives a double recovery only if the 

third party recovery is for damages which are already compensated for by workers’ 

compensation benefits.” Id. The Washington court went on to hold that if the 

department were allowed to recover from damages paid by a third party that were 

intended to compensate the employee or his family for injuries other than those for 

which the department paid workers’ compensation benefits, the department would 

receive a windfall. Id. 

[¶34.] In the instant case if we were to do as Nationwide argues, and as the 

circuit court did below, we would allow Nationwide a windfall to which it is not 

entitled. Moreover, our statutory scheme does not permit Nationwide a recovery 

against any portion of the non-economic loss damages obtained by Marcia and her 

sons in a suit against third party tortfeasors, as Nationwide did not pay workers’ 

compensation benefits that represented an award for these damages. See SDCL 62-

4-38 (limits recovery against only “like damages.”) The circuit court’s order allowed 

Nationwide to “share in damages for which it ha[d] provided no compensation” to 
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Edward’s estate. Such an “absurd and fundamentally unjust” result is against the 

provisions of SDCL 62-4-38. 

[¶35.] There was no opportunity for Marcia to present evidence and to argue 

in a declaratory judgment action what portion of the pecuniary loss damages were 

for the loss of Edward’s society and companionship, including the loss of his 

protection, guidance, advice and assistance, as opposed to economic losses. The 

amount of “like damages” remained a disputed material fact after the circuit court 

hearing. The amount was never determined by settlement or in a declaratory 

judgment action. Instead, Nationwide was able to prevail on its motion for 

summary judgment while the material fact as to the proper allocation remained in 

dispute. 

[¶36.] Given that Nationwide refused to enter into a binding settlement 

agreement regarding its lien, the only other avenue available to the parties to 

determine the lien amount under Zoss I was for the issue to be tried “fully and fairly 

before an impartial fact finder.” See Zoss I, 1998 SD 23, ¶14, n4, 575 NW2d at 263, 

n4. While Marcia argues that Nationwide’s failure to participate in the negotiations 

should preclude it from obtaining its full lien, we do not agree. Nationwide 

responded to the invitation by stating clearly it would not compromise its 

subrogation claim. It would have been expedient, and in keeping with our preferred 

method as stated in Zoss I, to have Nationwide at the table and to have resolved all 

issues via settlement negotiations. The holding in Zoss I, however, clearly allows 

the alternative method of trial before an impartial finder of fact, instead of 

settlement negotiations, to be used to determine the amount of “like damages.” Id. 
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[¶37.] While this Court stated its preference in Zoss I that a declaratory 

judgment action occurs prior to settlement or suit with the tortfeasor, that sequence 

is not required by any statute or court rule. We also note that it may not be possible 

to determine the workers’ compensation lien prior to knowing the amount of 

recovery from a third party tortfeasor. Step three of the Zoss I formula assumes 

that the amount recovered from a third party tortfeasor is known and the allocation 

between “like damages” and other types of damages from which a workers’ 

compensation lien may not be satisfied is also known. See id. ¶17, 575 NW2d at 263 

(each step of the formula assumes the amount of the third party recovery is known). 

It is not possible to calculate any steps of the Zoss I formula if the declaratory 

judgment action to determine the workers’ compensation insurer’s lien is filed 

before any negotiations or settlement with the third party tortfeasor has been 

attempted. The better course of conduct is for the insurer to participate in the 

negotiations with the third party tortfeasor and for all interested parties to attempt 

resolution after the amount of any third party recovery is known. 

[¶38.] We decline Nationwide’s invitation to punish the estate by subjecting 

all proceeds to Nationwide’s lien for the estate’s failure to file a declaratory 

judgment action first to determine the amount of Nationwide’s lien before pursing 

the wrongful death action against the tortfeasors in federal district court. We will 

not penalize the estate for going forward with a settlement or suit against the 

tortfeasor when the insurer refused to participate in settlement negotiations to 

which the insurer received ample notice and multiple invitations. To do as 

Nationwide suggests is to allow an insurer to hold the estate hostage. An insurer 
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could refuse to litigate against the tortfeasor directly under SDCL 62-4-40; refuse to 

enter into settlement negotiations with the estate; wait until the litigation between 

the estate and the tortfeasors is completed, and then move to collect its lien against 

all proceeds obtained by the estate from the tortfeasor. If we allow Nationwide’s 

argument to prevail and allow it to enforce its subrogation lien against all damages 

regardless of whether they are “like damages,” we in effect would punish the estate 

for not filing the declaratory action first before proceeding against the tortfeasor 

when we have noted there are two options for determining the insurer’s lien. 

[¶39.] Moreover, this is not a matter of equitable division based on the 

conduct of the parties. We are engaged in an issue of statutory construction. Again, 

we reiterate that the preferred method is to determine the lien value before final 

settlement with a third party tortfeasor. When that is not possible due to the 

resistance of one party or the other to settlement negotiations, the sequencing of 

declaratory action and the action against a third party cannot be the determining 

factor for deciding what are “like damages” under SDCL 62-4-38. 

[¶40.] The circuit court erred when it found that Marcia’s failure to request a 

further sub-allocation from the federal district court of the pecuniary loss damages 

between economic and non-economic loss damages made the entire amount 

available as “like damages” for purposes of SDCL 62-4-38. Instead, a genuine issue 

of material fact existed as to amount of economic losses versus non-economic losses 

included in the damages labeled as “pecuniary loss damages,” which required a full 

and fair hearing on the issue. 
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[¶41.] 3. Whether attorney fees in a wrongful death tort claim for 

which workers’ compensation benefits have been paid 

are limited by SDCL 62-7-36(1) to twenty-five percent 

when the wrongful death tort claim is settled prior to 

trial. 

[¶42.] The federal district court approved a settlement between Marcia and 

the tortfeasors that included an allocation of thirty percent for attorneys’ fees. That 

court did not consider what portion of those attorney fees should be setoff against 

the subrogation lien because the amount of Nationwide’s lien was never before that 

court. It merely approved the application as presented by Marcia. 

[¶43.] Nationwide argued to the circuit court that the attorneys’ fees for the 

workers’ compensation claim and the subrogation issue should have been limited to 

twenty-five percent based on the language of SDCL 62-7-36(1). SDCL 62-7-36 

provides: 

Except as otherwise provided, fees for legal services under this 

title shall be subject to approval of the department. 

Attorneys’ fees may not exceed the percentage of the amount of 

compensation benefits secured as a result of the attorney’s 

involvement as follows: 

(1) Twenty-five percent of the disputed amount arrived at by 

settlement of the parties; 

(2) Thirty percent of the disputed amount awarded by the 

Department of Labor after hearing or through appeal to 

circuit court; 

(3) Thirty-five percent of the disputed amount awarded if an 

appeal is successful to the Supreme Court. 

Attorneys’ fees and costs may be paid in a lump sum on the 

present value of the settlement or adjudicated amount. 
#24976 

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(Emphasis added). Marcia argued to the circuit court that the language in SDCL 

62-4-39 allowed for a maximum of thirty-five percent for attorneys’ fees: 

If compensation has been awarded and paid under this title and 

the employee has recovered damages from another person, the 

employer having paid the compensation may recover from the 

employee an amount equal to the amount of compensation paid 

by the employer to the employee, less the necessary and 

reasonable expense of collecting the same, which expenses may 

include an attorney’s fee not in excess of thirty-five percent of 

compensation paid, subject to § 62-7-36. 

SDCL 62-4-39. The circuit court used the twenty-five percent limitation in SDCL 

62-7-36(1) and rejected Marcia’s arguments in support of the thirty percent 

attorneys’ fee approved by the federal district court. 

[¶44.] Marcia argues on appeal that the circuit court erred when it limited 

attorneys’ fees to twenty-five percent of the settlement amount. She contends that 

the last clause in SDCL 62-4-39, “subject to § 62-7-36” pertains only to the last 

sentence of SDCL 62-7-36, which provides “[a]ttorneys’ fees and costs may be paid 

in a lump sum on the present value of the settlement or adjudicated amount[.]” She 

argues that the limitation in SDCL 62-7-36 is triggered only when a settlement 

between the employee, or the estate of the employee, and the third party tortfeasor 

is to be paid out over a period of years. In the event of a multi-year payout of 

settlement proceeds, the limitation would permit a maximum of thirty-five percent 

for attorneys’ fees times the “present value” of the sum total of the payments rather 

than thirty-five percent of each payment to be received in the future. Marcia argues 

that because the settlement she arrived at with the third party tortfeasors was for a 

lump sum payment, the limitation in SDCL 62-7-36 on using the “present value” of 

a multi-year settlement did not apply to the fact of this case. 
#24976 

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[¶45.] Instead, Marcia argues the only limitation on attorneys’ fees when an 

estate recovers damages from a tortfeasor after workers’ compensation benefits 

have been paid by an insurer is contained in SDCL 62-4-39, which limits the 

estate’s attorneys’ fees to a maximum of thirty-five percent of the total settlement 

with the tortfeasor. She further argues that the twenty-five percent limitation on 

attorney fees when settlement has been reached as found in SDCL 62-7-36(1) 

pertains only to the attorney fees expended by an employee, or his or her estate, in 

obtaining workers’ compensation benefits from an employer and its insurer. Marcia 

further contends that reading the twenty-five percent limitation found in SDCL 62-

7-36(1) that pertains to attorney’s fees expended in obtaining a settlement for 

workers’ compensation benefits from an employer and its insurer into the provisions 

in SDCL 62-4-39, which pertains to the recovery of damages from a third party after 

workers compensation benefits have been paid, renders the language in SDCL 62-4-

39 “which expenses may include an attorney’s fee not in excess of thirty-five percent 

of compensation paid” superfluous. 

[¶46.] Nationwide contends that the language in SDCL 62-4-39, “subject to § 

62-7-36” pertains to the percentage limitations provided in SDCL 62-7-36. It argues 

that the circuit court was correct when it limited the deduction for attorney fees 

expended in obtaining the settlement with the third party tortfeasors to twenty-five 

percent. 

[¶47.] “Statutory construction is employed to discover the true intent of the 

legislature in enacting laws, which is ascertained primarily from the language 

employed in the statute. We give words their plain meaning and effect, and read 
#24976 

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statutes as a whole, as well as enactments relating to the same subject.” Chapman 

v. Chapman, 2006 SD 36, ¶11, 713 NW2d 572, 576 (SD 2006) (quoting State v. Myrl 

& Roy’s Paving, Inc., 2004 SD 98, ¶6, 686 NW2d 651, 653). We construe statues in 

their entirety. Discover Bank, 2008 SD 111, ¶21, 757 NW2d at 762 (citing Jensen v. 

Turner County Bd. of Adjustment, 2007 SD 28, ¶12, 730 NW2d 411, 415). We also 

read statutes with the underlying assumption that the Legislature did not insert 

surplusage into its enactments. National Farmers Union Property and Cas. Co. v. 

Universal Underwriters Ins. Co., 534 NW2d 63, 65 (SD 1995) (citing Revier v. 

School Bd. of Sioux Falls, 300 NW2d 55, 57 (SD 1981)). Furthermore, 

Since statutes must be construed according to their intent, the 

intent must be determined from the statute as a whole, as well 

as enactments relating to the same subject. But, in construing 

statutes together it is presumed that the legislature did not 

intend an absurd or unreasonable result. When the question is 

which of two enactments the legislature intended to apply to a 

particular situation, terms of a statute relating to a particular 

subject will prevail over the general terms of another statute. 

State v. I-90 Truck Haven Serv., Inc., 2003 SD 51, ¶3, 662 NW2d 288, 290 (quoting 

Martinmaas, 2000 SD 85, ¶49, 612 NW2d at 611). 

[¶48.] The language in SDCL 62-7-36 that limits attorney’s fees to a 

percentage based on what stage of litigation is required to achieve an award of 

workers’ compensation benefits, provides that the limitations pertain to legal 

services rendered “under this title” and further requires “approval of the 

department.” See SDCL 62-7-36. The words “under this title” indicate that the 

limitations apply to legal services used by an employee to obtain workers’ 

compensation benefits from his or her employer and its insurer under Chapter 62, 

Title 7. SDCL 62-7-36. 
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[¶49.] The language in SDCL 62-4-39 that limits attorneys’ fees to thirty-five 

percent indicates that it applies to the recovery of damages from a third party when 

workers’ compensation benefits have also been awarded to an employee under 

Chapter 62, Title 4. SDCL 62-4-39. See also Zoss I, 1998 SD 23, ¶17, 575 NW2d at 

263. There is no differentiation contained within the language of SDCL 62-4-39 as 

to the maximum rate of attorney fees that may be charged based on whether the 

tort claim against a third party is settled prior to trial, at trial, or is resolved on 

appeal. Id. 

[¶50.] If we were to graft the three levels of attorney fees contained in SDCL 

62-7-36 onto the provisions of SDCL 62-4-39 as suggested by Nationwide, the result 

would be absurd. SDCL 62-4-39 would then indicate that attorney fees of thirty 

percent could only result when a disputed amount was awarded by the Department 

of Labor – something that cannot happen in a tort claim, as such a claim would 

never be heard by the Department of Labor. In addition, it would also render the 

maximum limitation language in SDCL 62-4-39 superfluous as the maximum rate 

is also contained in SDCL 62-7-36. Finally, our holding in Zoss I indicates that 

thirty-five percent is the maximum percentage for attorney fees as provided under 

SDCL 62-4-39 when a workers’ compensation lien is involved, but contains no 

differentiation for damages obtained via settlement, trial, or appeal. Id. (holding 

that thirty-five percent was the maximum range for attorney fees in a wrongful 

death suit that resulted in a settlement between Zoss’s estate and a third party 

tortfeasor). 
#24976 

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[¶51.] The circuit court erred when it limited attorney fees from the federal 

tort claim action to twenty-five percent. Those attorney fees were set by the federal 

district at thirty percent, and were within the statutory maximum of thirty-five 

percent as limited by SDCL 62-4-39. 

[¶52.] The circuit court’s order is reversed and remanded with direction to 

hold a full hearing on the issue of economic versus non-economic loss damages 

included in the $1,090,000.00 settlement. After that amount is determined and the 

prorata shares determined for each party, the circuit court must use the thirty 

percent attorney fee rate approved by the federal district court in determining the 

funds available to satisfy Nationwide’s lien using the formula detailed in this 

Court’s holding in Zoss I and Zoss II. 

[¶53.] Reversed and remanded. 

[¶54.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, and SABERS, 

Retired Justice, concur.