#23711-a-JKM 

2006 SD 49 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

JOSEPH D. HOCKETT and 

PEGGY L. HOCKETT, Plaintiffs and Appellees, 

 v. 

GLENN D. LaPOINTE, Defendant, 

 and 

AMCO INSURANCE COMPANY, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SIXTH JUDICIAL CIRCUIT 

GREGORY COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE KATHLEEN F. TRANDAHL 

Judge 

* * * * 

STANLEY E. WHITING Attorney for plaintiffs 

Winner, South Dakota and appellees. 

ROBERT B. ANDERSON 

BRITTANY L. NOVOTNY of 

May, Adam, Gerdes & Thompson, LLP Attorneys for defendant 

Pierre, South Dakota and appellant. 

* * * * 

 

 CONSIDERED ON BRIEFS 

 ON JANUARY 9, 2006 

 OPINION FILED 06/07/06 
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MEIERHENRY, Justice. 

[¶1.] Joseph and Peggy Hockett (Hocketts) each suffered damages in excess 

of $100,000 due to an automobile accident with an uninsured motorist. Hocketts 

each received $100,000 of uninsured motorist (UM) benefits from the primary policy 

that covered the vehicle in which they were traveling. They then sought to recover 

uninsured motorist coverage from their insurer, AMCO Insurance Company 

(AMCO). The trial court determined Hocketts could stack their UM benefits. The 

narrow issue presented on appeal is whether, absent a request for greater coverage, 

the language of SDCL 58-11-9 allows Hocketts to stack UM policies where doing so 

results in a recovery in excess of $100,000. We hold that the language of SDCL 58-

11-9 does not create a mandatory maximum amount of recovery when UM policies 

are stacked. 

FACTS 

[¶2.] This case arose out of an automobile accident involving two vehicles. 

Neither the driver at fault, Glenn LaPointe (LaPointe), nor the vehicle he drove 

were insured. The second vehicle was owned by Rebecca Hockett and insured by 

State Farm Mutual Automobile Insurance Company (State Farm). At the time of 

the accident, Rebecca’s father, Joseph Hockett was driving the vehicle, and both 

Peggy Hockett, Joseph’s wife, and Rebecca were passengers. Joseph and Peggy are 

the plaintiffs in this action. 

[¶3.] Rebecca’s State Farm policy provided uninsured motorist coverage up 

to $100,000 per person or $300,000 per accident. As the primary insurer, State 

Farm paid both Joseph and Peggy Hockett $100,000 each for the injuries they 
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sustained. The parties stipulated that each sustained injuries in excess of 

$100,000. Joseph and Peggy Hockett were also insured under a personal 

automobile policy provided by AMCO, which provided UM coverage of $50,000 per 

person or $100,000 per accident. Hocketts filed a claim with AMCO for that 

amount, but AMCO denied coverage. 

[¶4.] Hocketts brought this suit against LaPointe and AMCO. Hocketts 

alleged that they each incurred damages in excess of $100,000. Therefore, they 

sought not only a judgment against LaPointe for damages, but also a declaration 

that the AMCO policy must be used to satisfy that judgment in whole or in part. 

Asserting that Hocketts had no claim for coverage, AMCO moved for summary 

judgment. The parties submitted a statement of undisputed material facts which 

stipulated that Hocketts each recovered $100,000 from State Farm and that they 

were requesting the additional $50,000 uninsured motorist coverage provided by 

the AMCO policy. The circuit court denied AMCO’s motion and ruled that Hocketts 

could recover from AMCO. The court determined that Hocketts could stack the 

AMCO uninsured motorist coverage up to the amount of their actual injuries. 

AMCO appeals that decision and presents one issue for this Court’s determination. 

ISSUE 

 Whether the trial court erred in its determination that the 

language of SDCL 58-11-9 does not prohibit Hocketts from 

recovering under their own insurance policy’s UM coverage 

when their damages exceeded the $100,000 UM recovered from 

other insurance. 
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STANDARD OF REVIEW 

[¶5.] As we have repeatedly recognized, summary judgment is appropriate 

when the moving party demonstrates that there is no genuine issue of material fact. 

SDCL 15-6-56(c); Thornton v. City of Rapid City, 2005 SD 15, ¶4, 692 NW2d 525, 

528-29. In doing so, we must view all evidence in a light most favorable to the 

nonmoving party. Id. (citation omitted). We must also determine whether the law 

was correctly applied. Phen v. Progressive N. Ins. Co., 2003 SD 133, ¶5, 672 NW2d 

52, 54. The interpretation of both statutes and insurance contracts are questions of 

law subject to de novo review. MGA Ins. Co. v. Goodsell, 2005 SD 118, ¶9, 707 

NW2d 483, 485. 

DECISION 

[¶6.] The backdrop of our stacking jurisprudence is sometimes a confusing 

patchwork of cases and statutes defining and redefining both UM benefits and 

underinsured motorist (UIM) benefits. Since the Legislature first mandated UM 

and UIM coverage in this state, the law has been changed and interpreted several 

times. See, e.g., Phen, 2003 SD 133, 672 NW2d at 52; Nickerson v. Am. States Ins., 

2000 SD 121, 616 NW2d 468; Union Ins. Co. v. Stanage, 454 NW2d 736 (SD 1990); 

Cunningham v. W. Cas. & Sur. Co., 90 SD 530, 243 NW2d 172 (1976); Westphal v. 

Amco Ins. Co., 87 SD 404, 209 NW2d 555 (1973). For the most part, stacking is now 

controlled by statute. SDCL 58-11-9.7 prohibits stacking an insured’s UM and UIM 

benefits “to determine the limit of insurance coverage available to an injured person 

for any one accident,” unless “two or more separate motor vehicle operators, one 

uninsured and the other underinsured, are determined to be liable.” Likewise, 
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SDCL 58-11-9.8 disallows stacking UM benefits from more than one of an insured’s 

vehicles, while SDCL 58-11-9.9 does the same for UIM benefits.1 In addition, SDCL 

58-11-9.5—the “difference of limits” statute—prohibits “stacking of UIM coverage 

from two policies.” Nickerson, 2000 SD 121, ¶12, 616 NW2d at 471. 

[¶7.] In contrast, however, the current law does not specifically prohibit 

stacking UM coverage available under two different policies from two different 

insurers. We first addressed such a situation in Westphal, 87 SD at 404, 209 NW2d 

at 555. Westphal held that a policy provision precluding the recovery of UM 

benefits where such benefits were recoverable from another vehicle was against 

public policy and therefore void. Id. at 410-11, 209 NW2d at 559. As a result, 

Westphal allowed a person injured by an uninsured motorist while riding in 

another’s vehicle to recover both the UM coverage applicable to that vehicle and 

1. SDCL 58-11-9.8 provides: 

Regardless of the number of policies involved, vehicles involved, 

persons covered, claims made, vehicles or premiums shown on 

the insured’s policy, or premiums paid, in no event may the limit 

of liability for uninsured motorist coverage for two or more of the 

insured’s motor vehicles be added together to determine the 

limit of insurance coverage available to an injured person for 

any one accident. 

SDCL 58-11-9.9 provides: 

Regardless of the number of policies involved, vehicles involved, 

persons covered, claims made, vehicles or premiums shown on 

the insured’s policy, or premiums paid, in no event may the limit 

of liability for underinsured motorist coverage for two or more of 

the insured’s motor vehicles be added together to determine the 

limit of insurance coverage available to an injured person for 

any one accident.
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also the UM coverage available under the injured person’s own automobile liability 

policy. Id.

[¶8.] Although the UM statute, SDCL 58-11-9, has been amended since our 

decision in Westphal, none of the amendments changed our Westphal analysis and 

we have repeatedly affirmed its holding. See Phen, 2003 SD 133, ¶21, 672 NW2d at 

58; Union, 454 NW2d at 739. Our most recent stacking case, Phen, follows 

Westphal and determines that a policy provision which precludes recovery of UM 

benefits is against public policy. See 2003 SD 133, ¶21, 672 NW2d at 58. 

[¶9.] While recognizing that our decisions in Westphal and Phen allow 

stacking in situations almost identical to the one presented in this case, AMCO 

contends that the language of the UM statute precludes stacking here. Therefore, 

we must consider the language of the current version of the statute and the 

evolution thereof. The UM coverage statute was first enacted in 1966. The statute 

provided: 

No policy insuring against loss resulting from liability imposed 

by law for bodily injury or death suffered by any person arising 

out of the ownership, maintenance or use of a motor vehicle 

shall be delivered or issued for delivery in this state with respect 

to any motor vehicle registered or principally garaged in this 

state unless coverage is provided therein or supplemental 

thereto in limits for bodily injury or death set forth in §32-35-70 

[$15,000/$30,000] for the protection of persons insured

thereunder who are legally entitled to recover damages from 

owners or operators of uninsured motor vehicles and hit-and-run 

motor vehicles because of bodily injury, sickness or disease, 

including death, resulting therefrom; provided, that the named 

insured shall have the right to reject such coverage . . . . 

1966 SD Laws ch 111, § 16(5). The first change occurred in 1972 when the 

Legislature removed the provision that allowed an insured to reject UM coverage, 
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thus making coverage mandatory. 1972 SD Laws ch 261. The Legislature again 

amended the statute in 1975 and 1982. 1975 SL ch 307; 1982 SL ch 356. The 1975 

amendment allowed an insured to request UM coverage in excess of the amount 

provided by statute. 1975 SL ch 315, § 1. The 1982 amendment set the required 

amounts of UM coverage as follows: 

. . . the coverage required by this section may not exceed the 

limits of one hundred thousand dollars because of bodily injury 

to or death of one person in any one accident and, subject to the 

limit for one person, three hundred thousand dollars because of 

bodily injury to or death of two or more persons in any one 

accident, unless additional coverage is requested by the insured. 

 

1982 SL ch 356. The 1982 provisions remain in effect today.

[¶10.] These legislative changes have resulted in the current version of SDCL 

58-11-9 which, in its entirety, provides: 

No policy insuring against loss resulting from liability imposed 

by law for bodily injury or death suffered by any person arising 

out of the ownership, maintenance or use of a motor vehicle may 

be delivered or issued for delivery in this state with respect to 

any motor vehicle registered or principally garaged in this state, 

except for snowmobiles, unless coverage is provided therein or 

supplemental thereto in limits for bodily injury or death equal to 

the coverage provided by such policy for bodily injury and death, 

for the protection of persons insured thereunder who are legally 

entitled to recover damages from owners or operators of 

uninsured motor vehicles and hit-and-run motor vehicles 

because of bodily injury, sickness, or disease, including death, 

resulting therefrom. However, the coverage required by this 

section may not exceed the limits of one hundred thousand 

dollars because of bodily injury to or death of one person in any 

one accident and, subject to the limit for one person, three 

hundred thousand dollars because of bodily injury to or death of 

two or more persons in any one accident, unless additional 

coverage is requested by the insured. Any policy insuring 

government owned vehicles may not be required to provide 

uninsured motorist coverage. 
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SDCL 58-11-9. In essence, the UM statute requires all automobile liability 

insurance policies “delivered or issued for delivery” in South Dakota covering “any 

motor vehicle registered or principally garaged” in South Dakota to provide 

coverage for damages inflicted by uninsured and hit-and-run motorists. SDCL 58-

11-9. The required UM policy coverage must be “in limits for bodily injury or death 

equal to the coverage provided by such policy for bodily injury and death.” SDCL 

58-11-9. Additionally, the UM policy coverage “may not exceed the limits of one 

hundred thousand dollars because of bodily injury to or death of one person in any 

one accident and, subject to the limit for one person, three hundred thousand dollars

because of bodily injury to or death of two or more persons in any one accident, 

unless additional coverage is requested by the insured.” SDCL 58-11-9 (emphasis 

added). 

[¶11.] AMCO claims that the $100,000/$300,000 amounts referenced in the 

statute serve as the mandatory maximum recovery when two or more UM policies 

are stacked. The plain meaning of the statutory language, however, does not 

suggest such an interpretation. The statute defines coverage, not recovery. Clearly, 

the statute requires all vehicle liability policies issued in this state to include 

coverage for damages incurred because of the negligence of uninsured drivers and 

vehicle owners. Additionally, the required UM coverage must be provided in the 

same amount as the liability coverage in the policy up to the maximum of $100,000 

per person or $300,000 per accident, unless the insured requests more. Other 

statutes require minimum liability coverage of $25,000 for one person per accident 

and $50,000 for two or more people per accident. SDCL 32-35-70; see also SDCL 32-
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35-113 (stating that failure to maintain the minimum automobile liability insurance 

is a Class 2 misdemeanor). Therefore, in the absence of a request for additional 

insurance, SDCL 58-11-9 requires that an insurer provide UM coverage between 

$25,000 and $100,000 for one person per accident and $50,000 and $300,000 for two 

or more people, depending on the amount of liability coverage in the policy. The 

plain meaning of the language should not be interpreted to mean that the 

Legislature intended to set a maximum amount of recovery regardless of the loss or 

the number of policies. 

[¶12.] AMCO points to language used by this Court in Union in support of its 

argument that SDCL 58-11-9 sets a statutory maximum amount of permissible UM 

recovery. See Union, 454 NW2d at 739. The language to which AMCO refers is 

part of a paragraph in which this Court discussed the public policy applicable to 

stacking the UM benefits of two policies issued to the same insured by the same 

insurer. Id. The one sentence taken out of context reads: “This modification of 

[SDCL 58-11-9 setting a maximum amount of required UM coverage] reflects a 

legislative determination that the maximum amount set forth in the statute is 

sufficient to protect those insureds who may be legally entitled to recover against an 

uninsured motorist.” Id. In the context of the entire opinion, however, that 

sentence should not be read to mean that the Legislature set a mandatory 

maximum recovery amount merely by requiring all liability policies to include UM 

coverage. In fact, a close reading of Union reveals that this language was not 
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central to the holding.2 What was central to the holding was the language of the 

insurance policy provision, which we determined controlled the outcome. 454 NW2d 

2. Union Insurance Co. v. Stanage came before this Court subsequent to the 

1982 amendment setting coverage amounts. 454 NW2d at 736. The facts at 

issue in Union arose one month before the relevant anti-stacking statute, 

SDCL 58-11-9.8, discussed infra at ¶20, took effect. Union, 454 NW2d at 

738. The issue in Union was whether the insured could stack UM coverage in 

two policies of insurance issued to the insured by the same insurer. Id. at 

737. Both of Union’s policies contained clauses limiting its maximum 

liability to $100,000 per person per accident in clear, unambiguous terms. Id.

at 738. We said: 

In resolving the issue of whether [an insured] should be allowed 

to stack [UM] coverages . . . the determinative factor must be 

the apparent policy of our state legislature. By enacting SDCL 

58-11-9, our legislature clearly sought to provide protection to 

certain insureds who may be legally entitled to recover against 

uninsured motorists. Subsequent to our decision in Westphal, 

the legislature amended this statute by providing a maximum 

amount of uninsured motorist coverage that an insurer could 

provide to an insured absent a request for additional coverage by 

the insured. This modification of the statute reflects a 

legislative determination that the maximum amount set forth in 

the statute is sufficient to protect those insureds who may be 

legally entitled to recover against an uninsured motorist.

Id. at 739 (citations omitted). Despite our explanation of the meaning of 

SDCL 58-11-9, we relied solely on the language of the insurance policy in 

determining that stacking was not allowed. Id. at 739. We stated: 

[The insurer limited] its liability in clear and unambiguous 

terms. In both policies, [the insurer] specifically stated: 

The limit of liability shown in the Declarations for “each 

person” for Uninsured Motorist Coverage is our maximum 

limit of liability for all damages for bodily injury 

sustained by any one person in any one accident. 

(Emphasis added). The limit of liability for uninsured motorist 

coverage is the same on each declaration sheet, that is, $100,000 

per person. Thus, the clear import of the “limit of liability” 

clause in each policy is that [the insurer] will not provide 

 (continued . . .) 
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_____________________ 

(. . . continued) 

at 739-40. Therefore, to the extent that language in our prior opinions may be read 

to suggest that SDCL 58-11-9 establishes a public policy which precludes recovery 

in excess of the mandated amount of coverage, the prior language should not be 

interpreted as such and is not controlling.

[¶13.] Westphal remains the controlling case regarding the type of stacking at 

issue here. Phen, 2003 SD 133, ¶¶28, 37-38, 672 NW2d at 59, 61 (Zinter, J., 

concurring). There we held that stacking of UM benefits for two different vehicles 

insured by two different policies was not precluded by statute. Id. ¶¶20-22, 672 

NW2d at 58-59. Unless the parties have clearly and unambiguously limited such 

stacking by contract, it is not precluded. 

[¶14.] In the evolution of our stacking jurisprudence, the language of the 

individual policies was an important factor. In this case, however, AMCO does not 

rely upon its policy provisions. AMCO clearly points out in its brief that it is not

uninsured motorist benefits in an amount exceeding $100,000 

per person for damages sustained in any one accident involving 

an uninsured motorist, irrespective of the vehicles covered or 

policies issued to [the insured] by [the insurer]. The clear 

meaning of this limiting language should be given effect 

considering the fact that [the insured] satisfied the apparent 

policy of the legislature by providing Stanage with the 

maximum amount of uninsured motorist coverage as set forth by 

the statute.

Id. at 739-40 (footnote omitted). Thus, we reasoned that because the insurer 

provided the amount of UM coverage dictated by SDCL 58-11-9, it satisfied 

the purpose of that statute and was “free to limit its total liability to that 

maximum amount in a subsequent policy issued to the same insured.” Id. at 

739. 
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attempting to avoid liability based on policy language in either the “other 

insurance” or UM coverage portions of the policy. In fact, the summary judgment 

motion makes no mention of the contract between the insured and insurer. AMCO 

relies strictly on the language of SDCL 58-11-9 and urges this Court to hold that the 

statutory language, in and of itself, limits stacking of UM coverage to the statutory 

amount of $100,000/$300,000. We decline to do so. We have clearly stated that the 

statutory amounts are only limiting if the insurer has stated the limits “in clear and 

unambiguous terms.” Union, 454 NW2d at 738 (emphasis added). Whether or not 

AMCO’s policy with Hocketts contains clear and unambiguous terms of limitation is 

not before this Court, nor was it argued to the trial court as part of the summary 

judgment motion. We agree with the trial court that Westphal and Phen allow the 

stacking here, and we hold that the limits for UM coverage established in SDCL 58-

11-9 do not per se prohibit stacking UM coverage in excess of the statutory amount. 

[¶15.] Affirmed. 

[¶16.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, 

Justices, concur. 

[¶17.] ZINTER, Justice, concurs specially. 

ZINTER, Justice (concurring specially). 

[¶18.] I fully concur in the Court’s opinion. I write only to emphasize that 

this Court’s opinions in Westphal, 87 SD 404, 209 NW2d 555; Union, 454 NW2d 

736; and Phen, 2003 SD 133, ¶¶28-41, 672 NW2d 52, 59-62 (Zinter, J., concurring 

in result), only considered whether certain UM policy limitations were prohibited 
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by SDCL 58-11-9, the statute mandating UM coverage. However, policy limitations 

are concededly not at issue in this case. Therefore, the language of my concurring 

opinion in Phen should not be used to suggest that SDCL 58-11-9 precludes 

stacking when an insurer does not rely upon a policy limitation.