author: GILBERTSON, Chief Justice. MEIERHENRY, Justice

text:
    2005 SD 30
    Michael GLOE, Plaintiff and Appellee, v. UNION INSURANCE COMPANY, Defendant and Appellant.
    No. 23144.
    Supreme Court of South Dakota.
    Argued Oct. 6, 2004.
    Decided March 2, 2005.

      Nancy J. Turbak, Watertown, SD, for plaintiff and appellee.
    Paul H. Linde of Schaffer Law Office, Sioux Falls, SD, for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Michael Gloe’s parents were struck and killed by an automobile driven by Donald Huber. Gloe did not reside in his parents’ household, nor was he physically present at or injured as a result of the accident. Gloe and his two siblings received a total of $125,000 for the wrongful death claims arising from their father’s death and $125,000 for their mother’s death from two insurers who provided liability coverage for the accident. Gloe sought underinsurance benefits under his parents’ Union policy. The trial court entered a declaratory judgment in favor of Gloe, holding Gloe was legally entitled to recover wrongful death damages from the operator and the owner of an underinsured motor vehicle because of the death of his parents. The trial court concluded Union was obligated to pay Gloe for his damages subject to the applicable limit of the under-insured motorist coverage. The trial court held Union’s UIM limit of liability was to be determined by subtracting the amount of liability insurance proceeds received by Gloe after allocation among all wrongful death beneficiaries, rather than the entire amount paid by the liability carriers on behalf of the tortfeasor. Reversed.

FACTS AND PROCEDURE

[¶ 2.] For purposes of the declaratory action, Gloe and Union stipulated and agreed to the following facts: On September 1, 2001, pedestrians Larry and Verna Mae Gloe were struck and killed by a van driven by Donald Huber in Watertown, South Dakota. Each of the three surviving adult children, Scott Gloe, Karen Nelson, and Michael Gloe, asserted wrongful death claims against the van driver for the deaths of Larry and Verna Mae. In exchange for the release of all claims against Huber and the owner of the van arising from the deaths, two liability insurers together paid a total of $125,000 to the personal representative of Larry and $125,000 to the personal representative of Verna Mae for the wrongful death claims filed by their personal representative. .The settlements exhausted the liability coverage available under the two policies. The three adult children were the statutory beneficiaries entitled to those wrongful death proceeds. Each child received $41,583 for the death of their father and $40,611 for the death of their mother. The estates released the tortfeasor as a part of the settlement.

[¶3.] Gloe brought this claim for un-derinsured motorist (UIM) benefits against Union, his parents’ insurance carrier. This action was brought in Gloe’s individual capacity, rather than by the personal representative of his parents’ estates on behalf of the statutory beneficiaries. The Union policy provided UIM coverage with limits of $100,000 per person and $300,000 per occurrence. Gloe conceded that the $41,583 he received for the wrongful death of his father and the $40,611 he received for the wrongful death of his mother were proper liability coverage amounts to setoff from the $100,000 UIM per person limit.

[¶4.] Union denied Gloe’s claim maintaining that no UIM benefits were available to Gloe under his parents’ insurance contract, as a single $100,000 per person limit applied to Larry’s death, and another $100,000 per person limit applied to Verna Mae’s death. Union further argued that both SDCL 58-11-9.5 and the contract language allowed Union to setoff the entire $125,000 of liability proceeds paid on behalf of the tortfeasor to Verna Mae’s personal representative against the single $100,000 per person UIM coverage limit available as a result of her death. Union argued the same single per person limit and setoff applied to the coverage for Larry’s death. Under Union’s approach, UIM coverage would be exhausted and no payment would result.

[¶ 5.] The trial court entered a declaratory judgment in favor of Gloe, holding Gloe was an insured under the policy language, and was legally entitled to recover wrongful death damages from the operator of the underinsured motor vehicle due to the deaths of his parents. The trial court concluded Union was obligated to pay Gloe for his damages subject to the applicable per person UIM limit of $100,000. The trial court also held Union’s limit of liability was to be determined by subtracting the amount of liability proceeds received by Gloe, rather than by subtracting the total amount of liability insurance paid on behalf of the tortfeasor for each death.

[¶ 6.] Union appealed two issues:

1. Whether the trial court erred when it determined that under South Dakota statutes UIM benefits were available after the amount paid by the liability insurance carriers on behalf of the tortfeasor exceeded the limits of Union’s underinsured motorist coverage.
2. Whether the trial court erred when it held UIM benefits were available to Michael Gloe under the language of Union’s policy.

STANDARD OF REVIEW

[¶ 7.] Under SDCL 21-24-13, a declaratory judgment is reviewed by this Court as we would any other judgment or order. Nelson v. Farmers Mut. Ins. Co. of Nebraska, 2004 SD 86, ¶ 5, 684 N.W.2d 74, 76 (citing SDCL 21-24-13; Parks v. Cooper, 2004 SD 27, ¶ 20, 676 N.W.2d 823, 828-29). The trial court’s interpretation and application of relevant statutes are reviewed under the de novo standard, and given no deference by this Court. West-field Ins. Co., Inc. v. Rowe, 2001 SD 87, ¶ 4, 631 N.W.2d 175, 176 (citing Maryott v. First Nat’l, Bank of Eden, 2001 SD 43, ¶ 17, 624 N.W.2d 96, 102).

[¶ 8.] We use statutory construction to discover the true intent of the legislature in enacting the law, which is ascertained primarily from the language used in the statute. State v. Myrl & Roy’s Paving, Inc., 2004 SD 98, ¶ 6, 686 N.W.2d 651, 653-54 (citing Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). We confine ourselves to the language used by the legislature in order to determine what the legislature said, rather than what the courts think it should have said. Id. In doing so, we must attempt to give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject. State v. 1-90 Truck Haven Service, Inc., 2003 SD 51, ¶ 3, 662 N.W.2d 288, 290 (citing Martinmaas, 2000 SD 85, ¶ 49, 612 N.W.2d at 611).

[¶ 9.] In addition, “[w]hen interpreting insurance contracts, we have uniformly held them renewable as a matter of law under the de novo standard.” Opperman v. Heritage Mut. Ins. Co., 1997 SD 85, ¶ 3, 566 N.W.2d 487, 489 (citing DeSmet Ins. Co. v. Gibson, 1996 SD 102, ¶ 5, 552 N.W.2d 98, 99) (citations omitted). “This includes determining whether an insurance contract is ambiguous.” Id. (citing Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 616 (S.D.1994)).

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the trial court erred when it determined that under South Dakota statutes UIM benefits were available after the amount paid by liability insurance carriers on behalf of the tortfeasor exceeded the limits of Union’s un-derinsured motorist coverage.

[¶ 11.] Under SDCL 58-11-9.4, automobile insurance providers are required to furnish UIM coverage in their policies. Nelson, 2004 SD 86, ¶ 8, 684 N.W.2d 74, 77. SDCL 58-11-9.4 provides in relevant part:

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.

[¶ 12.] The purpose of the UIM statutory scheme is to provide protection to insured motorists against underinsured motorists. Farmland Ins. Companies of Des Moines, Iowa v. Heitmann, 498 N.W.2d 620, 624 (S.D.1993) (citing Union Ins. Co. v. Stanage, 454 N.W.2d 736, 739 (S.D.1990)). The UIM statutory scheme reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect insured motorists from underinsured motorist, as the clear intent of the legislature was to limit the amount recovered under UIM to those máximums absent a request for additional coverage. Id. at 625; Union Ins. Co., 454 N.W.2d at 739.

[¶ 13.] The language of the UIM statutory scheme further limits recovery to the difference between the payments made by the liability carriers of the tortfeasor and the UIM per person and per accident limits. SDCL 58-11-9.5; Nickerson v. American States Ins., 2000 SD 121, ¶ 18, 616 N.W.2d 468, 472-73. The goal of the statutory scheme is to ensure that a recovery is made by an insured who incurs bodily injury of at the very least, an amount equal to the statutory UIM coverage limits. Id. ¶ 15. “[T]he insured who contracts for UIM coverage is contracting for the assurance that he will be able to recover, at a minimum, an amount equal to the UIM coverage.” Id. (holding to do “otherwise would be to force the UIM carrier to be contractually liable to indemnify its insured for the coverage amount regardless of the amount recovered from the tortfeasorf.]”).

[¶ 14.] We have referred to SDCL 58-11-9.5 as a “difference of the limits” statute. Farmland Ins. Companies of Des Moines, Iowa, 498 N.W.2d at 625. SDCL 58-11-9.5 provides:

Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon. Coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.

(emphasis added).

[¶ 15.] Under the statutory scheme, we compare the limits of the UIM coverage with the amount paid by the liability carrier. Westfield Ins. Co., Inc., 2001 SD 87, ¶ 8, 631 N.W.2d at 177-78 (citing Friesz v. Farm & City Ins., 2000 SD 152, ¶ 11, 619 N.W.2d 677, 680; Nickerson, 2000 SD 121, ¶ 16, 616 N.W.2d at 472; Great West Cas. Co. v. Hovaldt, 1999 SD 150, ¶ 11, 603 N.W.2d 198, 201; Farmland Ins. Companies of Des Moines, Iowa, 498 N.W.2d at 624). If the amount paid by the liability carrier on behalf of the tort-feasor “equals or exceeds the limits of the UIM coverage, no UIM benefits are payable.” Id. The South Dakota statutory scheme prohibits a double recovery, and will not permit an insured to collect UIM benefits without first deducting the amount paid by the tortfeasor’s liability carrier. Nickerson, 2000 SD 121, ¶ 16, 616 N.W.2d at 472 (citing Great West Cas. Co., 1999 SD 150, ¶ 10, 603 N.W.2d at 201). The exception to this rule is when two or more insureds incur separate bodily injuries as a result of one motor vehicle accident. Winters v. Northwestern Nat. Cas. Co., 838 F.Supp. 440, 444 (D.S.D.1993); Westfield Ins. Co., Inc., 2001 SD 87, ¶ 9, 631 N.W.2d at 178. In such cases, the liability proceeds paid by the tortfeasor’s liability carrier for insured A’s injuries are used to determine the difference of the limit only for insured A, while the liability proceeds paid by the tortfeasor’s liability carrier for insured B’s injuries are used only to determine the difference of the limit for insured B. See Id.; Winters, 838 F.Supp. at 442-43.

[¶ 16.] We held in Westfield that the language of SDCL 58-11-9.5 does not prohibit UIM recovery by two claimants standing side-by-side, when the claimants are both named insureds and the policy language permits it. Id. ¶ 9, 631 N.W.2d at 178. We noted the language of the statute implies “that the ‘difference of the limits’ standard applies individually to each party entitled to recover.” Id. However, in that case both parties were entitled to recover because both incurred bodily injury in the accident. Id. ¶ 2, 631 N.W.2d at 176.

[¶ 17.] Similarly in Winters, a motorist and his passenger each incurred bodily injury while riding in the same car as a result of the negligence of another motorist. 838 F.Supp. at 441. Each victim received $200,000 in liability proceeds from the tortfeasor’s liability carriers, but each victim had uncompensated damages above that amount. Id. at 442. Both victims had separate insurance policies under which they sought to make UIM claims, with UIM coverage limits of $300,000. Id. at 441. The UIM insurer for the owner of the car in which the victims were riding attempted to setoff the entire $400,000 in liability proceeds paid to both victims, by aggregating the $200,000 each received on behalf of the tortfeasor as one amount. Id. at 442-43. The insurer argued that the liability proceeds of $400,000 for the entire accident were in excess of its $300,000 per accident limit, and therefore the tortfeasor was not underinsured and no UIM recovery was available. Id.

[¶ 18.] The Winters court held that each victim was entitled to a separately calculated setoff and a separate per person limit rather than a single per accident limit and a jointly calculated setoff. Id. at 444. The- driver’s setoff included only the $200,000 in proceeds paid by the tortfea-sors’ liability carriers for the driver’s injuries, and the passenger’s setoff included only the $200,000 in liability proceeds paid by the tortfeasors’ liability carriers for passenger’s injuries. Id. Under this interpretation, that court reasoned each victim would receive the maximum UIM recovery intended by the legislature, the difference between the limits of the tortfeasor’s liability coverage and the amount each victim contracted to receive under their respective policies. Id. The end result, $100,000 in UIM coverage was available to each insured who incurred bodily injury under their respective policies. Id.

[¶ 19.] In the instant case, only Verna Mae and Larry incurred bodily injury or death as a result of the motor vehicle accident. There is no dispute between the parties that only one per person limit of $100,000 in UIM coverage is available for the death of Verna Mae, and a separate per person limit of $100,000 in UIM coverage is available for the death of Larry. Both parties also agree that because no other bodily injury or death occurred, the remaining balance of the $300,000 per accident limit is unavailable.

[¶ 20.] Verna Mae and Larry each contracted to receive a $100,000 UIM per person limit less the statutory setoff of the amount paid “by the liability insurer of the party recovered against ” as a consequence of their deaths. However, no claim for UIM benefits has been made by the personal representative of Verna Mae and Larry under a wrongful death action. If such claims were made by the personal representative, the mandatory setoff would result in no UIM benefits payable, as the liability carriers have paid $125,000 for each decedent to the three Gloe children, who would also be the beneficiaries in a wrongful death action, an amount sufficient to setoff the entire $100,000 of UIM coverage contracted for by the decedents.

[¶ 21.] Union argues the trial court erred when it held the proper setoff amount should include only the portion of the liability proceeds ultimately received by Gloe, rather than all the liability proceeds paid on behalf of the tortfeasor. Union argues that the statutory language in SDCL 58-11-9.5 results in a setoff of the entire amount paid “by the liability insurer of the party recovered against.” Union’s argument focuses on the lack of a bodily injury to Gloe, whose right of recovery is based on his status as a statutory beneficiary under South Dakota’s wrongful death statute.

[¶22.] Gloe, however, argues that the language of the SDCL 58-11-9.5 is unclear as it fails to adequately define the mandatory setoff. Gloe argues that while the language does require a deduction of “the amount paid by the liability insurer,” it fails to specify to whom the amounts have to have been paid in order to be relevant for purposes of the setoff. Gloe argues that under Westfield and Winters, he is required to setoff only the $41,583 he received for the wrongful death of Larry and the $40,611 he received for the wrongful death of Verna Mae, instead of the full amount paid by the liability carriers for the wrongful deaths. Gloe advances an argument that he should be required to setoff only those amounts paid to him as a statutory beneficiary, because he has suffered an individual legal injury as a result of the motor vehicle accident and no other insured has made a UIM claim.

[¶ 23.] Gloe argues this Court should look to the intent behind the UIM statutory scheme for support for the proposition that Gloe should have to deduct only the liability proceeds received by him in calculating the setoff. Gloe’s argument hinges on one statement in Winters, 838 F.Supp. at 443, taken out of context, where that court noted the legislative intent of SDCL 58-11-9.5 is to provide “an insured with maximum coverage.”

[¶24.] The intent of the UIM statutory scheme is not to provide an insured with maximum coverage, but rather to protect insured motorists from underin-sured motorists by requiring that insurers pay the insured the maximum UIM recovery intended by the legislature. Nickerson, 2000 SD 121, ¶ 15, 616 N.W.2d at 471 (citing Stanage, 454 N.W.2d at 739). That maximum recovery being the difference between the limits of the tortfeasor’s liability coverage and the statutory $100,000/ $300,000 UIM limits, or the amount in excess of the statutory limits an injured insured motorist contracted to receive under his or her insurance policy. Id.

[¶ 25.] Thus, Gloe’s argument fails under the language in SDCL 58 — 11— 9.5. An UIM carrier is entitled to a one time setoff of all liability proceeds paid by the tortfeasor’s liability carriers. SDCL 58-11-9.5. We assume “statutes mean what they say and that legislators have said what they meant.” Farmland Ins. Companies of Des Moines, Iowa, 498 N.W.2d at 624-625 (citing In re Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984) (citing Crescent Electric Supply Co. v. Nerison, 89 S.D. 203, 210, 232 N.W.2d 76, 80 (S.D.1975))).

[¶ 26.] In this case the amount against which to setoff the liability proceeds is the $100,000 of UIM coverage available for the wrongful death of Verna Mae and the $100,000 of UIM coverage available for the wrongful death Larry. If we allow Gloe to reduce the setoff to just that portion of the liability proceeds he received, Union is unable to deduct the full balance of the liability proceeds paid by the tortfeasor’s liability insurers as permitted under SDCL 58-11-9.5.

[¶ 27.] Furthermore, Verna Mae and Larry’s statutory beneficiaries received $125,000 in liability proceeds paid by the tortfeasor’s liability carriers. Union is therefore entitled to deduct the entire $125,000 in wrongful death damages paid by the tortfeasor’s liability carriers from the $100,000 in UIM coverage available for the wrongful death of Verna Mae, and to do the same with regard to Larry. Once the statutory deduction permitted under SDCL 58-11-9.5 is applied, the statutory beneficiaries have received more in liability proceeds than is available in UIM coverage. Therefore, under the facts of this case, UIM coverage is exhausted and no UIM coverage is available under the decedents’ policy against which Gloe may make his additional, individual claim.

[¶ 28.] 2. Whether the trial court erred when it held UIM benefits were available to Michael Gloe under the language of Union’s policy.

[¶ 29.] SDCL 58-11-9.5 provides that an insurer’s duty to pay UIM benefits is “[s]ubject to the terms and conditions of such underinsured motorist coverage.... ” In order to ascertain the terms and conditions of a contract, we must examine the contract as a whole and give words their “plain and ordinary meaning.” Elrod v. General Cas. Co. of Wisconsin, 1997 SD 90, ¶ 15, 566 N.W.2d 482, 486 (citing Alverson v. Northwestern Nat’l. Cas. Co., 1997 SD 9, ¶ 8, 559 N.W.2d 234, 236 (quoting St. Paul Fire & Marine Ins. Co. v. Schilling, 520 N.W.2d 884, 887 (S.D.1994))). We will not resort to a forced construction of the language in a contract for the purpose of either limiting or extending coverage. Farm & City Ins. v. Estate of Davis, 2001 SD 71, ¶ 6, 629 N.W.2d 586, 587 (citing Prokop v. North Star Mut. Ins. Co., 457 N.W.2d 862, 864 (S.D.1990) (quoting Cheney v. Metropolitan Life Ins. Co., 370 N.W.2d 569, 573 (S.D.1985))).

[¶ 30.] Language in an insurance contract is ambiguous when it “is fairly susceptible to two constructions.” National Sun Industries, Inc. v. South Dakota Farm Bureau Ins. Co., 1999 SD 63, ¶ 18, 596 N.W.2d 45, 48 (citing Economic Aero Club v. Avemco Ins. Co., 540 N.W.2d 644, 645 (S.D.1995) (quoting American Family Mut. Ins. v. Elliot, 523 N.W.2d 100, 102 (S.D.1994))). Ambiguity will not be created merely by one party offering a different interpretation of the contract language. Alverson, 1997 SD 9, ¶ 8, 559 N.W.2d at 235-36 (citing Johnson v. Johnson, 291 N.W.2d 776, 778-79 (S.D.1980)). Ambiguity is “determined with reference to the policy as a whole and the plain meaning and effect of its words.” National Sun, 1999 SD 63, ¶ 18, 596 N.W.2d at 48. We will not seek out a “strained or unusual meaning for the benefit of the insured.” Id. (citing Alverson, 1997 SD 9, ¶ 8, 559 N.W.2d at 235).

[¶ 31.] The contract language at issue included in the endorsement for UIM coverage provided in relevant part:

INSURING AGREEMENT
B. ‘Insured’ as used in this endorsement means:
1. You or any ‘family member’.
2. Any other person ‘occupying’ ‘your covered auto’.
3. Any person for damages that person is entitled to recover because of ‘bodily injury1 to which this coverage applies sustained by a person described in 1. or 2. above.
LIMIT OF LIABILITY
A. The limit of liability shown in the Schedule for each person for Underin-sured Motorists Coverage is our maximum limit of liability for all damages for care, loss of services or death, arising out of “bodily injury” sustained by any one person in any one accident. Subject to this limit for each person, the limit of liability shown in the Schedule or in the Declarations for each accident for Underin-sured Motorists Coverage is our maximum limit of liability for all damages for “bodily injury” resulting from any one accident. This is the most we will pay regardless of the number of:
1. “Insureds”
2. Claims made;
3. Vehicles or premiums shown in the Declarations; or
4. Vehicles involved in the accident.
B. The limit of liability shall be reduced by all sums paid because of the “bodily injury” by or on behalf of persons or organizations who may be legally responsible.

(emphasis added).

[¶ 32.] The policy endorsement reflecting amendments to the policy language specific to South Dakota included the following definition for an underinsured motor vehicle:

VI. Underinsured Motorists Coverage Endorsement
A. The definition of “underinsured motor vehicle”:
“Underinsured motor vehicle” means a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but the amount paid for “bodily injury” under that bond or policy to an “insured” is not enough to pay the full amount the “insured” is legally entitled to recover as damages,

(emphasis added).

[¶ 33.] Union contends that Gloe’s legal entitlement to UIM proceeds is made possible as a result of Gloe’s status as a statutory beneficiary under SDCL 21-5-5. As such, Gloe’s claim arises from the deaths of Larry and Verna Mae, as do any potential future claims to UIM proceeds by Scott and Karen. Therefore, Gloe’s claim must be subject to the setoff equal to all sums paid “because of the [deaths]” of Verna Mae and Larry by or on behalf of the tortfeasor legally responsible for their deaths as provided in section B of the contract. Union’s contention results in a deduction of the full $125,000 of liability proceeds received from the tortfeasor’s liability carriers as a result of the deaths of Verna Mae and Larry. Under this scenario, UIM benefits are exhausted and Gloe is unable to recover any UIM proceeds.

[¶ 34.] Gloe argues that the language in section B under Limit of Liability is ambiguous when read in conjunction with the definition of an underinsured motor vehicle under section VI. A. Gloe concedes that section B defines the setoff as “all sums paid ... by or on behalf of persons ... who may be legally responsible.” Gloe maintains that this contract language is as unclear as the statutory language in failing to identify to whom the amounts have to have been paid in order to be relevant for purposes of the setoff. See supra ¶22. Gloe further argues that the language in the definition of an underinsured motorist contained in section VI. A, “but the amount paid for ‘bodily injury’ under that bond or policy to an ‘insured’ is not enough to pay the full amount the ‘insured’ is legally entitled to recover as damages,” supplies the missing identifier and alters Union’s limit of liability so that the setoff includes only those amounts paid to the insured.

[¶ 35.] Gloe emphasizes that it is the definition of an underinsured motor vehicle that creates ambiguity with regard to the proper setoff amount. That language defines an underinsured motor vehicle as one where “the amount paid for ‘bodily injury’ under that bond or policy to an ‘insured’ is not enough to pay the full amount the ‘insured’ is. legally entitled to recover as damages.” Gloe argues that the language in the definition section, when read together with the language in the limit of liability section, creates ambiguity by providing two different methods of calculating the setoff amount. Gloe attempts to create ambiguity by offering a different interpretation of the contract language. Gloe borrows language from the definition section that defines when another motorist is driving an underinsured motor vehicle, and then uses that language to calculate the setoff amount rather than the language used in the Limit of Liability section.

[¶ 36.] Gloe’s argument fails under a plain reading of the contract language. The definition section identifies what conditions must exist so that a person who is legally responsible for the injuries to the insureds may be considered an underin-sured motorist, that is what conditions must exist to trigger UIM coverage. The limit of liability section then determines how much in UIM benefits will be forthcoming to an insured once UIM coverage is triggered. Each section serves a different purpose and when read together do not create ambiguity under their respective plain meanings.

[¶ 37.] Under the language of the contract, Union has reserved the right to a one time setoff of all liability proceeds “paid by or on behalf of the tortfeasor.” There is no language in the contract whereby Union limits its setoff amount to only those proceeds received by an insured.

[¶ 38.] The dissent does not find ambiguity within the contract language, but nonetheless would hold that the proper setoff is the amount received by Gloe rather than the entire $125,000 in liability proceeds paid by the tortfeasor’s liability carriers. The dissent acknowledges, as does the Court, that Gloe’s status as an insured arises under the third definition. The dissent states “[s]ince the contract is between the company and the insureds, the logical interpretation is that the sums must be paid to the company’s insured before it can be offset.” Supra ¶ 52 (emphasis added).

[¶ 39.] However, what the dissent fails to recognize is that Gloe is an insured only by virtue of his status as a wrongful death beneficiary under the third definition in the policy language. The contract was between Union and Verna Mae and Larry, not between Union and Gloe. If the dissent’s logic is followed with the understanding that the contract belonged to Verna Mae and Larry rather than Gloe, then the proper setoff is “the sums paid to the company’s insured,” that is the $125,000 in liability proceeds paid to the personal representative of Verna Mae and Larry because of their deaths. Therefore, the setoff is not limited in this ease to the amounts paid to Gloe individually by the personal representative of his parents’ estates.

[¶40.] The dissent also suggests that the fact that the other two siblings, Karen and Scott, did not make claims under their parents’ policy is irrelevant to the outcome of this litigation. The dissent does acknowledge that if all three siblings had made claims, then and only then would the sums paid to each sibling be aggregated into one setoff.

[¶ 41.] We have previously held that the amount recoverable under UIM coverage is not a matter of timing. Farmland Ins. Companies of Des Moines, Iowa, 498 N.W.2d at 625 (holding the insured cannot force his UIM carrier to pay the full UIM coverage amount by claiming the liability proceeds cannot not be used as a setoff under SDCL 58-11-9.5 until the tortfeasor’s liability carrier actually makes payment) (citing Helmbolt v. LeMars Mut. Ins. Co., Inc., 404 N.W.2d 55, 59-60 (S.D.1987) (holding an insurer cannot delay payment of UIM proceeds by requiring a judgment of liability against the tortfeasor as a precondition to payment of UIM proceeds)). We cannot allow insureds to defeat the mandatory setoff under SDCL 58-11-9.5 by timing their claims, and forcing the insurer to calculate the statutory setoff separately for each insured.

[¶ 42.] Despite the fact that the issue was not before the Court, the dissent erroneously theorizes that the aggregated payments received by the siblings would be offset against the $300,000 per accident limit, not the $100,000 per person limit. This is a proposition that Gloe himself has stated in his brief, and repeatedly at oral argument, is incorrect and not permissible under current South Dakota law. The language of the policy makes it clear that the $100,000 limit is the maximum the insurer will pay “for all damages for care, loss of services or death, arising out of ‘bodily injury’ sustained by any one person in any one accident.” If we were to follow the dissent’s logic on this issue, we would effectively overrule Rogers, 520 N.W.2d 614, which does not permit the recovery to exceed a contractually imposed single per person limit of liability when bodily injury or death has been suffered by only one insured, regardless of the number of claims or insureds making claims because of the single bodily injury or death suffered by one insured.

[¶ 43.] We hold the correct setoff amount in this case is that amount paid by the tortfeasor’s liability carriers because of the death incurred by the insureds Verna Mae and Larry. The amount against which to setoff the liability proceeds is the $100,000 in UIM coverage available for Verna Mae and the $100,000 in UIM coverage available for Larry. For each of the decedents, the amount paid by the tortfea-sor’s liability carriers because of the insureds’ deaths exceeds the available UIM coverage. Therefore, no UIM benefits are payable under the contract.

[¶ 44.] Reversed.

[¶ 45.] KONENKAMP and ZINTER, Justices, concur.

[¶ 46.] SABERS and MEIERHENRY, Justices, dissent.

MEIERHENRY, Justice

(dissenting).

[¶ 47.] I respectfully dissent.

Statutory Provisions

[¶ 48.] The language of SDCL 58 — 11— 9.5 does not allow an insurance carrier to aggregate the total amount paid to third parties by or on behalf of the tortfeasor as an offset for amounts owed to its own individual insured. The language of the statute is as follows:

Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon. Coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.

Id.

[¶ 49.] The first sentence of the statute requires the insurance company to pay its own insured, in this case Michael Gloe, uncompensated damages for the death of his parents. The second sentence then limits the coverage “to the underinsured motorist coverage limits on the vehicle of the party recovering.” Here, the limit is $100,000 for the damages sustained by each insured, and $300,000 for the damages resulting from each accident. The statute further allows the recovery to be reduced by “the amount paid by the liability insurer of the party recovered against.” It is the application of this last clause of the statute where I disagree with the majority opinion. This clause relates to the general subject of the statute defining the duty of the insurance company to its own insured. The public policy embodied in this legislation is that if a person is injured by an insured motorist but is not fully compensated for his injuries, his own insurance company will pay him up to $100,000. It would be contrary to public policy for us to allow the insurance company to avoid its agreement by reducing the amount it owes to its own insured with money that the tortfeasor’s company paid to other individuals.

[¶ 50.] The trial court correctly applied the statute by allowing Union to reduce the amount it owed to Michael Gloe only by the amount the insured motorist’s company had paid to Michael Gloe. Aggregating all sums paid by the insured motorist’s company was not allowed. Therefore, only those amounts paid by the tortfeasor’s insurance company to Michael Gloe individually, i.e. $41,583 for father’s death and $40,611 for mother’s death, were allowed as a setoff against the $100,000 coverage for each corresponding death claim.

Insurance Policy Provisions

[¶ 51.] The statute defines the relationship between the insurance company and its insured. The language of the insurance policy does also. The insurance policy includes an endorsement specific to the South Dakota law. The policy language limits its liability to $100,000 “for each person for Underinsured Motorists Coverage ... for damages for care, loss of services or death, arising out of ‘bodily injury’ sustained by any one person in any one accident” and $300,000 for one accident. The policy clarifies further that “[t]his is the most [it] will pay regardless of the number of: 1. ‘Insureds’; 2. Claims made; 3. Vehicles or premiums shown in the Declarations; or 4. Vehicles involved in the accident.” In this case, only one insured claims under the policy. No amount has been paid to anyone under Union’s policy.

[¶ 52.] Union’s policy also provides for a setoff against the liability limits. It provides: “The limit of liability shall be reduced by all sums paid because of “bodily injury” [i.e. death] by or on behalf of persons or organizations who may be legally responsible.” The majority relies heavily on this portion of the contract to conclude that sums paid to third parties by those legally responsible can be aggregated as a setoff to what it owes its own insured. Yet the language of the contract does not say this. Much like the statutory language, it does not specify to whom the sums must be paid before the offset can be taken. Since the contract is between the company and the insureds, the logical interpretation is that the sums must be paid to the company’s insured before it can be offset.

[¶ 53.] In this case, the injured insured parties were the.deceased Gloes’ children individually. However, only Michael made a claim under his parent’s policy. The injured parties and only persons legally entitled to recover for the deaths in this case were the children. Neither the decedents nor their estates received anything from the wrongful death claim. Michael received only a portion of the proceeds. Logically, only what he has received should offset his claim, not the entire amount paid in the wrongful death settlement. Although the other siblings may have been insureds under the policy, they have not made claims to Union. Consequently, the amounts they received have no bearing on Michael Gloe’s individual claim under this policy. Had the other siblings made claims under this policy, it would be appropriate to aggregate the sums paid to all of them as a setoff against the $300,000 per accident limit. Such is not the case before us.

Conclusion

[¶ 54.] The underlying policy of the un-derinsurance law is to provide an injured person up to $100,000 for uncompensated damages. The Gloes paid premiums for this coverage. To allow Union to offset its only claim with money paid to third parties by or on behalf of the tortfeasor is contrary to public policy and the language of Union’s policy and effectively leaves the insured without the coverage purchased.

[¶ 55.] I would affirm the trial court.

[¶ 56.] SABERS, Justice, joins this dissent.

      . In our decision in Gloe v. Iowa Mut. Ins. Co., 2005 SD 29, 694 N.W.2d 238, (Gloe II) we held South Dakota statutes do not require an insurer to provide underinsured coverage for damages arising from the bodily injury or death of a third person.

      . We considered this same accident originally in Nelson v. Farmers Mut. Ins. Co. of Nebraska, 2004 SD 86, 684 N.W.2d 74. Karen Nelson’s underinsured claim was made in her individual capacity, and was not contested by her insurer. Farmers Mutual. Id. ¶ 2. Therefore we only interpreted the extent of Farmers Mutual’s underinsured limits. Id.

      . Hereinafter the $125,00 in liability payments paid by the Huber's liability carrier and the van owner's liability carrier will be referenced as payment by the "tortfeasor’s liability carriers.”

      . Two insurers provided liability coverage for the accident. American Family Insurance Company insured the owner of the van with a liability limit of $25,000, and Farmer's Insur-anee Group insured the driver of the van with a liability limit of $100,000.

      . In rendering our decision in Nelson, 2004 SD 86, 684 N.W.2d 74, the amount of UIM coverage available under Nelson's policy was $100,000. The portion of the $125,000 liability insurance proceeds she received was set off against that amount. Unlike the instant case, the insurer in Nelson did not contest the use of only the liability insurance proceeds received by Nelson as the set off amount.

      . In the recently released opinion in In re Estate of Howe, this Court held the personal representative of the estate must bring wrongful death tort claims on behalf of all statutory beneficiaries under SDCL 21-5-5. 2004 SD 118, 689 N.W.2d 22. However, both In re Estate of Howe and the case that it interpreted, Sander v. Geib, Elston, Frost Prof'l Ass’n, 506 N.W.2d 107 (S.D.1993), involved wrongful death actions against a tortfeasor. The present case is a declaratory action in contract, not a wrongful death action in tort.

      . In Westfield Ins. Co., Inc., v. Rowe, the personal representative of two deceased named insureds made claims against the tortfeasor’s liability carrier and received $750,000 in total, or $375,000 for each estate. 2001 SD 87, ¶ 3, 631 N.W.2d 175, 176. However, the two named insureds both incurred bodily injury, that is death, as a result of the tortfeasor’s negligence. Id. ¶ 2. The personal representative then made a claim against the decedents’ underinsured motorist coverage. Id. ¶ 3. The policy provided a single limit of $500,000 per accident rather than differentiating between a “per person” and “per accident” limit. Id. The policy language controlled and only one recovery under the per accident limit was permitted. Id. ¶ 11, 631 N.W.2d at 179.

      . “Bodily injury” was defined under the policy as “bodily harm, sickness or disease, including death that results.”

      . SDCL 21-5-5 provides:
      Every action for wrongful death shall be for the exclusive benefit of the wife or husband and children, or if there be neither of them, then of the parents and next of kin of the person whose death shall be so caused; and it shall be brought in the name of the personal representative of the deceased person.

      . Union does not dispute Gloe's status as a beneficiary under the third definition in the policy.

      . The trial court determined that Michael Gloe was to receive two per person $100,000 limits, one for each deceased parent. Union Mutual does not raise on appeal the issue of whether Michael is entitled to make a claim for each death or whether he is limited to one claim for both.

      . This interpretation would not necessarily overrule Rogers as the majority claims. See Supra ¶ 42. Rogers did not involve a wrongful death claim, the unique nature of which has given rise to this dispute, and is therefore easily distinguishable from the case at hand. Additionally, this interpretation of the statutes eliminates the majority's concern that timing the claim can defeat the setoff. Since there are three injured wrongful death beneficiaries, there is still $100,000 available to each after their claims are aggregated and setoff against the $300,000 per accident limit. For this reason, there is no danger that the timing of the claims will result in increased recovery. Whether the claims are made individually and independently, or all at the same time, each injured wrongful death beneficiary would have $100,000 available, subject to a setoff of the amount each insured beneficiary has already received.


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2005 SD 33
    Linda S. SORENSEN Revocable Trust, Linda S. Sorensen, and Nels J. Sorensen, Trustees, and Nels J. Sorensen, Individually, Petitioners and Appellants, v. Gerald SOMMERVOLD, Ralph Westergaard, Les Kephart, Mary Jensen, and Bill Willroth, Sr., as Commissioners for the County of Clay, State of South Dakota; and Clay County, South Dakota, a South Dakota political subdivision, Respondents and Appellees.
    No. 23305.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 15, 2005.
    Decided March 9, 2005.

      Thomas E. Alberts, Avon, for petitioners and appellants.
    Tami Maroney Bern, Clay County State’s Attorney, Vermillion, for respondents and appellees.
   ZINTER, Justice.

[¶ 1.] Landowners applied for a writ of mandamus to compel County to install a 24 inch culvert in or near a certain location under a roadway to permit the natural flow of surface waters and to prevent flooding of their land. The circuit court granted County’s motion for judgment on the pleadings and motion to dismiss for failure to state a claim upon which relief could be granted. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[¶ 2.] Clay County, South Dakota, recently modified an existing roadway. Sor-ensens own property on both sides of the newly constructed road. In rebuilding the new roadway, County replaced a “T” intersection with a curved road. According to Sorensens, the previous intersection had a 24 inch culvert, “which permitted water to continue in the natural course of drainage.” Sorensens allege that the new road intersects the general course of natural drainage and that County has refused to reinstall the 24 inch culvert, causing flooding and irreparable damage to their land.

[¶ 3.] Following County’s denial of Sor-ensens’ request to reinstall the culvert, Sorensens filed an application for a writ of mandamus. They requested an order compelling the County to reinstall the 24 inch culvert and modify the road to permit the natural flow of water. County answered, moved for judgment on the pleadings, and moved to dismiss for failure to state a claim. The trial court granted County’s motions. Sorensens appeal.

Analysis and Decision

[¶ 4.] A trial court’s dismissal for failure to state a claim under SDCL 15 — 6— 12(b)(5) is reviewed de novo. Fenske Media Corp. v. Banta Corp., 2004 SD 23, ¶ 7, 676 N.W.2d 390, 392 (citations omitted). When reviewing the sufficiency of a claim, “the [C]ourt must accept the material allegations as true and construe them in a light most favorable to the pleader and determine whether the allegations allow relief on ‘any possible theory.’ ” Id. (citation omitted). Judgment on the pleadings is a “remedy to test the legal sufficiency, substance, and form of pleadings.” Hauck v. Bull, 79 S.D. 242, 244, 110 N.W.2d 506, 507 (1961). A judgment on the pleadings is only appropriate where there are no issues of fact and only issues of law are to be resolved. Id. (citation omitted).

[¶ 5.] Sorensens’ pleadings allege that the modified road “changes the general course of natural drainage and causes water to inundate upon [their] land.” To rectify the situation, Sorensens sought an order specifically requiring the County to reinstall a 24 inch culvert in the new highway in approximately the same location. Sorensens also generally requested the County to do the work necessary to permit the natural flow of water in the general course of drainage.

[¶ 6.] The purpose of a writ of mandamus is “to compel the performance of an act which the law specially enjoins as a duty resulting from an office.... ” SDCL 21-29-1.

The writ of mandamus may be issued by the Supreme and circuit courts, to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; ....

Id. A party may obtain mandamus only if the petitioner can show that they have a “clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty.” Willoughby v. Grim, 1998 SD 68, ¶ 7, 581 N.W.2d 165, 168 (citations omitted). Because a writ of mandamus is only granted under exceptional circumstances, entitlement must also be indisputable and clear. Id. (citations omitted).

[¶ 7.] County concedes that SDCL 31-12-26 and 31-14-2 “clearly impose a duty on counties to maintain roads, bridges, and culverts.” County, however, asserts that the manner in which this duty is performed “is within the sound discretion of [C]ounty and not subject to mandamus relief.” County also denies that the modified road prevents drainage.

[¶ 8.] In discussing a township’s analogous duties, we have stated that because “a road may alter the natural flow of surface water, townships are obliged to reasonably accommodate the area’s natural drainage.” Knodel v. Kassel Tp., 1998 SD 73, ¶ 14, 581 N.W.2d 504, 509. In fact, the duty with respect to natural drainage is quite specific:

[I]t is the duty of highway authorities to place openings in highway grades so as to permit surface water to escape in its natural course from the higher to the lower lands.... [A]n injunction will lie to restrain highway officials from so improving a highway as to divert water from its course of natural drainage and cause it to flow upon [a property owner’s] land in an unusual and unnatural manner.

Id. ¶ 11 (internal citations omitted).

[¶ 9.] Whether mandamus is available to enforce this drainage duty is dependent on whether the act sought to be compelled is discretionary or ministerial. Willoughby, 1998 SD 68, ¶ 8, 581 N.W.2d at 168. Mandamus may only be used to compel ministerial duties, not discretionary duties. Id. (citations omitted). Therefore, to the extent that a county’s general duty to maintain roads (and drainage) is ministerial, mandamus may be used to compel that duty. Matters v. Custer County, 538 N.W.2d 533, 535 (S.D.1995). However, how a road (or drainage) will be maintained or repaired is discretionary, and therefore, mandamus cannot compel performance in any particular manner. Willoughby, 1998 SD 68, ¶¶ 10-11, 581 N.W.2d at 168-169. In other words, when public officials have a mandatory duty to perform, but have discretion in how they can perform that duty, mandamus may require performance, “but may not dictate the details.” Id. (citing Musselman v. Governor, 448 Mich. 503, 533 N.W.2d 237, 245 (1995)).

[¶ 10.] In Willoughby, the petitioners seeking a writ of mandamus lived at the end of a gravel township highway. After it rained, the road would turn into gumbo, and mud from the surrounding hills would fill the ditches, plug the culverts, and make the road nearly impassable. The trial court issued a writ ordering the township to remedy the problem in certain specific ways. This Court concluded that the trial court was correct in issuing the writ, but incorrect in ordering how the road should be repaired, because that latter order was beyond the scope of mandamus.

[¶ 11.] In this case, we conclude that the duty of a county to permit surface water to escape in its natural course is ministerial in nature and may be compelled by mandamus. However, how the County decides to permit the drainage is discretionary in nature and may not be enforced by mandamus. Therefore, this petition states a claim for relief to the extent that it seeks County to perform its general duty. However, the petition fails to state a claim to the extent it seeks to require the specific act of installing a 24 inch culvert in the approximate location of the previous culvert. Furthermore, there are issues of fact in existence concerning the actual drainage and flooding that preclude a judgment on the pleadings.

[¶ 12.] Therefore, we hold that the trial court correctly dismissed that portion of the application seeking to have a 24 inch culvert installed in a certain location; i.e.:

Sorensen .. .makes this Application for a Writ of Mandamus to compel Clay County, South Dakota, and its Commissioners, to install a 24 inch in diameter culvert ... as constructed in generally the same location as the 24 inch in diameter culvert existed in the old public highway prior to its removal....

However, we hold that the trial court erred in dismissing that portion of the application seeking to have the County perform its general duty to permit surface waters to escape through their natural course so as to prevent damage to Soren-sens’ land. Sorensens may proceed on that portion of the application alleging:

The construction of the new public highway ... acts as a dike or dam and prevents the natural drainage of water ... and causes Petitioners’ land to be flooded and inundated and causes irreparable harm to Petitioners’ land.
Clay County’s construction of the new public highway, .. .will deprive Petitioners of the use of Petitioner’s land as a result of the flooding. Flooding will occur ... and said flooding will continue to occur....

WHEREFORE, Petitioner prays that this Court issue a Writ of Mandamus as provided by South Dakota State statutes requiring Clay County, South Dakota, and its Commissioners to:

.. .make any and all modifications necessary ... to permit the water to flow in its general course of natural drainage from the north to the south and southeasterly direction ....

[¶ 13.] Affirmed in part, reversed in part and remanded.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . SDCL 31-12-26 provides:
      Each board of county commissioners and county superintendent of highways in organized counties shall construct, repair, and maintain all secondary roads within the counties not included in any municipality, organized civil township, or county road district organized pursuant to chapter 31-12A.

      . SDCL 31-14-2 provides:
      The duty to construct and maintain all bridges and culverts throughout the county, except upon the state trunk highway system, is hereby imposed upon the board of county commissioners, subject to conditions relating to bridges and culverts on secondary highways in townships.


author: PER CURIAM.

text:
    2005 SD 32
    STATE of South Dakota, Plaintiff and Appellee, v. Leigh PATTEN, Defendant and Appellant.
    No. 23200.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2005.
    Decided March 9, 2005.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Pierre, for plaintiff and appellee.
    John R. Murphy, Rapid City, for defendant and appellant.
   PER CURIAM.

[¶ 1.] Leigh Patten appeals her misdemeanor conviction for obstructing a law enforcement officer contending she was deprived of the assistance of counsel. We reverse.

FACTS

[¶ 2.] On December 28, 2003, Butte County law enforcement responded to a call that Patten’s sheep were on a county road. The sheep had been caught in a ground blizzard and several were trapped in a snow bank while others used the snow bank to escape the confines of their pasture. There were approximately 150 sheep on the roadway. Determining that the sheep were in trouble, and being unable to reach Patten, the sheriff decided to seize the sheep and transport them to a stockyard.

[¶ 3.] The sheep were corralled and loaded into trucks with the assistance of local ranchers. Patten was eventually reached and she arrived at the scene as the remaining sheep were being loaded. Patten told those loading the sheep to “stop stealing my sheep.” The sheriff advised her they were being seized for their own protection because they were without shelter. Patten attempted to move the loaded sheep from the trailer and also prevented others from being loaded. She was told to stop her activities three times. Patten refused. She was arrested for obstructing a law enforcement officer.

[¶ 4.] Patten was indicted by a grand jury and arraigned on February 9, 2004. Patten appeared at the arraignment without an attorney. The trial court informed her that she had the right to counsel, a trial by jury, to confront and examine witnesses and she could not be forced to testify against herself. The court also inquired if Patten had an attorney. She indicated she did not have counsel but desired to be represented. She requested a court appointed attorney. The trial court directed Patten to make an application for court appointed counsel but forewarned her that he probably would not grant the request if she owned an interest in real estate.

[¶ 5.] Patten completed an application for a court appointed attorney. That application indicated she lived on social security and her total income for the prior year was $3,176.40. She also indicated she was a ten percent shareholder in a family farm corporation that held seven hundred forty acres of land. She valued the worth of this interest along with her other assets, including her watch and wedding ring, as $1,000. The trial court responded in a letter dated February 18, 2004, and denied the request for counsel. The letter indicated “I do not believe you are indigent as you own an interest in real estate in Butte County.”

[¶ 6.] On March 5, 2004, only three days before trial, Patten appeared pro se at a motion to quash hearing concerning subpoenas she had requested. The trial court did not inquire as to her legal representation. On March 8, 2004, Patten appeared for trial. The trial court again did not address the issue of her legal representation. Patten represented herself during the jury trial and she was convicted.

[¶ 7.] Patten appeals her conviction contending she was denied her right to counsel. State concedes that Patten was not informed of the dangers of proceeding pro se and she did not validly waive her right to counsel. Consequently, the State also urges reversal of the judgment of conviction.

ANALYSIS

ISSUE

[¶ 8.] Whether Patten’s lack of representation by counsel, in the absence of a valid waiver, created reversible error in the proceeding below.

[¶ 9.] “The defendant in a criminal action has both a constitutional right to be represented by counsel and a constitutional right to represent [her]self, whichever [s]he chooses.” State v. Van Sickle, 411 N.W.2d 665, 666 (S.D.1987). However, before permitting a defendant to represent herself, trial courts must obtain a knowing and intelligent waiver of the right to counsel. Id.

A defendant must be aware of the dangers and disadvantages of self-representation. On appeal, waiver of the right to counsel will not be found knowingly and intelligently made unless the trial court (1)warns the defendant of the dangers of self-representation or, (2) unless the record indicates circumstances from which this court can find the defendant was aware of the danger and made a knowing and intelligent waiver. While in some cases there may be a record showing a defendant is aware of the pitfalls of self-representation, an admonition from the trial court is preferred as it eliminates any doubt.

Id. at 667.

[¶ 10.] “[A] defendant’s request to represent [herself] must be unequivocal in nature.” State v. Chamley, 1997 SD 107, ¶ 35, 568 N.W.2d 607, 618. A defendant is presumed not to have waived her right to counsel in the absence of a knowing, intelligent and voluntary waiver. State v. Raymond, 1997 SD 59, ¶ 9, 563 N.W.2d 823, 825. The court should make the defendant “aware of the pitfalls of self-representation, so that the record will establish that [she] knows what [she] is doing and [her] choice is made with eyes open.” Id. ¶ 11 (citing Adams v. United States, 317 U.S. 269, 279, 63 S.Ct. 236, 242, 87 L.Ed. 268, 275 (1942)). To meet this requirement, this Court has suggested that trial courts warn a defendant:

(1) presenting a defense is not a simple matter of telling one’s story, but requires adherence to various technical rules governing the conduct of a trial;
(2) a lawyer has substantial experience and training in trial procedure and that the prosecution will be represented by an experienced attorney;
(3) a person unfamiliar with legal procedures may allow the prosecutor an advantage by failing to make objections to inadmissible evidence, may not make effective use of such rights as the voir dire of jurors, and may make tactical decisions that produce unintended consequences;
(4) a defendant proceeding pro se will not be allowed to complain on appeal about the competency of [her] representation; and
(5) the effectiveness of [her] defense may well be diminished by [her] dual role as attorney and accused.

Van Sickle, 411 N.W.2d at 666-67 (quoting R. LaFave, Criminal Procedure § 11.5 (1984)). The trial court did not provide these advisements to Patten nor does the record establish Patten was otherwise advised of the perils of proceeding pro se.

[¶ 11.] This case is similar to State v. Bruch, 1997 SD 74, 565 N.W.2d 789, wherein this Court reversed when the trial court did not advise Bruch of the dangers of proceeding pro se and the record did not indicate any interest by the defendant in proceeding without counsel. Here, there was no admonition from the trial court concerning the dangers of proceeding pro se. Patten also made no affirmative request to represent herself. On the contrary, she unequivocally requested the assistance of court appointed counsel but that request was denied. Additionally, the record does not demonstrate that Patten was independently aware of the pitfalls of proceeding without counsel. It is also important to note concerning the request for court appointed counsel that it appears from the record the trial court denied Patten’s request for counsel on the sole basis that she owned an interest in real estate. However, “[i]ndigence should be considered upon a case by case basis. Indigence should be considered without resort to artificially pre-determined financial standards or guidelines.” State v. Dale, 439 N.W.2d 112, 115 (S.D.1989).

[¶ 12.] On this record, it appears the trial court considered the matter of Patten’s representation settled with the denial of court appointed counsel. The trial court did not inquire further and Patten was required to appear pro se without the requisite waiver and the circumstances did not indicate she was aware of the disadvantages and dangers of self-representation.

[¶ 13.] Reversed.

[¶ 14.] GILBERTSON, Chief Justice, SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . Patten also contends that the trial court erred in allowing an eleven person jury and that she was denied due process of law in the proceeding below. Because we reverse the conviction based on the denial of counsel it is not necessary to address these issues.

      . SDCL 23A-40-6.1 provides for assigned counsel when a person can be deprived of their liberty and when the person is charged with a class 2 misdemeanor or a greater offense. This was a class 1 misdemeanor punishable by one year in prison and a $1,000 fine. SDCL 22-11-6.


author: GIENAPP, Circuit J. ZINTER, Justice GILBERTSON, Chief Justice

text:
    2005 SD 35
    Robert OWENS, Employee and Appellant, v. F.E.M. ELECTRIC ASSOCIATION, INC., Employer, and Federated Rural Electric Insurance Corp., Insurer and Appellee.
    No. 23155.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 4, 2004.
    Decided March 9, 2005.
    Rehearing Denied April 14, 2005.

      Chet Groseclose, Sioux Falls, Robert M. Ronayne of Ronayne and Wein, Aberdeen, for employee and appellant.
    R. Alan Peterson and Nicole Nachtigal Emerson of Lynn, Jackson, Shultz & Le-brun, Sioux Falls, for insurer and appellee.
   GIENAPP, Circuit J.

[¶ 1.] Robert Owens (Owens) appeals the circuit court’s affirmance of a summary judgment granted by a South Dakota Department of Labor (DOL) Administrative Law Judge (ALJ). The ALJ ruled that Owens’ claim for workers compensation coverage was time barred by the two year statute of limitations prescribed by SDCL 62-7-35 and that Owens had not suffered a change of condition under SDCL 62-7-33. We affirm.

FACTS

[¶ 2.] On October 16, 1998, Owens was employed as a line foreman by FEM Electric Association (FEM) when he was injured in a one vehicle accident while returning from a service call. Owens experienced intense pain and suffered injuries to his left shoulder as a result of the accident. Owens also testified that he suffered lower back pain immediately following the accident but there was no diagnosis or treatment for back pain until May 1999. Owens timely filed his first report of injury with his employer. Owens received medical treatment for his shoulder injury from Dr. Mark Harlow and by March 1999 his shoulder had recovered sufficiently to allow Owens to return to work. During this time, Federated Rural Electric Insurance Corp. (Federated), FEM’s insurer, paid $13,-840.21 in medical and hospital bills on Owens’ behalf as a result of his accident and shoulder problems. Owens returned to work as a lineman with FEM in March 1999 and resumed his previous job duties, including climbing poles and pulling and tying line, with no complaints.

[¶ 3.] On May 5, 1999, Owens collapsed to the floor after getting out of bed because his leg could not support him. After seeing two doctors about leg and back pain, Owens filed a first report of injury with his employer. This first report of injury was dated May 26, 1999. Although this claim was given a different claim number by Federated to avoid confusion with the October 1998 injury, it was kept in the same file because of the possible relationship between the two injuries. On June 1, 1999, Federated issued a letter denying the claim for the back injury citing a lack of medical evidence and the fact that the claim did not arise out of a work related injury or accident. The letter also invited Owens to furnish any additional information having a bearing on his claim.

[¶ 4.] On June 25, 1999, Federated informed Owens by letter that it was denying any future claims arising from .the October 1998 accident. The denial was based upon Federated’s finding that the injuries that arose from the October 1998 accident had been resolved leaving no permanency. Federated further informed Owens that under South Dakota law he had two years to request a hearing on his claim with DOL.

[¶ 5.] Owens underwent surgery in August 1999 to repair a herniated disc and was not able to return to his previous position of employment. Owens contended that the back pain he experienced in May 1999 was a result of the October 1998 accident. Owens filed a petition for workers compensation benefits with DOL in February 2002.

STANDARD OF REVIEW

[¶ 6.] The guiding principles in determining whether a grant or denial of summary judgment is appropriate are:

(1) The evidence must be viewed most favorable to the nonmoving party; (2) The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law; (3) Though the purpose of the rule is to secure a just, speedy and inexpensive determination of the action, it was never intended to be used as a substitute for a court trial or for a trial by jury where any genuine issue of material fact exists; (4) A surmise that a party will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them; (5) Summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the mov-ant; and (6) Where, however, no genuine issue of fact exists it is looked upon with favor and is particularly adaptable to expose sham claims and defenses.

Jerauld County v. Huron Regional Medical Center, Inc., 2004 SD 89, ¶ 9, 685 N.W.2d 140, 142 (quoting Dept. of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989)) (citing Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)).

[¶ 7.] This Court conducts a de novo review of summary judgment on statute of limitations issues where there are no disputes regarding genuine issues of material fact and only the application of the law is in question. Sherman v. Sherman, 2000 SD 117, ¶ 8, 616 N.W.2d 393, 394.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 8.] Whether Owens received sufficient notice of the denial of coverage to invoke the two year statute of limitations in SDCL 62-7-35 and time bar his claim.

[¶ 9.] SDCL 62-7-35 provides a two year statute of limitations for workers compensation claims if “the self-insurer or insurer notifies the claimant and the department, in writing, that it intends to deny coverage in whole or in part[.]” On June 25, 1999, Federated notified Owens by letter of its intention to deny any claim for temporary total disability, temporary partial disability, permanent total disability, permanent partial disability, or rehabilitation. The letter went on to state that Federated concluded that it had paid all benefits to which Owens was entitled as a result of the October 1998 accident. This letter gave notice of denial as required by SDCL 62-7-35, and as a consequence, Owens’ claim was time barred due to his failure to request a hearing within the two year statutory period.

[¶ 10.] Owens claims that the three year period of limitations in SDCL 62-7-35.1 applied to his claim. We disagree. This Court has stated that the two limitations periods apply to distinct circumstances:

SDCL 62-7-35 provides the limitations period when an employer gives formal notice that it denies or disputes an employee’s claim, in whole or in part. Employers often accept responsibility for one part of a claim and deny responsibility for another. This statute places a two-year limit on claims that are formally denied. Conversely, SDCL 62-7-35.1 furnishes the limitations period when the employer provides the employee with benefits for a period of time, gives no denial notice, and then the matter lies inactive. In the latter circumstance, the employer has at least implicitly validated the employee’s claim, and the longer three-year period is warranted because the triggering event under SDCL 62-7-35.1 is simply a cessation of benefits without notice of a dispute.

Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 8, 620 N.W.2d 198, 201-02.

[¶ 11.] The claims in this case are that there exists two injuries allegedly caused by one accident that resulted in one claim for injuries arising from the October 1998 accident. Federated approved the portion of the claim relating to the shoulder injury and paid benefits until the injury was resolved and Owens returned to his former duties with FEM. However, finding that the back injury was not work related, Federated denied that portion of the claim. Federated communicated this denial of any further compensation to Owens in its letter of June 25, 1999, rendering SDCL 62-7-35 applicable under the distinction made in Faircloth.

[¶ 12.] Owens argues that because the letter of June 25, 1999 was not specific, he did not know that it was related to his back injury. Therefore, Owens asserts the letter was ineffective in communicating Federated’s intent to deny his claim for the back injury. However, when read as a whole it is apparent that Federated communicated its intent to deny all further claims for injuries resulting from the October 16 accident. Federated told Owens in the June 25 letter that because the injury of October 16 was resolved it was denying any further claims from that accident and would not pay any additional benefits arising from it. Furthermore, Federated informed Owens of the two year period within which he could challenge that decision. The letter stated that Federated had paid all benefits to which Owens was entitled. Since Federated had previously denied his claim for the back injury on June 1, Owens was given previous notice as to Federated’s position on that injury. Because Owens alleges that his back injuries were a result of the October 1998 accident, when he was informed by Federated that he would receive no further compensation for that accident other than what Federated had already deemed compensable, he received notice that he had two years to request a hearing on the denial. This notification of 'Federated’s intent to deny further coverage for any claims arising from the October 16 injury satisfied the requirements of SDCL 62-7-35 and was sufficient notice to inform Owens that the two year statute of limitations had begun.

[¶ 13.] The wording of SDCL 62-7-35 does not require that there be specific language in the letter to the employee indicating that the benefits are being denied in whole or in part. As stated in Faircloth, SDCL 62-7-35.1 applies when no denial notice is given. The June 25, 1999, letter gave notice of denial.

[¶ 14.] Additional arguments raised by Owens are without merit. Owens attempts to refute notice of the denial of the claim because 1) Federated assigned two different claim numbers to his two different injuries; and 2) Federated’s June 25 letter was not in strict compliance with SDCL 62-7-35. First, as Roxanne Sewell, Federated’s claim supervisor, testified, the reason for the two claim numbers was simply to avoid confusion in Federated’s office. The two claims were kept in the same file so that whoever was reviewing the claims would know of the relationship between the two injuries. Assigning different claim numbers was merely a record-keeping procedure employed by Federated so that it could handle the shoulder and back injury complaints more efficiently. The existence of the two claim numbers is insufficient to support Owens’ position, particularly when Owens related his back injury to October 16 and Federated informed him that it was denying any further claims resulting from the October 16 accident. There is nothing in the record indicating that Owens in any way relied to his prejudice on the fact that there were two files.

[¶ 15.] Owens also claims that case law requires á standard of strict compliance with a statutory workers compensation scheme. See Invie v. Control Data Corp., 311 Minn. 164, 247 N.W.2d 425 (Minn.1976); Cibor v. Fabricon Products Company, 379 Mich. 229, 150 N.W.2d 769 (1967); Belton v. Traynor, 381 F.2d 82 (4th Cir.1967). These cases are unpersuasive. All of these cases deal not with notice to the claimant, but notice to the appropriate workers compensation board. These-authorities do not merit departure from the finding, that the June 25 letter supplied sufficient notice to Owens of Federated’s intent to deny all further claims from the October 1998 accident.

[¶ 16.] Owens’ final two arguments challenge the sufficiency of the notice of denial of his claim because Federated was denying disability and not coverage and because Federated continued to pay benefits relating to the shoulder injury after its denial of the back injury claim. A review of the June letters and the transcript of the Sewell deposition reveals the distinction in the treatment of the two injuries by Federated. As of June 25, 1999, Federated was denying disability for the shoulder injury but was honoring its commitment to pay medical expenses related to rehabilitation of the injury. The fact that $271 was paid after June 25, 1999 does not operate as a waiver of the two year limitations period, but rather shows Federated’s commitment to paying claims it had approved. As of June 25, 1999, Federated was reiterating its position of June 1 that it was denying any coverage relating to the back injury because that portion of the claim had not been deemed compensable. Federated was denying further disability for the shoulder injury and denying coverage for the back injury.

ISSUE TWO

[¶ 17.] Whether Owens suffered a change of condition under SDCL 62-7-33 entitling him to reopen his workers compensation claim.

[¶ 18.] SDCL 62-7-33 allows DOL to re-open and modify a workers compensation award “if the department finds that a change in the condition of the employee warrants such action.” (emphasis added). This Court has interpreted a “change in condition” as

ordinarily a change, for better or worse in claimant’s physical condition. This change may take such forms as progression, deterioration, or aggravation of the compensable condition, achievement of disabling character by a previously symptomatic complaint, appearance of new and more serious features, such as discovery of a disc herniation in a back case, failure to recover within the time originally predicted, and superimposition or worsening of a neurotic condition.

Mills v. Spink Elec. Co-op., 442 N.W.2d 243, 246 (S.D.1989) (quoting 3 Larson, The Law of Workmens Compensation, § 81.31(a) (1988)). “Only after a party asserting a ‘change in condition’ has met the required burden may the Department reopen a previous award.” Sopko v. C. & R. Transfer Co., Inc., 1998 SD 8, ¶ 12, 575 N.W.2d 225, 231. “Where a claimant, however, fails to show a change in condition, a final compensation award is res judicata with regard to the condition of the injured employee at the time the award was entered.” Id.

[¶ 19.] While application of SDCL 62-7-33 usually arises where a change in condition occurs after a settlement and release to forego benefits, such a release is not a prerequisite to re-opening a claim. Furthermore, discovery of a herniated disc has been recognized as a change in condition. See Mills, 442 N.W.2d at 246. However, Owens did not satisfy the statutory requirement of demonstrating a change in condition pursuant to SDCL 62-7-33.

[¶ 20.] Assuming, arguendo, that Owens could prove causation, there is no doubt that the herniated disc which manifested itself on May 5, 1999 would have been a change in condition had it occurred after the limitations period had run on his claim for injuries from the October 1998 accident. The proper procedure for Owens would have been to request a hearing for review of Federated’s denial of the portion of his claim relating to his back injury. Allowing application of SDCL 62-7-33 before the two year time limitations period expired would strip the effectiveness of the two year limit on requesting a hearing to review a claim. Because Owens, by his own admission and by the post-surgical reports of Dr. Rak, did not experience a change in condition after June 25, 2001, he did not experience a change in condition under SDCL 62-7-33.

[¶ 21.] Owens’ request for a hearing on Federated’s denial of his claim for back injuries resulting from the October 1998 accident was time barred by the two year statute of limitations in SDCL 62-7-35. SDCL 62-7-33 was inapplicable because Owens did not experience a change in condition after June 25, 2001.

[¶ 22.] Affirmed.

[¶ 23.] GIENAPP, Circuit Judge for SABERS, Justice, disqualified.

[¶24.] KONENKAMP, Justice, concurs and ZINTER, Justice, concurs with writing.

[¶ 25.] GILBERTSON, Chief Justice, and MEIERHENRY, Justice, dissent.

ZINTER, Justice

(concurring).

[¶ 26.] I concur because Owens was not confused by the June 25, 1999 notice indicating that the insurance company had “paid all benefits to which [Owens was] entitled .. .from the October 16, 1998, injury.” He was obviously not confused because in his “first report of injury” dated May 26, 1999 (relating to the May 5, 1999 incident), he specifically indicated that his doctors had told him that the May 5, 1999 incident was possibly related to his October 1998 motor vehicle accident. Moreover, by May 26, 1999, Owens had also consulted with an orthopedist and a rheu-matologist. Owens now concedes that “[b]oth of those doctors gave [him] the impression it was possible that the condition in his back ... might be related to the October, 1998 truck accident.” Owens had to have understood this to be the case because, according to Owens’ brief, Dr. Rak, a neurosurgeon, saw Owens on June 7, 1999, diagnosed a herniated disc, and stated that his “ ‘problem started in October, 1998’ with the truck accident.” Finally, were there any doubt about this issue, Owens’ deposition clearly confirmed that prior to the June 25, 1999 letter, he understood that his back and leg pain were related to the October 1998 truck accident. He testified:

Counsel: Now on May 5th when you crumpled to the floor, you suspected that that was caused by the October 18th, 1998 event, correct?
Owens: Yes.
Counsel: Because you called your employer right away and told them, didn’t you?
Owens: Yes.
Counsel: And you told them you thought this was caused by the motor vehicle accident?
Owens: Yes.

[¶ 27.] Thus, considering Owens’ own admissions, he cannot now claim that the June 25, 1999 letter from the insurer did not reasonably communicate a denial of coverage for the back injuries. Because Owens also failed to demonstrate any change of condition after the May 5, 1999 incident, the statute of limitations barred his most recent claim.

[¶ 28.] KONENKAMP, Justice, joins this writing.

GILBERTSON, Chief Justice

(dissenting).

[¶ 29.] I respectfully dissent. I agree with the Court that we conduct a de novo review of a summary judgment on statute of limitations issues where there are no disputes regarding genuine issues of material fact and only the application of the law is in question. See Trip-Tenn, Inc. v. Schultz, 2003 SD 10, ¶ 7, 656 N.W.2d 747, 750. I also agree that the evidence must be viewed in a light most favorable to the nonmoving party. Supra ¶ 6. Most importantly in this case, I agree that a motion for “[s]ummary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant[.]” Supra.

[¶ 30.] On June 25, 1999, Owens received a letter from FEM purporting to notify him that all further claims for work-related injuries stemming from a truck accident on October 16, 1998, were denied, and that he had only two years in which to file a protest under SDCL 62-7-35. However, the letter dated June 25, 1999, did not reference Owens’ new claim filed on May 26, 1999, for his back injury that manifested itself on May 5,1999. Owens had in his possession a letter pertaining to the May 5, 1999, back injury dated June 1, 1999, that included the following information:

D/A: 5-5-99
Claim # : 40 WC 70620(rs)
“This is to inform you that in view of all the information submitted to us on behalf of your alleged injury of 5-5-99, your claim has been denied.”

In the final paragraph of the letter, Owens was asked to submit any additional information that would have a bearing on the denial in writing to FEM. This Owens did in his petition for workers compensation benefits in February 2002, after having surgery to repair a herniated disc in August 1999.

[¶ 31.] In contrast, the June 25, 1999 letter from FEM to Owens included the following information:

Date of Accident: October 16,1998
Claim No. 40 WC 70560

[¶ 32.] FEM argued that the two different claim numbers were an internal control mechanism to alert their staff that two companion claims existed. However, once FEM released this information to Owens, FEM created the appearance of two separate claims. By failing to include a reference to both claims either by date or by claim number, FEM arguably failed to give Owens notice that his second claim was being denied by the letter dated June 25,1999.

[¶ 33.] It is true that SDCL 62-7-34 only specifies the manner in which a notice must be served, that is in writing and either by registered or certified mail. However, the specific content of such notices must meet some standard of sufficiency, at the very least that of adequacy. Words in our statutory scheme that do not have a specific definition within the code itself “are to be understood in their ordinary sense.” SDCL 2-14-1. Actual notice is defined as “[n]otice given directly to, or received personally by, a party.” BLACK’S LAW DICTIONARY 1087 (7th ed 1999). Due notice, or adequate notice, is defined as “... notice that is legally adequate given the particular circumstance.” Id. 1088. In the context of a pleading, the requirement is fair notice, which is defined as “[s]ufficient notice apprising a litigant of the opposing party’s claim.” Id.

[¶ 34.] A denial of workers compensation benefits is not a pleading in the sense of a complaint or answer filed in a civil suit. However, it does nonetheless attempt to convey to the reader the insurer’s legal position on the workers compensation claim, and give notice of the appropriate statute of limitations for appealing a denial of benefits to which the reader may be legally entitled. Notice must be at the least sufficient to apprise a claimant of the insurer’s or employer’s intent with regard to a particular claim.

[¶ 35.] There exists a genuine issue of material fact, that is, whether FEM gave notice sufficient to bring the second claim for the May 5, 1999 back injury within the two-year statute of limitation in SDCL 62-7-35. Summary judgment was not appropriate in this case. I would remand this case to the Circuit Court for a determination of the facts with regard to the sufficiency of the notice for purposes of invoking the two-year statute of limitations in SDCL 62-7-35, or the three-year statute of limitations in SDCL 62-7-35.1.

[¶ 36.] MEIERHENRY, Justice, joins this dissent.

      . Federated paid approximately $271 in outstanding medical bills after denying any future claims arising out of the October 1998 accident.

      . Owens also received almost $9,000 in temporary disability benefits.

      . The June 1, 1999, letter appears to have been the notification mandated by SDCL 62-6-3.

      . FEM contents that these additional arguments were not addressed in the lower court and as a consequence should not be addressed for the first time on appeal. South Dakota Board of Nursing v. Jones, 1997 SD 78, n. 7, 566 N.W.2d 142, 147. These issues are addressed in this decision even though they were, at best, minimally submitted in the lower court proceedings.

      . Date of Accident.