CHAPTER 3-22
LIABILITY COVERAGE PROGRAM FOR PUBLIC ENTITIES
3-22-1 Public entity pool for liability established--Coverage provided--Effect on certain claims and defenses.
3-22-2 Definition of terms.
3-22-3 3-22-3, 3-22-4. Repealed by SL 1995, ch 323 (Ex Ord 95-7), § 17.
3-22-5 Bureau of Human Resources and Administration powers.
3-22-5.1 3-22-5.1. Repealed by SL 1995, ch 323 (Ex Ord 95-7), § 17.
3-22-6 Promulgation of rules.
3-22-7 Payment of covered claims--Employee not liable for covered claim in excess of coverage--Subrogation.
3-22-8 3-22-8 to 3-22-10. Repealed by SL 2010, ch 24, §§ 6 to 8.
3-22-11 Disposition or payment of claims.
3-22-12 Fund created--Expenditures--Investment--Purchase of annuity in settlement of claim.
3-22-13 3-22-13 to 3-22-14. Repealed by SL 2010, ch 24, §§ 10 to 12.
3-22-15 3-22-15. Repealed by SL 1995, ch 323 (Ex Ord 95-7), § 17.
3-22-16 Coverage year.
3-22-17 Suits against state authorized only to extent coverage provided in coverage document.
3-22-18 Liability pool not to be considered insurance or insurance company.
3-22-19 3-22-19. Repealed by SL 1986, ch 413, § 20.
3-22-20 Federal antitrust laws--Direct state action.
3-22-21 Immunity of judicial officers and agents--Payment of legal costs.
3-22-22 3-22-22 to 3-22-25. Repealed by SL 2010, ch 24, §§ 15 to 18.
3-22-26 3-22-26. Repealed by SL 1987, ch 40, § 11.
3-22-27 Pool arrangement.
3-22-1. Public entity pool for liability established--Coverage provided--Effect on certain claims and defenses.
There is hereby established the South Dakota public entity pool for liability effective March 1, 1987. PEPL shall provide defense and liability coverage for any state entity or employee as provided for within the coverage document issued by PEPL. Nothing in this chapter may be construed to require payment of a particular claim or class of claims, to create any cause of action, nor to waive or limit any immunity or legal defense otherwise available to any covered claim. Punitive damages may not be recovered pursuant to this chapter. No claim for indemnity or contribution by the United States, arising directly or indirectly from the acts or omissions of the South Dakota National Guard, its agents, officers, members, or employees, which is cognizable under the Federal Tort Claims Act may be prosecuted under this chapter.
Source: SL 1986, ch 413, § 1; SL 1993, ch 46; SL 2010, ch 24, § 1.
3-22-2. Definition of terms.
Terms used in this chapter mean:
(1) "PEPL," the public entity pool for liability established pursuant to this chapter;
(2) "Bureau," the Bureau of Human Resources and Administration;
(3) "Covered claim," a claim or civil action arising in tort from the operation of a motor vehicle, a ministerial act, or another act for which coverage is provided under the PEPL coverage document;
(4) "Coverage document," the written agreement between the director and the Governor setting forth the terms, conditions, limits, and scope of coverage provided by PEPL for a covered claim;
(5) "Director," the director of PEPL appointed by the commissioner of human resources and administration pursuant to this chapter;
(6) "Employee," any permanent or temporary employee or elected or appointed officer of any state entity whether compensated or not;
(7) "Fund," the public entity pool for liability fund established pursuant to this chapter; and
(8) "State entity," the State of South Dakota and all of its branches, agencies, boards and commissions.
Source: SL 1986, ch 413, § 2; SL 1987, ch 40, § 1; SL 1995, ch 323 (Ex. Ord. 95-7), §§ 17, 18; SL 2010, ch 24, § 2; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
3-22-5. Bureau of Human Resources and Administration powers.
The bureau may:
(1) Select a director who shall serve at the pleasure of the bureau;
(2) Enter contracts for actuarial determinations, claims adjustment and investigation, loss control and risk management, legal services, or other services the director determines to be necessary to carry out the purposes of this chapter;
(3) Enter contracts for insurance and reinsurance the director determines to be necessary to carry out the purposes of this chapter. Any such contract is not subject to the provisions of chapters 5-18A and 5-18-D;
(4) Develop a coverage document, agreed to by the director and the Governor, to establish the type and scope of covered claims, limits of coverage, terms and conditions of coverage, and costs of coverage; and
(5) Based on annual actuarial calculations, impose and collect contributions from covered state entities for the estimated amount necessary to extend coverage and maintain appropriate reserves for covered claims.
Source: SL 1986, ch 413, § 5; SL 1987, ch 40, § 2; SL 2010, ch 24, § 3; SL 2013, ch 24, § 1; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
3-22-6. Promulgation of rules.
The bureau may, pursuant to chapter 1-26, establish rules for:
(1) Submission, reporting, handling, and payment of claims;
(2) Implementation of risk management and loss control practices;
(3) Rates and timing of contributions by state entities for coverage;
(4) Collection and reporting of data regarding claims; and
(5) Other procedures necessary for operation of PEPL.
Source: SL 1986, ch 413, § 6; SL 2010, ch 24, § 4.
3-22-7. Payment of covered claims--Employee not liable for covered claim in excess of coverage--Subrogation.
PEPL may pay a covered claim established by judgment or negotiated settlement as provided in the coverage document and which is not barred or avoidable through sovereign immunity or other substantive law. No employee is subject to personal liability for any covered claim in excess of the coverage provided by PEPL. The PEPL shall be fully subrogated to any right of recovery a state entity or employee may be entitled to, associated with any claim paid pursuant to this section.
Source: SL 1986, ch 413, § 7; SL 1987, ch 40, § 5; SL 2010, ch 24, § 5.
3-22-11. Disposition or payment of claims.
The director, at the director's sole discretion, may determine the disposition or payment amount of any covered claim. However, the director shall consult with the attorney general prior to entering a negotiated settlement of any civil action arising from a covered claim.
Source: SL 1986, ch 413, § 11; SL 2010, ch 24, § 9.
3-22-12. Fund created--Expenditures--Investment--Purchase of annuity in settlement of claim.
There is hereby created on March 1, 1987, the public entity pool for liability fund to be used to pay claims pursuant to this chapter and the personal services and operating expenses for the management and operation of the PEPL. Any money in the fund shall be continuously appropriated and expenditures shall be made on warrants drawn by the state auditor on vouchers approved by the director and commissioner of human resources and administration. The money in the fund shall be invested by the State Investment Council and the fund shall retain the interest earned. If the bureau determines to purchase an annuity in settlement of a claim, it may purchase an annuity approved by the State Investment Council.
Source: SL 1986, ch 413, § 13; SL 1995, ch 316, § 18; SL 2024, ch 1 (Ex. Ord. 24-1), § 34, eff. Apr. 8, 2024.
3-22-16. Coverage year.
The PEPL coverage year shall be July first through June thirtieth.
Source: SL 1986, ch 413, § 17.
3-22-17. Suits against state authorized only to extent coverage provided in coverage document.
Pursuant to S.D. Const., Art. III, § 27, suits against the state are authorized only for a covered claim to the extent coverage is provided in the coverage document. Nothing in this chapter may be construed to otherwise waive or abrogate any immunity or defense available to any state entity or employee.
Source: SL 1986, ch 413, § 18; SL 2010, ch 24, § 13.
3-22-18. Liability pool not to be considered insurance or insurance company.
The PEPL does not constitute insurance nor may it be considered an insurance company under the laws of South Dakota nor is the PEPL under the jurisdiction of the commissioner of insurance.
Source: SL 1986, ch 413, § 19.
3-22-20. Federal antitrust laws--Direct state action.
This chapter is intended as direct state action within the meaning of federal antitrust laws.
Source: SL 1986, ch 413, § 21; SL 2010, ch 24, § 14.
3-22-21. Immunity of judicial officers and agents--Payment of legal costs.
Nothing in this chapter may be construed to remove or waive the immunity of judicial officers or agents in the performance of their duties. The fund shall, however, provide legal services, if requested by the Supreme Court, to defend judicial officers or agents should they be sued in any court for official acts in the performance of their duties. The payment of legal costs shall in no way be construed as a waiver of judicial immunity.
Source: SL 1986, ch 413, § 22.
