CHAPTER 58-12

INSURANCE CLAIMS AND BENEFITS

58-12-1    Forms for proof of loss--Furnishing by insurer on request.

58-12-2    Acts of insurer not constituting waiver of policy provision or defense.

58-12-3    Attorney fees--Recovery in action against self-insured employer or insurer failing to pay loss--Other remedies not barred.

58-12-3.1    Separate hearing on attorney fees--Adding to judgment--Time allowed to request hearing.

58-12-4    Life and health insurance--Exemption of benefits and proceeds from execution.

58-12-5    Annuity contract defined.

58-12-6    Exemption of annuity contract benefits, rights, privileges, and options from execution.

58-12-7    Premiums paid on annuity with intent to defraud creditors not exempt from execution.

58-12-8    Maximum amount of annuity exemption--Excess subject to levy.

58-12-9    Application of excess annuities to judgment--Factors considered.

58-12-10    Benefits, rights, privileges, or options nontransferable under annuity contract--Not subject to commutation--Exemption from execution.

58-12-11    Payments under life or health insurance policy or annuity contract discharge insurer.

58-12-12    Use of uniform health insurance claim forms.

58-12-13    Use of claim forms required by federal law excepted.

58-12-14    Promulgation of rules for uniform health insurance claim forms.

58-12-15    Paintless dent repair defined.

58-12-16    Motor vehicle insurer must provide sufficient compensation to restore vehicle to prior condition--Adjustment for paintless dent repair permitted--Conditions.

58-12-17    Compensation when paintless dent repair method inappropriate--Requiring unreasonable travel prohibited--Repair shop as payee only if insured agrees.

58-12-18    Compliance with § 58-12-16.

58-12-19    Clean claim defined.

58-12-20    Time limits for processing clean claims--Time limit for additional information required.

58-12-21    Applicability of §§ 58-12-19 to 58-12-21--Certain policies exempt--No private right of action.

58-12-22    Information from insurer's database to Department of Social Services--Data match against recipients--Disclosure--Liability.

58-12-23    Application for or acceptance of medical assistance paid by department operates as release of information to facilitate coordination of benefits--Request.

58-12-24    Refusal of reimbursement due to manner, form, or date of claim prohibited--Time for submission of claim.

58-12-25    Reimbursement to department for cost of services.

58-12-26    Insurer defined.

58-12-27    Department defined.

58-12-28    Provisions of chapter 1-27 not applicable to insurer records.

58-12-29    58-12-29. Repealed by SL 2007, ch 286, § 4.

58-12-30    Annual reports of commercial property casualty insurance claims--Exception--Promulgation of rules.

58-12-31    Definitions regarding standards for claims processing.

58-12-32    Application of standards for claims investigation and disposition.

58-12-33    Flagrant or frequent violations--Notice and opportunity to correct inadvertent violations.

58-12-34    Acts constituting unfair claims practices.

58-12-35    Notice of hearing.

58-12-36    Cease and desist order--Monetary penalty--Suspension or revocation of license.

58-12-37    Promulgation of rules regarding definitions and records.

58-12-1. Forms for proof of loss--Furnishing by insurer on request.

An insurer shall furnish, upon written request of any person claiming to have a loss under an insurance contract issued by such insurer, forms of proof of loss for completion by such person, but such insurer shall not, by reason of the requirement so to furnish forms, have any responsibility for or with reference to the completion of such proof or the manner of any such completion or attempted completion.

Source: SL 1966, ch 111, ch 22, § 29.

58-12-2. Acts of insurer not constituting waiver of policy provision or defense.

Without limitation of any right or defense of an insurer, none of the following acts by an insurer shall be deemed to constitute a waiver of any provision of a policy or of any defense of the insurer thereunder:

(1)    Acknowledgment of the receipt of notice of loss or claim under the policy;

(2)    Furnishing forms for reporting a loss or claim, for giving information relative thereto, or for making proof of loss or receiving or acknowledging receipt of any such forms or proof completed or uncompleted;

(3)    Investigating any loss or claim under any policy.

Source: SL 1966, ch 111, ch 22, § 30.

58-12-3. Attorney fees--Recovery in action against self-insured employer or insurer failing to pay loss--Other remedies not barred.

In all actions or proceedings hereafter commenced against any employer who is self-insured, or insurance company, including any reciprocal or interinsurance exchange, on any policy or certificate of any type or kind of insurance, if it appears from the evidence that such company or exchange has refused to pay the full amount of such loss, and that such refusal is vexatious or without reasonable cause, the Department of Labor and Regulation, the trial court and the appellate court, shall, if judgment or an award is rendered for plaintiff, allow the plaintiff a reasonable sum as an attorney's fee to be recovered and collected as a part of the costs, provided, however, that when a tender is made by such insurance company, exchange or self-insurer before the commencement of the action or proceeding in which judgment or an award is rendered and the amount recovered is not in excess of such tender, no such costs shall be allowed. The allowance of attorney fees hereunder shall not be construed to bar any other remedy, whether in tort or contract, that an insured may have against the same insurance company or self-insurer arising out of its refusal to pay such loss.

Source: SL 1966, ch 111, ch 32, § 7; SL 1971, ch 264; SL 1972, ch 262; SL 1976, ch 311; SL 1988, ch 397; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

58-12-3.1. Separate hearing on attorney fees--Adding to judgment--Time allowed to request hearing.

The determination of entitlement to an allowance of attorney fees as costs and the amount thereof under § 58-12-3 shall be made by the court or the Department of Labor and Regulation at a separate hearing of record subsequent to the entry of a judgment or award in favor of the person making claim against the insurance company, and, if an allowance is made, the amount thereof shall be inserted in or added to the judgment or award. Such a hearing shall be afforded upon the request of the claimant made within ten days after entry of the judgment or award.

Source: SL 1973, ch 298; SL 2011, ch 1 (Ex. Ord. 11-1), § 33, eff. Apr. 12, 2011.

58-12-4. Life and health insurance--Exemption of benefits and proceeds from execution.

The proceeds of a policy of life or health insurance to the total amount of twenty thousand dollars only, in the absence of any agreement or assignment to the contrary, shall inure to the separate use of the insured, his surviving spouse, or children, as the case may be, independently of the creditors of any of them and shall not be subject to the payment of the debts of any one or all of such persons, notwithstanding that the proceeds may be payable directly to the insured or surviving spouse or children as the named beneficiary or beneficiaries or otherwise; and the proceeds of an endowment policy, payable to the insured on attaining a certain age, to the extent of twenty thousand dollars shall at all times be exempted from the debts of such spouse or children of the insured; and the avails of any life or health insurance or other sum of money not exceeding twenty thousand dollars made payable by any mutual aid or benevolent society to any member or beneficiary spouse or children or both shall likewise be exempt.

Source: SL 1966, ch 111, ch 22, § 31.

58-12-5. Annuity contract defined.

An annuity contract within the meaning of §§ 58-12-6 to 58-12-10, inclusive, shall be any obligation to pay certain sums at stated times, during life or lives, or for a specified term or terms, issued for a valuable consideration, regardless of whether or not such sums are payable to one or more persons, jointly or otherwise but does not include payments under life insurance contracts at stated times during life or lives, or for a specified term or terms.

Source: SL 1966, ch 111, ch 22, § 32 (3).

58-12-6. Exemption of annuity contract benefits, rights, privileges, and options from execution.

The benefits, rights, privileges, and options which under any annuity contract heretofore or hereafter issued are due or prospectively due the annuitant, shall not be subject to execution nor shall the annuitant be compelled to exercise any such rights, powers, or options, nor shall creditors be allowed to interfere with or terminate the contract, except as provided by §§ 58-12-7 to 58-12-9, inclusive.

Source: SL 1966, ch 111, ch 22, § 32 (1).

58-12-7. Premiums paid on annuity with intent to defraud creditors not exempt from execution.

Section 58-12-6 does not apply to amounts paid as premium on any such annuity with the intent to defraud creditors, with interest thereon, and of which the creditor has given the insurer written notice at its home office prior to the making of the payments to the annuitant out of which the creditor seeks to recover. Any such notice shall specify the amount claimed or such facts as will enable the insurer to ascertain such amount, and shall set forth such facts as will enable the insurer to ascertain the annuity contract, the annuitant and the payment sought to be avoided on the ground of fraud.

Source: SL 1966, ch 111, ch 22, § 32 (1) (a).

58-12-8. Maximum amount of annuity exemption--Excess subject to levy.

The total exemption under § 58-12-6 of benefits presently due and payable to any annuitant periodically or at stated times under all annuity contracts under which he is an annuitant, shall not at any time exceed two hundred and fifty dollars per month for the length of time represented by such installments, and such periodic payments in excess of two hundred and fifty dollars per month shall be subject to levy in the manner provided by law and the rules of court.

Source: SL 1966, ch 111, ch 22, § 32 (1) (b).

58-12-9. Application of excess annuities to judgment--Factors considered.

If the total benefits presently due and payable to any annuitant under all annuity contracts under which he is an annuitant, shall at any time exceed payment at the rate of two hundred and fifty dollars per month, then the court may order such annuitant to pay to a judgment creditor or apply on the judgment, in installments, such portion of such excess benefits as to the court may appear just and proper, after due regard for the reasonable requirements of the judgment debtor and his family, if dependent upon him, as well as any payments required to be made by the annuitant to other creditors under prior court orders.

Source: SL 1966, ch 111, ch 22, § 32 (1) (c).

58-12-10. Benefits, rights, privileges, or options nontransferable under annuity contract--Not subject to commutation--Exemption from execution.

If an annuity contract so provides, the benefits, rights, privileges, or options accruing under such contract to a beneficiary or assignee shall not be transferable nor subject to commutation, and if the benefits are payable periodically or at stated times, the same exemptions and exceptions contained in §§ 58-12-6 to 58-12-9, inclusive, for the annuitant, shall apply with respect to such beneficiary or assignee.

Source: SL 1966, ch 111, ch 22, § 32 (2).

58-12-11. Payments under life or health insurance policy or annuity contract discharge insurer.

Whenever the proceeds of or payments under a life or health insurance policy or annuity contract heretofore or hereafter issued become payable in accordance with the terms of such policy or contract, or the exercise of any right or privilege thereunder, payment thereof by the insurer in accordance therewith or in accordance with any written assignment thereof shall fully discharge the insurer from all claims under the policy or contract unless, before payment is made, the insurer has received at its home office written notice by or on behalf of some other person that such other person claims to be entitled to such payment or some interest in the policy or contract.

Source: SL 1966, ch 111, ch 22, § 28.

58-12-12. Use of uniform health insurance claim forms.

The director shall prescribe the use of nationally recognized uniform health insurance claim forms for hospitals and other medical or dental providers and for governmental agencies which shall be used and accepted by all insurers transacting health insurance, providing medical coverage through a personal automobile policy, workers' compensation, or otherwise providing coverage for medical services and by all hospitals and medical providers, and by governmental agencies of the state that require insurance claim forms for their records. The director shall also prescribe the use of nationally recognized uniform explanation of benefit forms by insurers.

Source: SL 1994, ch 381, § 5.

58-12-13. Use of claim forms required by federal law excepted.

An insurer, governmental agency, hospital, or other medical or dental provider does not violate § 58-12-12 by using a claim form or explanation of benefit form which the insurer, governmental agency, hospital, or other medical or dental provider has been required to use by federal law.

Source: SL 1994, ch 381, § 6.

58-12-14. Promulgation of rules for uniform health insurance claim forms.

The director of insurance may, pursuant to chapter 1-26, promulgate rules for the creation, design, implementation, and use of uniform health insurance claim forms and explanation of benefit forms.

Source: SL 1994, ch 381, § 7.

58-12-15. Paintless dent repair defined.

For the purposes of §§ 58-12-15 to 58-12-18, inclusive, paintless dent repair is any auto body repair that removes minor dents by using specifically designed tools to manipulate and flex the metal from the backside of the dent without the necessity of sanding, priming, or painting.

Source: SL 2000, ch 239, § 1.

58-12-16. Motor vehicle insurer must provide sufficient compensation to restore vehicle to prior condition--Adjustment for paintless dent repair permitted--Conditions.

Any insurer providing commercial or personal motor vehicle insurance in this state responsible for repairing a damaged vehicle for which it is liable shall provide sufficient compensation to the insured to restore the vehicle to substantially the same physical condition as prior to the damage, regardless of whether the insured actually chooses to repair the vehicle. The insurer may adjust claims based in whole or in part upon the paintless dent repair method if:

(1)    The damage is such that the paintless dent repair method is likely to place the damaged area or a portion thereof in substantially the same condition as prior to the damage;

(2)    A paintless dent repair shop holding a South Dakota sales tax license is willing to perform the work as estimated within a reasonable time frame in the local market area of the insured; and

(3)    The written estimate provided to the insured prominently discloses the following:

(a)    That the repair estimate is based in whole or in part upon the paintless dent repair method. Each item of damage adjusted using that method shall be identified;

(b)    That paintless dent repair may not be the appropriate repair method for all types of damage;

(c)    That, if the insurer is liable for the damage listed on the estimate, the insurer shall provide sufficient compensation to restore the vehicle to substantially the same physical condition; and

(d)    That for any damage which paintless dent repair is appropriate, the insured may choose not to repair the vehicle or to have the vehicle repaired using a different method of repair. If the insured chooses either of these options, the insurer is liable only for the cost of the paintless dent repair method.

However, if the insurer pays the claim based upon the paintless dent repair method and paintless dent repair was attempted but was unsuccessful, the insurer is liable for any repairs necessary to the area repaired by paintless dent repair, using the conventional method of repair, to restore the vehicle to substantially the same physical condition as prior to the damage.

Source: SL 2000, ch 239, § 2.

58-12-17. Compensation when paintless dent repair method inappropriate--Requiring unreasonable travel prohibited--Repair shop as payee only if insured agrees.

If, for any portion of the vehicle's damage that the insurer has a duty to repair, the paintless dent repair method is inappropriate, the insurer shall compensate the insured for the amount necessary to complete the repairs in the local market area of the insured. The insurer may not require the insured to travel an unreasonable distance to obtain a repair estimate or to have the vehicle repaired. The insurer may not name a repair shop as payee on a compensation check or draft unless agreed to by the insured.

Source: SL 2000, ch 239, § 3.

58-12-18. Compliance with § 58-12-16.

An insurer may comply with § 58-12-16 by entering into an agreement with a repairer that guarantees repairs and by notifying the insured of such an agreement.

Source: SL 2000, ch 239, § 4.

58-12-19. Clean claim defined.

As used in §§ 58-12-19 to 58-12-21, inclusive, the term, clean claim, means a claim for which there is no need for additional information to determine eligibility or adjudicate the claim. The term, clean claim, does not include a claim for payment of expenses incurred during a period of time for which premiums are delinquent, except to the extent otherwise required by law or a claim for which fraud is suspected.

Source: SL 2001, ch 273, § 1.

58-12-20. Time limits for processing clean claims--Time limit for additional information required.

Each clean claim shall be paid to the person entitled thereto, denied, or settled within thirty calendar days after receipt by the carrier if submitted electronically and within forty-five calendar days after receipt by the carrier and if the claim is payable under the plan. If the resolution of an otherwise clean claim requires additional information, the carrier shall, within thirty calendar days after receipt of the claim, give the provider, policyholder, insured, or patient, as appropriate, a full explanation of what additional information is needed in order to determine eligibility or adjudicate the claim. The person receiving a request for additional information shall submit all additional information requested by the carrier within thirty calendar days after receipt of such request.

Source: SL 2001, ch 273, § 2.

58-12-21. Applicability of §§ 58-12-19 to 58-12-21--Certain policies exempt--No private right of action.

Sections 58-12-19 to 58-12-21, inclusive, apply to any health insurer or health maintenance organization that issues health insurance coverage pursuant to chapters 58-17, 58-18, 58-18B, 58-37A, 58-38, 58-39, 58-40, and 58-41. Nothing in §§ 58-12-19 to 58-12-21, inclusive, apply to disability income policies or certificates, accident only, credit health, workers' compensation, long-term care, medicare supplement, automobile medical payment, or other types of health insurance that are not medical expense policies or certificates. Nothing in §§ 58-12-19 to 58-12-21, inclusive, grants a private right of action.

Source: SL 2001, ch 273, § 3.

58-12-22. Information from insurer's database to Department of Social Services--Data match against recipients--Disclosure--Liability.

Within sixty days of a request from the department, the department and an insurer shall negotiate an acceptable format for the transmission of information from the insurer's database of policy holders, sponsors, subscribers, covered individuals in South Dakota, and coverage dates. The format must include the data elements, medium, frequency of reporting, any costs of the insurer to be reimbursed, and procedures that will be followed when a data match is found. The Department of Social Services shall match the name, address, date of birth, and social security number if available, of the insured's policyholders, sponsors, subscribers, and covered individuals against the medicaid eligible recipients and recipients of support enforcement services as defined in subdivision 25-7A-1(19).

Upon discovery of a match, the department may incorporate the following information into its recipient database:

(1)    The name, address, date of birth, social security number if available, and the unique health care identification number of the covered individual;

(2)    The name, address, date of birth, social security number if available, policy number, and group identification number of the policyholder, sponsor, or subscriber;

(3)    The name and address of the employer if it is an employer-employee benefit plan;

(4)    Types of covered services under the plan or policy;

(5)    Coverage effective date and termination of coverage date for each covered individual; and

(6)    The name and address of the claim administrator for the policy or plan.

The department may not use or disclose any information provided by the insurer other than as permitted or required by law. The insurer may not be held liable for the release of insurance coverage information to the department or the director by any party when done so under the authority of §§ 58-12-22 to 58-12-28, inclusive.

Source: SL 2005, ch 263, § 1; SL 2021, ch 210, § 5.

58-12-23. Application for or acceptance of medical assistance paid by department operates as release of information to facilitate coordination of benefits--Request.

Notwithstanding any provision of a policy, plan, contract, or certificate, an insurer shall recognize that an application for medical assistance or acceptance of medical assistance, paid by the Department of Social Services operates as a release of any information kept by the insurer that would facilitate efficient coordination of benefits between the department and the insurer, which may include:

(1)    The name, address, date of birth, social security number if available, and unique health care identification number of the covered individual;

(2)    The name, address, date of birth, social security number if available, policy number, group identification number of the policyholder, sponsor, or subscriber;

(3)    The name and address of the employer if it is an employer-employee benefit plan; types of services covered under the plan or policy; and the name and address of the claims administrator for the policy or plan;

(4)    Previously paid benefits including the name and address of the payee; and

(5)    The name and address of claims processing or administration centers, or both.

Upon written request by the department, the insurer shall provide the requested information in writing within thirty calendar days of receipt of the request.

Source: SL 2005, ch 263, § 2; SL 2007, ch 286, § 1.

58-12-24. Refusal of reimbursement due to manner, form, or date of claim prohibited--Time for submission of claim.

Notwithstanding any provision of a policy, plan, contract, or certificate, no insurer may refuse to reimburse the Department of Social Services for medical assistance paid by the department on the basis of the date of submission of the claim, the type or format of the claim form, or a failure to present proper documentation at the point-of-sale for which reimbursement is sought, if the claim is submitted within three years from the date the item or service was furnished and any action by the department to enforce its rights with respect to such claim is commenced within six years of the department's submission of such claim.

Source: SL 2005, ch 263, § 3; SL 2007, ch 286, § 2.

58-12-25. Reimbursement to department for cost of services.

If the Department of Social Services notifies an insurer that the department has paid for services on behalf of an individual who is covered under an individual, group, or blanket health insurance policy or contract that the insurer issued, delivered, entered into, or renewed in the state, to the extent that the insurer is legally liable, it shall reimburse the department for the cost of the services, regardless of any provision in the health insurance policy or contract that requires payment to the policy holder, subscriber, or another payee. If the insurer, after notice from the department, issues payment to any payee other than the department, the insurer remains liable to the department for the amount of benefits paid to the other party.

Source: SL 2005, ch 263, § 4.

58-12-26. Insurer defined.

For the purposes of §§ 58-12-22 to 58-12-28, inclusive, the term, insurer, means:

(1)    Any commercial insurance company, employer-employee benefit plan, health maintenance organization, professional association, service benefit plan, public self-funded employer or pool, union, or fraternal group selling or otherwise offering individual or group health insurance coverage including self-insured and self-funded plans;

(2)    Any profit or nonprofit prepaid plan offering either medical services of full or partial payment for services included in the department's medicaid plan;

(3)    Any other entity offering health benefits for which a medicaid recipient may be eligible in addition to public medical assistance;

(4)    Any managed care organization, third-party administrator, pharmacy benefits manager, or other entity which processes claims, administers services, or otherwise manages health benefits on behalf of any of the aforementioned insurers; or

(5)    Any other party that is by statute, contract, or agreement, legally responsible for payment of a claim for a health care item or service including workers' compensation, automobile insurance, and liability insurance plans.

Source: SL 2005, ch 263, § 5; SL 2007, ch 286, § 3; SL 2021, ch 210, § 6.

58-12-27. Department defined.

For the purposes of §§ 58-12-22 to 58-12-28, inclusive, the term, department, means the Department of Social Services, or an entity under contract with the Department of Social Services to carry out the functions of §§ 58-12-22 to 58-12-28, inclusive.

Source: SL 2005, ch 263, § 6; SL 2021, ch 210, § 7.

58-12-28. Provisions of chapter 1-27 not applicable to insurer records.

The provisions of chapter 1-27 do not apply to any records the insurer is required to provide to the department.

Source: SL 2005, ch 263, § 7.