58-8-1
Representing or aiding unauthorized insurer as misdemeanor.
58-8-2
Acts which do not constitute representing or aiding unauthorized insurer.
58-8-3
Advertising relating to unauthorized insurers as misdemeanor.
58-8-4
Acceptance of advertising without proof of authority to do business in state as
misdemeanor.
58-8-5
Distribution of advertising matter as to advantages of doing business with unauthorized
insurer as misdemeanor.
58-8-6
Unauthorized insurers--Purposes of Process Act.
58-8-7
Acts by unauthorized insurer constituting appointment of director of insurance as agent for
service of process.
58-8-8
Manner of service of process--Duties of director.
58-8-9
Notice by mail to insurer--Proof of service.
58-8-10
Service of process on agent of unauthorized insurer other than director.
58-8-11
Repealed.
58-8-12
Mode of service of process cumulative.
58-8-13
Conditions precedent to filing of pleadings by unauthorized foreign or alien insurer--Deposit or bond--Procurement of certificate of authority.
58-8-14
Motion of unauthorized foreign or alien insurer to quash or set aside service of process--Deposit or bond not required--Grounds for motion.
58-8-15
Action against unauthorized insurer commenced by substituted process--Postponement by
court to give defendant opportunity to defend.
58-8-16
Vexatious refusal by unauthorized foreign or alien insurer to make payment--Attorney fees
of plaintiff.
58-8-17
Exemptions from unauthorized insurers process provisions.
58-8-18
Uniformity of interpretation of chapter.
58-8-19
Citation of unauthorized insurers process provisions.
58-8-1. Representing or aiding unauthorized insurer as misdemeanor.
No person may in this state, directly or indirectly, act as insurance producer for, or otherwise represent any insurer not then authorized to transact insurance business in this state, in the solicitation, negotiation, or effectuation of insurance or of annuity contracts, inspection of risks, fixing of rates, investigation or adjustment of losses, collection of premiums, or in any other manner in the transaction of insurance business with respect to subjects of insurance resident, located or to be performed in this state. Any violation of this section is a Class 2 misdemeanor.
Source: SL 1966, ch 111, ch 12, § 1 (1); SL 1978, ch 359, § 2; SL 2001, ch 286, § 98.
58-8-2. Acts which do not constitute representing or aiding unauthorized insurer.
Section 58-8-1 shall not apply to:
(1) Acceptance of service of process by the director under § 58-8-8;
(2) Surplus lines insurance, and other transactions as to which a certificate of authority is not required of an insurer as stated in § 58-6-4;
(3) Reinsurance as authorized by chapter 58-14;
(4) The services of an adjuster with respect to claims under policies lawfully solicited, issued and delivered outside South Dakota;
(5) The professional services of an attorney at law.
Source: SL 1966, ch 111, ch 12, § 1 (1).
58-8-3. Advertising relating to unauthorized insurers as misdemeanor.
It is a Class 2 misdemeanor for any person to publish or print in this state in any newspaper, magazine, periodical, circular, letter, pamphlet, or in any other manner, or to publish by radio or television broadcasting in this state, any advertisement or other notice, either directly or indirectly, setting forth the advantages of or soliciting business for any insurer, insurance producer, or other person who has not been authorized to transact insurance business in this state.
Source: SL 1966, ch 111, ch 12, § 1 (2); SL 1978, ch 359, § 2; SL 2001, ch 286, § 99.
58-8-4. Acceptance of advertising without proof of authority to do business in state as misdemeanor.
No person may accept for publication or printing any newspaper, magazine, or other periodical, or for radio or television broadcasting in this state, any advertisement or other notice, either directly or indirectly setting forth the advantages of or soliciting business for any insurer, insurance producer, or other person, unless the publisher holds a certificate to the effect that the insurer, insurance producer, or other person named therein is authorized to transact insurance business in this state for the current license year. The certificate shall be issued by the director without cost to any person applying therefor.
Any violation of this section is a Class 2 misdemeanor.
Source: SL 1966, ch 111, ch 12, § 1 (3); SL 1978, ch 359, § 2; SL 2001, ch 286, § 100.
58-8-5. Distribution of advertising matter as to advantages of doing business with unauthorized insurer as misdemeanor.
It is a Class 2 misdemeanor for any manufacturer, jobber, wholesaler, or retailer to distribute or to cause to be distributed any match books or other advertising matter, directly or indirectly, setting forth the advantages of or soliciting business for any insurer, insurance producer, or other person, who has not been authorized to transact insurance business in this state.
Source: SL 1966, ch 111, ch 12, § 1 (4); SL 1978, ch 359, § 2; SL 2001, ch 286, § 101.
58-8-6. Unauthorized insurers--Purposes of Process Act.
The purpose of §§ 58-8-6 to 58-8-19, inclusive, is to subject certain insurers to the jurisdiction of the courts of this state in suits by or on behalf of insureds or beneficiaries under insurance contracts. The Legislature declares that it is a subject of concern that many residents of this state hold policies of insurance issued or delivered in this state by insurers not authorized to do business in this state, thus presenting to such residents the often insuperable obstacle of resorting to distant forums for the purpose of asserting legal rights under such policies. In furtherance of such state interest, the Legislature herein provides a method of substituted service of process upon such insurers and declares that in so doing it exercises its power to protect its residents and to define, for the purpose of this statute, what constitutes doing business in this state, and also exercises powers and privileges available to the state by virtue of Public Law 15, 79th Congress of the United States, Chapter 20, 1st Sess., S. 340, as amended, which declares that the business of insurance and every person engaged therein shall be subject to the laws of the several states.
Source: SL 1966, ch 111, ch 12, § 3.
58-8-7. Acts by unauthorized insurer constituting appointment of director of insurance as agent for service of process.
Any of the following acts in this state, effected by mail or otherwise, by an unauthorized foreign or alien insurer:
(1) The issuance or delivery of contracts of insurance to residents of this state or to corporations authorized to do business therein;
(2) The solicitation of applications for such contracts;
(3) The collection of premiums, membership fees, assessments, or other considerations for such contracts; or
(4) Any other transaction of insurance business;
is equivalent to and shall constitute an appointment by such insurer of the director to be its true and lawful attorney, upon whom may be served all lawful process in any action, suit, or proceeding instituted by or on behalf of an insured or beneficiary arising out of any such contract of insurance, and any such act shall be signification of its agreement that such service of process is of the same legal force and validity as personal service of process in this state upon such insurer.
Source: SL 1966, ch 111, ch 12, § 4.
58-8-8. Manner of service of process--Duties of director.
Such service of process shall be made by delivering to and leaving with the director or some person in apparent charge of his office two copies thereof and the payment to him of a fee as set forth in subdivision 58-2-29(12)(c) which shall be taxed in the costs of the proceeding. The director shall forthwith mail by registered or certified mail one of the copies of such process to the defendant at its last known principal place of business, and shall keep a record of all process so served upon him.
Source: SL 1966, ch 111, ch 12, § 5; SL 1975, ch 305, § 3; SL 1982, ch 28, § 18.
58-8-9. Notice by mail to insurer--Proof of service.
Service of process pursuant to § 58-8-8 is sufficient, provided notice of such service and a copy of the process are sent within ten days thereafter by registered or certified mail by plaintiff or plaintiff's attorney to the defendant at its last known principal place of business, and the defendant's receipt, or receipt issued by the post office with which the letter is registered or certified, showing the name of the sender of the letter and the name and address of the person to whom the letter is addressed, and the affidavit of the plaintiff or plaintiff's attorney showing a compliance herewith are filed with the clerk of the court in which such action is pending on or before the date the defendant is required to appear, or within such further time as the court may allow.
Source: SL 1966, ch 111, ch 12, § 5; SL 1982, ch 28, § 18.
58-8-10. Service of process on agent of unauthorized insurer other than director.
Service of process in any such action, suit or proceeding shall in addition to the manner provided in §§ 58-8-8 and 58-8-9, be valid if served upon any person within this state who, in this state on behalf of such insurer, is:
(1) Soliciting insurance; or
(2) Making, issuing, or delivering any contract of insurance; or
(3) Collecting or receiving any premium, membership fee, assessment, or other consideration for insurance;
and a copy of such process is sent within ten days thereafter by registered or certified mail by the plaintiff or plaintiff's attorney to the defendant at the last known principal place of business of the defendant, and the defendant's receipt, or the receipt issued by the post office with which the letter is registered or certified, showing the name of the sender of the letter and the name and address of the person to whom the letter is addressed, and the affidavit of the plaintiff or plaintiff's attorney showing a compliance herewith are filed with the clerk of the court in which such action is pending on or before the date the defendant is required to appear, or within such further time as the court may allow.
Source: SL 1966, ch 111, ch 12, § 6; SL 1982, ch 28, § 18.
58-8-12. Mode of service of process cumulative.
Nothing in this chapter shall limit or abridge the right to serve any process, notice, or demand upon any insurer in any other manner now or hereafter permitted by law.
Source: SL 1966, ch 111, ch 12, § 8.
58-8-13. Conditions precedent to filing of pleadings by unauthorized foreign or alien insurer--Deposit or bond--Procurement of certificate of authority.
Before any unauthorized foreign or alien insurer shall file or cause to be filed any pleading in any action, suit, or proceeding instituted against it, such unauthorized insurer shall in addition to any other requirement that may be imposed by law either:
(1) Deposit with the clerk of the court in which such action, suit, or proceeding is pending cash or securities or file with such clerk a bond with good and sufficient sureties, to be approved by the court, in an amount to be fixed by the court sufficient to secure the payment of any final judgment which may be rendered in such action; provided, however, that the court may in its discretion make an order dispensing with such deposit or bond where the insurer makes a showing satisfactory to such court that it maintains in a state of the United States funds or securities, in trust or otherwise, sufficient and available to satisfy any final judgment which may be entered in such action, suit or proceedings; or
(2) Procure a certificate of authority to transact the business of insurance in this state.
Source: SL 1966, ch 111, ch 12, § 9 (1).
58-8-14. Motion of unauthorized foreign or alien insurer to quash or set aside service of process--Deposit or bond not required--Grounds for motion.
Nothing in § 58-8-13 is to be construed to prevent an unauthorized foreign or alien insurer from filing a motion to quash any process or to set aside service thereof made in the manner provided in §§ 58-8-8 to 58-8-10, inclusive, on the ground either:
(1) That such unauthorized insurer has not done any of the acts enumerated in § 58-8-7; or
(2) That the person on whom service was made pursuant to § 58-8-10 was not doing any of the acts therein enumerated.
Source: SL 1966, ch 111, ch 12, § 9 (3).
58-8-15. Action against unauthorized insurer commenced by substituted process--Postponement by court to give defendant opportunity to defend.
The court in any action, suit or proceeding, in which service is made in the manner provided in §§ 58-8-8 to 58-8-10, inclusive, may order such postponement as may be necessary to afford the defendant reasonable opportunity to comply with the provisions of § 58-8-13 and to defend such action.
Source: SL 1966, ch 111, ch 12, § 9 (2).
58-8-16. Vexatious refusal by unauthorized foreign or alien insurer to make payment--Attorney fees of plaintiff.
In any action against an unauthorized foreign or alien insurer upon a contract of insurance issued or delivered in this state to a resident thereof or to a corporation authorized to do business therein, if the insurer has failed for thirty days after demand prior to the commencement of the action to make payment in accordance with the terms of the contract, and it appears to the court that such refusal was vexatious and without reasonable cause, the court may allow to the plaintiff a reasonable attorney fee and include such fee in any judgment that may be rendered in such action. Failure of an insurer to defend any such action shall be deemed prima facie evidence that its failure to make payment was vexatious and without reasonable cause.
Source: SL 1966, ch 111, ch 12, § 10.
58-8-17. Exemptions from unauthorized insurers process provisions.
The provisions of §§ 58-8-6 to 58-8-19, inclusive, shall not apply to any action, suit or proceeding against any unauthorized foreign or alien insurer arising out of a contract of:
(1) Reinsurance of the liability of an admitted insurer;
(2) Insurance against perils of navigation, transit, or transportation upon hulls, freights, or disbursements, or other ship owner interest; upon goods, wares, merchandise, and all other personal property and interests therein, in course of exportation from or importation into any country, or transportation coastwise, including transportation by land or water from point of origin to final destination and including war risks; and marine builder's risks, dry docks and marine railways, including insurance of ship repairer's liability, and protection and indemnity insurance, but excluding insurance covering bridges or tunnels;
(3) Aircraft insurance;
(4) Insurance on property or operations of railroads engaged in interstate commerce;
(5) Insurance in accordance with the surplus line law;
(6) Insurance against legal liability arising out of the ownership, operation, or maintenance of any property having a permanent situs outside of this state;
(7) Insurance against loss of or damage to any property having a permanent situs outside this state; or
(8) Where such contract contains a provision designating the director to be its true and lawful attorney upon whom may be served all lawful process in any action, suit, or proceeding instituted by or on behalf of an insured or beneficiary arising out of any contract or where the insurer enters a general appearance in any such action, suit, or proceeding.
Source: SL 1966, ch 111, ch 12, § 11.
58-8-18. Uniformity of interpretation of chapter.
This chapter shall be so interpreted as to effectuate its general purpose to make uniform the law of those states which enact it.
Source: SL 1966, ch 111, ch 12, § 2 (2).
