M A R C H /AP R I L 2 0 1 5 I S S U E N O. 2 7 9 Inside this issue. Federal Workers Comp Lien page 5 No is a Complete Sentence page 6 2015 Final Legislative Report page 8 Call for Board of Governor Nominations - page 9.and much, much more 2015 SDTLA Annual Seminar & Golf Tournament April 30-May 1, 2015 Grand Falls Resort Larchwood, IA See page 19-22 for registration details SDTLA CALENDAR OF EVENTS 2015 April 30 May 1 June 17 June 18 July 16 August PAC Golf Tourney, SDTLA Annual Seminar & Board Mtg Grand Falls Resort Board Meeting at Bar Convention, Rapid City, 11 am Annual Meeting and Elections, Ramkota Rapid City Board conference call 11 am Board meeting, 11 am USD Law School, Vermillion 1Ls Event 1pm, USD Law School Courtroom
March/April 2015 P R E S I D E NT S MESSAGE. B Y G. V E R N E G O O D S E L L MODIFIED CONTRIBUTORY NEGLIGENCE UPDATE Page 2 Officers President: G. Verne Goodsell President-Elect: Steven C. Beardsley Secretary-Treasurer: Margo T. Julius Board of Governors Timothy Rensch, AAJ Delegate Aaron D. Eiesland, AAJ Delegate Clint Sargent, AAJ Governor Terrence R. Quinn, AAJ Governor Nathan R. Oviatt, AAJ Young Governor Stanton A. Anker Michael S. Beardsley Casey W. Fideler Alecia E. Fuller Raleigh E. Hansman Ryan Kolbeck Jason KW Krause Melissa B. Nicholson Kasey L. Olivier Robbie J. Rohl McLean Thompson Kerver T.J. Von Wald Past Presidents Immediate Past President Stephanie E. Pochop William J. Holland - Stan Siegel Joseph M. Butler - John H. Zimmer Carleton R. Hoy - Horace R. Jackson William F. Day Jr. - Vincent J. Protsch Gale E. Fisher - A. William Spiry Franklin J. Wallahan - Gerald L. Reade Rick Johnson - David V. Vrooman Terence R. Quinn - Thomas R. Pardy Charles M. Thompson - David R. Gienapp Gary E. Davis - Gregory A. Eiesland James S. Nelson - Robert J. Burns Brent A. Wilbur - Steven M. Johnson Glen H. Johnson - William J. Srstka Jr. Gary D. Jensen - John P. Blackburn Michael W. Day - Michael J. Schaffer Bruce M. Ford - Nancy J. Turbak Berry Scott Heidepriem Michael D. Stevens Robert L. Morris II - Richard D. Casey Jon Sogn Mark V. Meierhenry Brad Schreiber Jeff A. Larson Mark Connot Tina M. Hogue James Roby - Wally Eklund Michael F. Marlow - Clint Sargent Michael A. Wilson Roger A. Tellinghuisen Steven S. Siegel Association Office 104 W Spring Creek Dr PO Box 1154 Pierre, SD 57501-1154 605-224-9292 In a bold move to replace the archaic barred if greater than slight standard of contributory negligence, the House Judiciary voted 10-3 in favor of HB 1103. The bill went on to clear the House on a floor vote of 54-13. The House recognized that the archaic rule, a carryover from 1941, needed to be revised to a rule that fairly apportions fault and recognizes the modern legal standards used throughout the country. South Dakota is the only State in the Union that clings to the greater than slight standard. South Dakota is behind the times: Nebraska did away with the rule in 1992. In the 2015 legislative session, the South Dakota House recognized inherent inequities of the greater than slight standard, which has led to its rejection by every other state in the Union. However, the more staid side of our Legislature, the Senate, killed the bill. The momentum released in the bold move by the House has set the stage for change in the future. Fairness, or lack of fairness, is a touchstone for rules developed by courts and legislatures. Modified Contributory Negligence is fundamentally fairer than South Dakota s antiquated standard. It is only a matter of time before the barred if more than slight standard is no longer a looming presence in South Dakota law. The House s monumental move is simply recognition of what is good for South Dakota. The most persuasive support for the bill came from retired judges, explaining first hand their experience and frustration in watching jurors wrestle with implementing the existing rule. These first hand stories from neutrals, judges, and jurors are the best evidence supporting change. Going forward this will be compelling testimony demonstrating the failures of the existing rule. Please look for these stories and report them to us so that they can be considered for the next time this bill is presented. Before leaving the Legislative scene, I want to personally recognize and thank, Roger Tellinghuisen who did a spectacular job for us in the 2015 session. Second, a thank you to Sara Hartford, our executive director, who provided weekly updates during the session on pending legislation - following some 41 bills. SPRING CLE UPDATE SDTLA ANNUAL CLE at the Grand Falls is fast becoming a Tradition: Trial Tips from the Masters. A Tradition Unlike Any Other. Set-aside April 30 and May 1, to walk and talk with the Masters of Trial Practice. On Thursday morning, Gary Dordick, of Beverly Hills, CA, discusses how to structure a case for large verdicts, in his presentation: Damages: How to Communicate with Continued on page 15 The Barrister is published electronically six times a year by the South Dakota Trial Lawyers Association as a service to its membership and as part of its continuing commitment to educate and promote professionalism among trial attorneys. Submissions are welcome. Interested authors should contact Sara Hartford, Executive Director at the above address. Articles are accepted from contributors who share the goals of the South Dakota Trial Lawyers. All submissions must be signed by the author. The Barrister is not responsible for cite-checking or reference checking materials cited in submissions. The author must verify that any sources included, relied upon or quoted in the submission have been properly credited and cited; the author must obtain all necessary permissions for publication of copyright protected materials. The Executive Director and Editor have the right to edit all submissions or refuse to publish articles that are not in keeping with the goals of the organization. Subscriptions of $25 are included in the Association s annual membership dues. Non-members subscription rate is $50 per year. Statements and opinions in the Barrister editorials and articles are not necessarily those of SDTLA. Publication of advertising does not imply endorsement of products or services or statements made about them. Advertising copy is subject to approval by SDTLA. Copy deadlines are February 1, April 1, June 1, August 1 October 1 and December 1. Call for advertising rates.
March/April 2015 Page 3 TOAST OF TRIAL LAWYERS June 2006 Nancy Turbak T.F. Martin Travis Jones Michael Stevens June 2007 Roger Tellinghuisen Mike Butler Eric Schulte June 2008 Sid Strange Jerry Reade Jim Leach June 2009 Mike Abourezk Alecia Garcia Scott Heidepriem Shiloh MacNally Doug Cummings June 2010 Michael DeMersseman Hon. John Schlimgen Joni Cutler Margo Julius Scott Abdallah June 2011 Susan Sabers TJ Von Wald John Murphy Steve Siegel June 2012 John Blackburn Linda Lea Viken Hon. Mark Smith Ronald Parsons June 2013 Rep. Michael Stevens Hon. John Hinrichs Hon. Michelle Percy Clint Sargent McLean Thompson Kerver Eric C. Schulte Tim Rensch Stephanie Pochop Richard Casey Ryan Kolbeck June 2014 Clint Sargent Raleigh Hansman Ronald Parsons Joseph Kosel EDITOR s Notes & Comments Marya V. Tellinghuisen Spring, Oh SO Close By Willow Lawrence Sunny today but Oh what a chill The wind inhales and exhales the trees bend on the hill Winnie the Poohs Blustery Day just cannot compete In like a lion and out like a lamb I am so tired of paying for heat I long for crocuses, tulips and green it seems like ages since they have been seen I think we can all relate to this poem. I have lived my entire life in South Dakota and sometimes wonder why it s certainly not because of the mild weather. Someone once told me if you can plan a couple of trips during the winter months, it isn t so bad. Of course, my husband spends January, February and half of March in Pierre, so my opportunities to leave South Dakota have to wait until the legislative session is over. We spent part of last week in Arizona but ironically, it was 63 degrees and on and off rain on Thursday the weather in Rapid City was the same without the rain. Speaking of the legislative session, you will get a flavor of what was accomplished this year by reading Verne s president s page and Roger s legislative report. While the comparative negligence bill ultimately failed in the Senate, it is important to remember that this is the furthest this bill has ever gone in the South Dakota legislature. I am so proud of everyone who helped support this legislation. I was present in Pierre when Steve Beardsley and John Dorsey testified in the House Judiciary committee. The stories they related to the committee were fabulous examples how the more than slight standard often has an unfair result. We need to remember these stories for next year and perhaps more of our members can help persuade the legislative body that this change is good for South Dakotans. I also know that there were many others working behind the scenes to garner support. Please thank these members for taking the time to support the Trial Lawyers. In this issue, you will find an article submitted by Brad Harris regarding Federal Worker s Compensation liens. Also, an article written by me regarding the difficulty in saying no. Before you know it, the spring seminar will be here. It is scheduled for April 30-May 1 in Larchwood. This is always a fun seminar and the list of speakers is phenomenal this year. I don t play golf or poker but I am sure I can find something entertaining to do while there. The room block will be released March 30 th so get your reservations made soon. Also, nominations are being accepted for officers and the Toast of the Trial Lawyers. The bar convention is in Rapid City this year so if you haven t done so already, block June 17-19 th off on your calendar. It s a great place for a vacation with the family. I grew up going to the bar convention with my family. My brother Tom and I always had fun swimming and playing pin ball I don t think I missed one until I was a teenager. As an attorney, I have only missed one or two conventions. I don t typically swim or play pin ball any more, but I do have a lot of fun catching up with law school friends and others I only see once a year. Hope to see you soon.
March/April 2015 Page 4 Scott A. Abdallah Michael C. Abourezk Charles Abourezk Grant G. Alvine Kenneth E. Barker Steven C. Beardsley John P. Blackburn Michael D. Bornitz John William Burke Michael J. Butler Renee H. Christensen J. Michael Dady Patrick K. Duffy Gregory A. Eiesland Aaron Eiesland Jay R. Gellhaus G. Verne Goodsell Scott N. Heidepriem Scott G. Hoy John R. Hughes Gary D. Jensen Steven M. Johnson George Johnson Margo T. Julius David J. King Ryan Kolbeck SUSTAINING MEMBERS Jeff A. Larson James D. Leach Brad J. Lee Michael F. Marlow Lee C. 'Kit' McCahren Mark V. Meierhenry N. Dean Nasser James S. Nelson Melissa B. Nicholson Stephanie E. Pochop Terence R. Quinn Timothy J. Rensch James C. Roby Michael K. Sabers Clint Sargent Steve S. Siegel Michael J. Simpson Michael D. Stevens Michael W. Strain Roger A. Tellinghuisen Thomas P. Tonner Nancy J. Turbak Berry TJ Von Wald Thomas K. Wilka Michael A. Wilson Sustaining members pay $700 in dues each year, which entitles them to attend the Association s annual fall seminar, the annual meeting and luncheon and a plaque denoting their sustaining membership status. Our gratitude goes to these members so that the association can continue to sustain funding for an on-going defense of the civil justice system! SDTLPAC is the political action committee of the SD Trial Lawyers Association. Organized in 1987, SDTLPAC contributes to any candidate for a state office who will support fair and equitable legislation to protect the rights of South Dakotans through the preservation of our justice system. WE THANK THESE CONTRIBUTORS FOR THEIR SUPPORT! $1,800 ANNUAL Michael F. Marlow Lee C. Kit McCahren Stephanie E. Pochop $1,200 ANNUAL Kenneth E. Barker John P. Blackburn Aaron D. Eiesland Gregory A. Eiesland Scott N. Heidepriem Clint Sargent Michael D. Stevens Roger A. Tellinghuisen $1000 ANNUAL Scott Hoy $900 ANNUAL Gary D. Jensen Nancy Turbak Berry $720 ANNUAL Michael A. Wilson $600 ANNUAL Terry L. Hofer Margo T. Julius Mark V. Meierhenry James C. Roby Michael J. Schaffer Whiting Hagg & Hagg $500 ANNUAL John W. Burke Courtney R. Clayborne Terry Pechota $480 ANNUAL Jon C. Sogn $300 ANNUAL G. Verne Goodsell Wm. Jason Groves Steven S. Siegel Thomas Tobin $180 ANNUAL Brad J. Lee $150 ANNUAL Jeremiah Jay Davis $120 ANNUAL Kenneth D. Bertsch Daniel F. Duffy Richard A. Engels Dennis W. Finch Robert B. Frieberg Alecia E. Fuller George E. Grassby Ryan Kolbeck Michael Paulson Catherine V. Piersol Haven L. Stuck T. J. Von Wald LIFETIME ACHIEVEMENT AWARD Carleton Tex Hoy John F. Hagemann Robert C. Ulrich Fred J. Nichol Award for Outstanding Jurist Hon. Ernest W. Hertz 2000 Hon. Andrew W. Bogue - 2001 Hon. John B. Jones 2002 Hon. George W. Wuest - 2003 Hon. Marshall P. Young 2004 Hon. Robert A. Amundson 2005 Hon. Lawrence L. Piersol 2006 Hon. Richard W. Sabers 2007 Hon. Judith K. Meierhenry - 2008 Hon. Tim D. Tucker 2009 Hon. David R. Gienapp - 2010 Hon. Jack Von Wald 2011 Hon. John W. Bastian - 2012 Hon. David Gilbertson -2013 Hon. John K. Konenkamp 2014 TRIAL LAWYER OF THE YEAR AWARDS 87-88 Terry Quinn 88-89 Greg Eiesland 89-90 Steve Johnson 90-91 Glen Johnson 91-92 Bob Burns 92-93 Gary Jensen 93-94 Joe Butler 94-95 Mark Meierhenry 95-96 Jeff Larson 96-97 Nancy Turbak 97-98 David Gienapp 98-99 Rick Johnson 99-00 Jim McMahon 00-01 Mike Schaffer 01-02 John Blackburn 02-03 William F. Day, Jr. 03-04 Michael Abourezk 04-05 Michael W. Strain 05-06 Patrick Duffy 06-07 Thomas G. Fritz 07-08 Michael J. Butler 08-09 Wally Eklund 09-10 James D. Leach 10-11 N. Dean Nasser, Jr. 11-12 Stanley Whiting 12-13 Charles M. Thompson 13-14 Linda Lea Viken
March/April 2015 Page 5 Watch Out for the Federal Workers Comp Lien against your PI case!! By Brad Harris Picture this, you represent a person that was hurt in a car wreck (or any other incident caused by negligence of another person) which occurred while he was working for the federal government. At first glance it appears to be a typical personal injury claim. You assume some kind of lien exists against your client s personal injury settlement in consideration of his receipt of the federal workers compensation benefits. You ve settled car wreck cases with underlying workers compensation liens before, but that was done in accordance the laws of your state (because that was state law workers comp). You don t practice federal employee workers compensation and you don t know anyone that does. Is it different to resolve the underlying lien with the federal government? Are there timing considerations which would work to maximize your client s overall benefits? Are there ways to avoid the lien altogether? What consequences may exist for both you and your client if you ignore it? These are the points that I will attempt to address in this article. In nearly all legal matters I like to identify the other side s motivations. Usually it s financial, and that s the case here, too - even though we are dealing with the federal government. When a federal employee has a workers compensation claim it is adjudicated by the Department of Labor s (DOL) agency called the Office of Workers Compensation Programs (OWCP). Even though the claim is adjudicated by a different agency than the one that the employee is working for, the payments the OWCP makes on behalf of the injured worker is charged back against the particular government agency at which the worker are employed. Therefore, each agency has a financial interest in not only the minimization of amounts paid out to its injured workers, but also in recouping funds from their injured workers third party cases. In the fiscal year 2011 the federal government received over 8 million dollars in refunds on third party cases! Additionally, the federal government was able to reduce its future workers compensation obligations to the injured federal employees by over 22 million dollars by shifting responsibility for those benefits to the third party tortfeasors (more on this later). The injured worker s immediate superior (or person at employing agency completing the agency s portion of the initial claim form) is required to identify possible third party cases on the initial workers comp claim form. If the workers comp claim is approved, 5 U.S.C. 8131 requires recipients of federal workers comp to initiate a suit against a third party tortfeasor. Under 5 U.S.C. 8132, if there is a recovery from the third party tortfeasor, your client is required to reimburse the United States for the benefits paid. This reimbursement requirement can never be waived. Unless permission in writing is given by OWCP, the beneficiary may not settle or dismiss a case for any amount less than the refundable disbursements as defined in 20 C.F.R. 10.714. See 20 CFR 10.707. Claimants and their attorneys are required to provide periodic status updates and other relevant information in response to OWCP requests. See 20 C.F.R. 10.707. The 8131 requirement (to bring a claim against the third party) can be waived, but only under certain limited circumstances. e.g. Census workers injuries (due to privacy considerations). But, if the census worker does pursue the third party claim and receives a recovery, the government still has the 8132 statutory right of reimbursement. According to 8131, the government can even require the employee to assign a right of action to enforce that liability to the United States. This is a strange concept to most attorneys who consider claims for personal injury to be unassignable. After your client learns about the 8132 reimbursement right of the government, he may decide he does not want to pursue the claim against a third party. If so, he should make a written request to OWCP pursuant to 20 C.F.R. 10.709, to be released from 8131 s requirement. If the government decides to purse your personal injury claim, it doesn t get more than its lien rights. Stated in another way; should the government s prosecution of claim result in a recovery from a third party, only the refund requirement imposed by 8132 is still in effect. So what happens if your client directs you to ignore the federal government s lien rights? You should advise him that decision could result in forfeiture of his rights to workers compensation benefits, 20 C.F.R. 10.708, or the right to compensation may be suspended. Continued on page 13
March/April 2015 Page 6 No is a Complete Sentence By Marya V. Tellinghuisen Roger and I were having a glass of wine a few months ago with a young married couple who are both attorneys. Roger arrived a little late as he had an appointment with a potential new client. Roger stated that he had decided not to take the case. The conversation turned to how difficult it is to tell a potential client that you aren t willing to take his case. He said in this case it wasn t that difficult because the client had already met with at least 2 other attorneys before contacting him. There was also a statute of limitations deadline looming very close. Both of these things were red flags for him. The question then becomes, when do you say no and how do you do it? Contingent fee cases vs. hourly If you normally work on an hourly basis, working on contingency may seem like a breath of fresh air, but think again. If your primary practice area involves business clients, family law or other hourly work, then contingent fee work may not be for you. It is not unusual for a contingent case to take years to get a resolution. Furthermore, if you are the plaintiff, it is your job to move the case along. Cases often get bogged down in the discovery process. When lawyers first get a case, they are often excited and start the process off with a bang. But other matters will soon get in the way and you need an established practice of working your contingent files or they will get stale. We often see cases at the courthouse that are 3 or 4 years old and these are uncomplicated personal injury cases. I often wonder why it has taken so long to get to court. There are many things that can get in the way but a good personal injury lawyer will get the case to court in a timely manner. If you don t think you have that determination and dedication to the cause, pass on the case. Cases outside of your comfort level Most lawyers develop areas of practice. That does not mean that you can never try something new. But if you think a case is outside of your comfort level then it may be better to refer the client to someone with more expertise in that area. Tell the client that you would be more comfortable referring him to another lawyer who does more of this type of work all the time. It is much better to spend your time doing what you are good at. Most of the lawyers I know are multitaskers who take on stress without much thought. Next time, think about the personal cost you will incur by taking on something you know nothing about. This is hard for lawyers, because most of us have a helper type of personality. We like to help people. It is not natural for us to turn people down. Learn to discuss fees at the outset Contingent fee cases do not come without costs. There are filing costs, service costs, deposition costs, travel costs, expert costs and many, many more costs that a lay person doesn t understand. You need to do the math and figure out if the person s case makes sense. If the client has $20,000 in damages and it will cost $15,000 to go to trial, is it worth your time and efforts? An experienced lawyer will know how to evaluate the claim to see if it is worth the cost of the litigation. Clients are expected to pay these costs either out of their own pocket in the event of no recovery or out of their recovery is successful make sure they understand that. Also, because you are working on a contingent fee basis, this does not mean you work for free. Your client needs to respect your time and what you hope to accomplish for him. Listen to your inner voice When you don t like a client, how hard are you going to work for him? Or if you have doubts about a client s credibility, stability, or trustworthiness listen to your inner voice or spidey senses as they are often called. Not all clients are the same just as not all people are the same. You will be spending a great deal of your time and resources helping the client. Do you want to do that if the client is rude or disrespectful? It is way easier to say no at the outset than it is to get out of a case later on. Practice saying no Saying no to anyone is difficult. Oprah used to say no is a complete sentence. This is a great line as it frees one from coming up with an excuse for not wanting to represent someone. If you do feel that you need to come with up with a reason, make sure the client understands that it isn t negotiable. Once an excuse or reason is offered up, it is easy for the other person to give you a reason why your reason shouldn t matter. For example, I m sorry I can t take your case right now as I have several pressing cases. Response: Well, I m really not in a hurry to start anything right now and could Continued on page 17
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March/April 2015 Page 8 2015 Legislative Report By Roger Tellinghuisen Another year of work by the South Dakota Legislature has drawn to a close. The number of bills introduced was remarkably low this year. There were 236 House bills and 193 Senate bills for a total of 429 which compares to 448 from the year before. Again this year, like last year, there were no real tort reform bills introduced with the exception of our proposed amendment to our comparative negligence statute (HB 1103). Of the bills introduced, we actively tracked 42 bills as compared to 43 bills tracked last year. Sara Hartford s March 6 th Legislative Update lists all the bills we tracked and gives their status as of that date. As of this writing, I am not aware of the Governor having vetoed any of the bills we were tracking which reached his desk. To determine the final outcome of a Bill, go to the Legislative Research Council s website at legis.state.sd.us, click on Legislative Session, select 2015 and Bills. Then you can either scroll thru the entire list of bills or you can use the Quick Search feature by typing in the specific bill number you are interested in (without typing in the prefix HB or SB ). Scroll to the bottom of the bill status and you will see the bill s final disposition. HB 1103 was our bill aimed at amending our existing comparative negligence statute found at SDCL 20-9-2 to remove the bar to recovery in the event a plaintiff s contributory negligence was more than slight in comparison to the negligence of the defendant. Rep. Mike Stevens from Yankton and Sen. Art Rusch from Vermillion were the two prime sponsors in the House and the Senate respectively. The bill was assigned to the House Judiciary committee chaired by Rep. Mark Mickelson from Sioux Falls. Rep. Stevens led off the presentation, followed by Sen. Art Rusch, Rep. Brian Gosch, Steve Beardsley, John Dorsey and me. The bill passed out of committee on a 10 3 vote. The next day the bill passed the House on a 54-13 vote. The large margin of success in the House is in large part attributable to the fact that there are 7 lawyers in the House. Of those 7 lawyers, 6 of them supported the bill. The only lawyer in the House who did not support the bill was Rep. Lance Russell from Hot Springs. Special mention in the House goes to Reps. Mike Stevens and Tim Johns from Lead. Mike did a superb job of leading the discussion and Rep. Johns, a retired Circuit Court Judge, contributed significantly. When the bill went over to the Senate, it was obvious that the insurance industry was lying in wait for the bill s arrival. Although the industry put up a fight in the House Judiciary Committee and on the House floor, they REALLY bulked up in their opposition in the Senate. The bill was assigned to the Senate Commerce committee by Sen. Cory Brown from Gettysburg, President Pro Tem (he owns an insurance agency and was a staunch opponent to the bill) instead of the Judiciary committee where it had been heard in the House. Sen. Rusch did a great job of presenting the bill, followed by Reps. Tim Johns and Mike Stevens, retired Circuit Court Judge John Jack Delaney, Rex Hagg and myself. The opposition consisted of 14 individuals representing the insurance industry and a couple of surprising opponents: the South Dakota Chamber (which is a perennial opponent to SDTLA positions) and the Sioux Falls Chamber. After a 2 ½ hour hearing (the committee hearings are only scheduled for 2 hours), the bill passed out of committee on a 4-3 vote. Those voting in favor of the bill were Sen. Dan Lederman from North Sioux City, Sen. David Novstrup from Aberdeen, Sen. Billie Sutton from Burke and Sen. Blake Curd from Sioux Falls. Those voting against it were Sen. Brock Greenfield from Clark, Sen. Jenna Haggar from Sioux Falls and Sen. Jim Bradford from Pine Ridge. A special thanks goes out to Stephanie Pochop, Kelsea Sutton, Scott Heidepriem, Steve Siegel, Russ Janklow, Steve Beardsley, Rex Hagg, Nancy Turbak -Berry, Maggie Gillespie, (and I know I m forgetting some folks and for that I sincerely apologize) for their efforts at contacting Senators and encouraging them to vote for this bill when it came to the Senate floor two days later. Unfortunately, the bill was defeated on a 9-25 vote. It was a sound trouncing indeed, BUT we ll be back next year. Hopefully, we can learn from last year and shore up some of our lack of support in the Senate. On a side note, I want to thank Sen. Art Rusch, who in his first year in the legislature, distinguished himself admirably. I spoke to a number of his colleagues during session who expressed they were impressed with his performance and look forward to his continued participation in the process. Following are some of the other bills that taken up by this year s Legislature (they re in no particular order of significance): HB 1134 - An Act to revise certain provisions concerning the expungement of arrest records. This bill amends our existing expungement statute found at SDCL 23A-3-27. The most notable amendment to the statute is the removal of the requirement that the state s attorney consent to the expungement of a person s arrest record when the state s attorney has dismissed the entire criminal case. This has been a thorny issue between the Attorney General s office and States Attorney s Association on the one hand and the criminal defense lawyers and SDTLA on the other. The law will Continued on page 16
March/April 2015 Page 9 NOTICE OF NOMINATIONS The Elections Committee of the South Dakota Trial Lawyers Association is seeking nominations for the following offices: President-Elect Secretary-Treasurer AAJ Governor 2015-18 AAJ Delegate 2015-17 four (4) At Large Members of the Board of Governors for the 2015-17 term one (1) At Large Member of Board of Governors in practice not more than three years/2015-16 term NOTE: This notice is in lieu of the call for nominations from the floor during the 2015 SDTLA Annual Meeting, June 18, 2015. If you wish to nominate someone for one of the above offices, fill out the nomination form below and return it to the SDTLA office. All nominations must be received by May 1, 2015. All nominees will be notified of their nomination by mail. A sample ballot will be published in the May/June issue of the BARRISTER. * * * * * * * * * * SDTLA NOMINATION FORM I,, of, nominate for the office of He/She is a member of the firm and his/her address and email address is. RETURN TO by May 1, 2015: Elections Committee South Dakota Trial Lawyers Association PO Box 1154 Pierre, SD 57501-1154
March/April 2015 Page 10 South Dakota Trial Lawyers Association Notice of 2014 2015 MEMBERSHIP DUES DUE July 1, 2014 CATEGORIES Check one: Legal Support Staff. $50.00/ year Law Student... $10.00/ year 0-2 years in Practice $70.00/year 3-5 years in Practice....$100.00/year Public atty employed over 2 years* $100.00/year Over 5 years in Practice $350.00/year Sustaining membership ** $700.00/year Subscribing membership ***..$125.00/year Please print or type Name Email Address Mailing address CITY State ZIP Telephone Cell number County Date Admitted to Bar Return to with appropriate dues: SDTLA PO Box 1154 Pierre, SD 57501-1154 * All public attorney members must be employed on a full-time basis by the Federal, State, county or municipal government or legal aid association. ** Any sustaining member must be engaged in the practice of law for more than five years and be a member in good standing of the Association for five years. Attendance at the Association s annual fall seminar is free for sustaining members. *** Anyone may apply for a subscribing membership in the Association, i.e. associations, institutions of higher learning, research companies, etc. Subscribing members shall receive all Association membership benefits, but are not entitled to vote.
March/April 2015 Page 11 NEW LAWYER REFERRAL LIST The South Dakota Trial Lawyers Association has compiled a list of aspiring young trial lawyers who are interested in accepting civil case referrals. The list is not for pro bono referrals, but rather cases that another attorney is not interested in handling due to his or her caseload, area of interest, or the client s ability to pay. The purpose of creating this list is to allow young lawyers to gain experience handling civil cases on their own, while at the same time matching a worthy client with a willing lawyer. The goal is to give the lawyer the opportunity to independently plan case strategy, pursue a discovery plan and try a jury trial. By agreeing to be on the list, the attorneys have not automatically agreed to accept a case. They have the independence to accept or decline any case referred to them. Any lawyer in practice less than five years interested in accepting referrals is encouraged to contact the SDTLA office to join this list. First Circuit Kraig L. Kronaizl Blackburn & Stevens 100 West 4th Street, Yankton, SD 57078 665-5550 Family Law, General Civil Litigation, Some Criminal Defense Second Circuit Bethanna M. Feist 2121 W. 63rd Pl, #10, Sioux Falls, SD 57108 370-5088, Ext. 102 Family Law; limited Criminal Defense Melissa Fiksdal Jeff Larson Law 400 N Main Ave #207, Sioux Falls SD 57104 275-4529 Family Law, Criminal Defense Cesar Juarez Siegel, Barnett & Schutz PO Box 1286, Sioux Falls, SD 57101 335-6250 Family Law, Criminal Defense & General Civil Litigation Eric J. Ronke Ronke and Feist Law Firm 2121 W. 63 rd Pl, #10, Sioux Falls, SD 57108 370-5088 Business Law, Bankruptcy, Collections, Estate Planning, Landlord/Tenant Third Circuit Seamus W. Culhane Turbak Law Office 1301 4th St NE, Watertown, SD 57201 886-8361 Long Term Care, Homeowner s, Worker s Compensation and other Non-ERISA Insurance Denials Fourth Crcuit Brian Baczwaski Baczwaski Law Office PO Box 454, Deadwood, SD 57732 717-0078 General Civil Litigation, Real Property, Business Law/Formation, Estate Planning Meghann Joyce Boyce Greenfield etal PO Box 5015, Sioux Falls, SD 57117 336-2424 Family law, Civil Litigation and Insurance Litigation HAVE YOU CHECKED OUT SDTLA s SOCIAL MEDIA?? The South Dakota Trial Lawyers Association is pleased to announce that it has re-launched its official Facebook page in an effort to connect and unite more attorneys and legal support staff throughout South Dakota. Videos, pictures, and information about upcoming SDTLA events will be posted regularly. Members are also invited to post questions, comments, articles, etc. on SDTLA s Facebook wall. Not yet a SDTLA Facebook page member? Become one today by typing South Dakota Trial Lawyers Association SDTLA into your Facebook search function and click JOIN!
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March/April 2015 Page 13 Continued from page 4 You should also advise him that you can t place any funds into your operating account as earned if you should have reasonably believed that any part of them were are owed to the federal government. That s not to say you can t place such funds in escrow pending disbursement resolution. As in any case, you should fully explain to your client before settlement that there may be significant delays in funds availability pending disbursement resolution. So the federal government has a 8132 statutory right of reimbursement what does it include? To begin with, we should identify what is or isn t included in the government s claim against the funds obtained from the third party tortfeasor. Notice I said from the third party tortfeasor, the government has no right to any of the funds received by the injured worker due to his own good decisions about obtaining insurance. e. g. un-insured or under-insured motorists insurance benefits, or a personal disability insurance (quack quack AFLAC). But beware some states (Tennessee for example) allow their auto policies to be written in such a way that there is no uim/um benefit payable to the extent the policyholder receives workers compensation benefits. If a federal employee has a traumatic injury (as opposed to repetitive like carpal tunnel syndrome) he is entitled to 100% wage loss compensation for the first 45 days. This is called Continuation of Pay (COP). This amount is not included in determining amount of disbursements that OWCP has paid (it is excluded from reimbursement consideration) 3. If the OWCP claims examiner decides to do so, he may hire a third party vendor to help him in adjusting the claim. e.g. a nurse to follow the care process and report back to the claims examiner or doctors he hires to conduct independent medical evaluations. This is odd, but believe it or not, those expenses are included in the government s reimbursement consideration. So, now that you have thought about what can and cannot be claimed by the government as within its rights to reimbursement, you might try your typical approaches to reimbursement reduction: identify specific subrogation language in the policy language and show that it is unenforceable in your state, or ask for a total waiver of reimbursement waiver due to the extenuating circumstances (your client is seriously injured and there is little liability insurance available) or perhaps a compromise of the reimbursement right in consideration of your client s comparative negligence. Nope, none of this brilliance holds water. The government can t waive reimbursement regardless of the fact of comparative negligence (remember, the workers comp benefit obligation exists despite the negligence of the employee). The refund owed to the U.S. when a claimant achieves a recovery from a third party arises by operation of law under the specific language of 8132. The law of federal employee workers compensation is the Federal Employee Compensation Act (FECA). It places its final adjudications in its own administrative court; the Employees Compensation Appeals Board (ECAB). The Board has found no compromises are allowed. See Willie E. Cantrell, 13 ECAB 490,492 (1962): "terms of the [FECA] are specific as to what shall be charged against the proceeds of a third-party recovery and neither the Bureau (OWCP s predecessor agency) nor the Board has the authority to waive or compromise the requirements of the Act." See also Charles Howell, 38 ECAB 421 (1987). Is the government reasonable about this? It may come as a surprise to you, but the answer is yes. As you might expect, they ve got a form for that. It s an EN1108. You can easily find it on the internet in a format that you can complete on your computer, print out, and consider before you submit it with the payment. And another nice thing; in all circumstances a portion of the recovery may be allocated for loss of consortium for the spouse and children of the injured employee, thereafter the client is entitled to retain a minimum of twenty percent of the tort recovery after expenses of suit and reasonable attorney s fees are deducted. So there s a formula to determine the government s recovery right (set forth in 8132) which effects a reduction in the amount to be refunded by the FECA beneficiary and/or credited against that person s future FECA benefits. Pay particular attention to the potential credit against your client s future workers compensation benefits. The number found at line 19 of the EN1108 is retained by your client - but it the amount against which OWCP will credit his future compensation, including wage loss compensation, schedule award benefits and medical expenses, on account of the same injury. Continued on next page
March/April 2015 Page 14 In other words, the OWCP will resume payment of compensation only after the awarded compensation exceeds the amount found in line 19. For this reason, after the closing of your personal injury claim, all medical bills related to the injury that the client pays should be submitted to OWCP, regardless of when payment was made. The client will not be reimbursed for these payments, but the amounts paid will be used to reduce the amount of his line 19 balance. Clients should be advised of this potential bad news before it exists. Now that you have studied EN1108 and its effects upon the settlement of the personal injury claim, its just natural that you would look for possibilities to reduce the government s rights to your client s money. The first thought is the allocation of the recovery into categories not subject to the lien. Like perhaps pain and suffering besides, that s never a pain and suffering benefit under workers compensation, right? so it follows there s no lien against it, right? Nope. The United States Supreme court said no. According to U.S. v. Lorenzetti 467 U.S. 167 (1984) the 8132 statutory right of reimbursement attaches to the entire recovery, regardless of the elements of damages for which recovery is had. Another case of interest is Hedrington v. Golden Touch Transportation of NY, Inc. et al, No. 1:2007 cv 00387 (E.D.N.Y. Dismissed Jun. 20, 2007). There, a TSA employee was injured at the LaGuardia airport while in an employee bus operated by Golden Touch. The bus made a sudden and abrupt stop causing Ms. Hedrington to be unseated and thrown to the floor of the bus. She was about the business of her employer (TSA) when the event happened, so she filed a federal workers comp claim and received $49,801.61 in wage loss and medical expense benefits. She sued the bus company in state court. Her attorney sent notice to the OWCP four times without response. She then agreed to settle her claim for $18,500, holding the tortfeasor s insurer harmless from any and all liens and claims for reimbursement. Before her lawyer could get the funds distributed to his client, he received a detailed lien from the OWCP. Her lawyer then obtained from the state court a show cause order to the DOL to show why the state court should not order the proceeds issued to her (and deny reimbursement for the workers comp claim). Her lawyer complained that New York state law precludes injured parties from recovering the first $50,000 in first party benefits in personal injury actions. The insinuation is that federal workers comp benefits are first party benefits and, because injured parties can t claim those benefits in the action against the third party tortfeasor, there is no right of reimbursement for the first $50,000 in first party benefits under New York law. Our federal government reimbursement attorneys promptly removed the state court action to the U.S. District Court and relied upon the Supreme Court's decision in Lorenzetti, for the proposition that any money received as a result of a third party action, regardless of whether the damages are the type covered by the FECA (wage loss) or not covered by the FECA (non-economic losses such as pain and suffering), is subject to the reimbursement provisions of 8132. There s no actual decision by this U.S. District Court, but the parties agreed that the show cause action would be dismissed with prejudice, the DOL would receive its $6,296.45 (the EN1108 calculation) and the personal injury case was remanded back to state court. Some attorneys may want to decrease the government s party by claiming the recovery wasn t subject to lien it was all allowance for consortium. No, the ECAB found that that a settlement reached as a result of the third party action by husband and wife was a joint settlement, rejecting the assertion that the settlement was only for the husband's loss of consortium claim (which would not be subject to 8132 reimbursement provision). The U.S. District Court for the District of Columbia agreed, and ordered wife to refund $152,000 to the DOL. Gonzalez v. Dept Of Labor, 603 F. Supp. 2d 137 (D.D.C. 2009), aff d, 609 F. 3d 451 (D.C. Cir. 2010) Some attorneys may think the funds can be protected by placing them all into a structured settlement. No, this backfired on Attorney Richard Epstein. He settled his client s case by having the tortfeasor purchase a structured settlement on behalf of his client, retained $210,000 for his attorney fees and costs, and sent the DOL $7,000 for its reimbursement rights. The DOL sued Attorney Epstein, asserting that the attorney was jointly and severally liable because he failed to first satisfy the 8132 right of reimbursement before distributing the proceeds of a settlement. The U.S. District Court entered judgment against the attorney in the amount of $114,000. Some attorneys know that, in determining an income tax calculation, a credit is worth a lot more than a deduction, so they have tried to use that concept with regard to the costs of the suit. I call that Is that net or net, net? It doesn t work here. Continued on next page
March/April 2015 Page 15 Continued from page 2 Jurors. Next Tom Dickson, of North Dakota, will discuss Creating a Civil Practice from Criminal Defense Work, plus give an update on oil and gas law issues. Thursday afternoon kicks off two new traditions: The first annual Golf Tournament and first annual Texas Hold em Poker tournament. Thursday night will host the 2 nd Annual Storytellers Contest with Gary Dordick, Tom Dickson, Nick Rowley, Courtney Rowley and Joey Low. Friday morning, Nick Rowley, Courtney Rowley, and Joey Low will present Trial by Human. Three veteran Trial Lawyers who have served as trial skills instructors though out the country will share the techniques that have led to record setting jury verdicts. Nick and Courtney will speak about approaches that bring brutal honesty and humanity into the courtroom to connect with your client, witnesses, judges, and juries. I look forward to seeing you all there. Be part of the Tradition! Continued from page 14 In Durand v. U.S. Department of Labor, 662 F. 3d 1106 (9th Cir. 2011), the attorney argued that the costs of suit should be deducted from the refund due to the United States, the Court of Appeals for the Ninth Circuit affirmed DOL s calculation of the refund due to the United States under the statutory formula set forth in 8132. agreeing with DOL that there was no ambiguity in the language of 8132 - that the costs and expenses of suit were to be deducted from the gross recovery (as clearly set forth in line 10 of the long form statement of recovery, EN1108), not from the refund amount. As I ve stated above, you can go to the internet and run the calculations yourself to develop an appreciation for its effect on the settlement of your client s case. My takeaway from looking at various scenarios and my experience as a federal workers comp practitioner is that it always works in your client s best interest to obtain as many of his workers comp benefits as possible (especially including his right, if any, to a schedule award) before the settlement of his third party personal injury claim. What s your take away from this article? Follow Mark Twain s advice: "Always do what is right. This will gratify some people and astonish the rest." Got questions? Call me - we ll discuss them. This article was written by attorney Brad Harris of the Harris Federal Law Firm. His contact information is telephone (877) 226-2723, Brad@HarrisFederal.com or see www.federaldisability.com. NOTE TO YOUR ACCOUNTANT: The NON-Deductible percentage Of your paid dues for the FY 13/14 38.65%
March/April 2015 Page 16 Continued from page 8 now provide that when a state s attorney dismisses an entire criminal case, the party who was charged can apply for expungement after one year from the date of dismissal. The decision whether the defendant s or arrested persons record will be expunged will still be up to the judge who must find by clear and convincing evidence that the ends of justice and the best interest of the public, as well as the defendant or arrested party, will be served by the expungement. It s also important to note that although a defendant s or arrested persons public record may be expunged, the non-public record available to judges, prosecutors and law enforcement will still show the arrest. Special credit goes out to Rep. Dan Kaiser from Aberdeen for bringing the bill this year. Also, special recognition should go to Lindsey Riter-Rapp, the lobbyist on behalf of the SD Criminal Defense attorneys. HB 1067 - An Act to establish maximum reproduction costs for medical records. This bill was brought by the State Bar in an effort to respond to outrageous fees various medical providers and their 3 rd party service providers are charging for medical records when requested by attorneys on behalf of patient clients. The bill proposed to limit what could be charged for medical records to ten dollars for the first ten pages and thirty-three cents a page thereafter. Although the bill made it out of committee, it was defeated on the floor of the House on a 27-41 vote. This bill attracted an enormous amount of opposition from the medical community (the big hospitals for instance) and the 3 rd party service providers. The opponents were literally hiring additional lobbying help on the fly to oppose the bill. State Bar Secretary- Treasurer Tom Barnett and I worked very hard to try to pass the bill in the House, but unfortunately, we were out manned on the floor. Rep. Lee Schoenbeck from Watertown was a strong advocate for passage of the bill, but nonetheless, it once again came down to who could put more bodies on the floor to work against the bill. This bill will undoubtedly be back again next year and we will once again work to get it passed. Thanks to all of you who sent in examples of how some of our clients are being gouged by their medical providers when asked to provide a copy of the records our clients (and their patients) have already paid for when the service was initially provided. SB 121 An act to prospectively repeal the death penalty. As I predicted in last year s Legislative Update re: HB 1183, this bill came back and would have prospectively repealed the death penalty. Like last year, there were a number of traditional opponents to the death penalty and former Attorneys General Mark Meierhenry and me again. Although the bill was started in the Senate this year instead of the House, the result was the same in the end - the bill was killed on 7-2 vote. I m told by the initiators of the bill that we will see this bill back next year. HB 1105 - An Act to provide for an affidavit creating a rebuttable presumption that a person is not an employee for purposes of worker s compensation and to provide a penalty therefor. This Bill creates a new section in our worker compensation statutes found in Chapter 62-1. In effect, it allows an independent contractor who is not an employer and is not a general contractor and is not covered under a worker s compensation insurance policy to sign an affidavit of exempt status under our worker s compensation statutes. The affidavit creates a rebuttable presumption that the affiant is not an employee for the purposes of our worker s compensation act and the person holding the affidavit is not liable for a worker s compensation claim made by the affiant or any subcontractor of the affiant. The bill goes on in section 2 to prescribe the essential elements of the form of the affidavit which is to be prescribed by the director of the Division of Insurance. The bill also prescribes a penalty for anyone who solicits or provides false information on an affidavit of exempt status, making it a Class 2 misdemeanor. The bill sailed through the House, after it was amended into its present form, on 65-4 vote. It passed the Senate on a 34-0 vote. HB 1221 An Act to authorize no-fault divorce in the state. As the name implies, this bill would have authorized no-fault divorce in South Dakota and would have obviated the requirement that both parties consent to the use of irreconcilable differences as grounds for a divorce. The bill barely made it out of the House Judiciary committee on a 7-5 vote, but it was defeated on the floor of the House on a 25-44 vote. In closing I would once again like to thank all of you who took the time to comment on specific legislation. Although this year was not a successful year for our flagship piece of legislation (HB 1103), we did make our presence AND our mission known to the Legislature. Hopefully, in the years to come, whether it s with me as the lobbyist for this organization or someone else, we ll continue to fight the good fight for the folks we represent. It s important to always remember that the little guy doesn t have a lobbyist in Pierre and so often times we need to take up the cause on his behalf. Thank you to Sara for keeping the Legislative Update up-to-date and forwarding the questions and comments that come in while I m in Pierre. Thank you to all of you for allowing me to act as your lobbyist once again this year. Lastly, thank you to my wife, Marya, for putting up with me being gone for the better part of two months in the dead of winter while I get to do something I so thoroughly enjoy! :0)
March/April 2015 Page 17 Continued from page 6 wait until you are less busy. Now, you have to come up with something else. It is better and more efficient if you just state that you cannot take this case and that if you would like a referral, you could give him one. Attorneys always worry that they will never get another case if they turn one down. Change that thinking. There will be more business that comes your way and if it is something that you are interested in, are good at and have time for, you will decrease your stress level and increase your happiness as an attorney. And, remember, no, is a complete sentence. SOUTH DAKOTA TRIAL LAWYERS ASSOCIATION Board of Governors Conference Call Minutes February 11, 2015 On the call: Steve Beardsley, Margo Julius, Stephanie Pochop, Nate Oviatt, Clint Sargent, Tim Rensch, Aaron Eiesland, Alecia Fuller, Ryan Kolbeck, Casey Fideler, TJ Von Wald, Stanton Anker, Robbie Rohl, Kasey Olivier, Mike Beardsley and Sara Hartford. Also on the call, Lobbyist Tellinghuisen and Barrister Editor Tellinghuisen. A quorum was present. President Elect Beardsley asked for approval of the September 25 minutes. Pochop made a motion to approve as presented, Kolbeck seconded. Motion unanimously carried. Julius gave the treasurer s report. Account balances are $28,537 in Operations, $25,005 in Savings, $5,109 in the Reserve Fund and two CDs for $10,000 each. The PAC account has a balance of $6,345. Fideler made a motion to approve the treasurer s report, Von Wald seconded. Motion unanimously carried. Under old business, Sargent gave an update on the proposed new Rule 100 of the SD Civil Procedures, Expedited Civil Actions committee and their proposed amendments to the rule drafted by the committee. There was discussion. Sargent made a motion for the SDTLA Board of Governors to support the rule change with amendments, Pochop seconded. Motion unanimously carried. Under new business, Tellinghuisen gave a report on the bills he is lobbying on behalf of SDTLA. Of note are the contributory negligence bill, the expungement bill, medical records copying costs bill and the work comp bill to have subcontractors file an affidavit of exempt status on jobs among many others. See legislative tracking list week 5. Hartford announced speakers are being recruited for the Spring Annual Seminar to be held April 30-May 1 at the Grand Falls Resort. The next Board meeting is Thursday April 30, 2015 at 8 am Central at the Grand Falls Resort. Meeting adjourned. Toast of the Trial Lawyer Award Nominations Being Sought The SDTLA Board of Governors is accepting nominations for the Toast of Trial Lawyers annual awards selected from member nominations. SDTLA is seeking nominations for lawyers who deserve special recognition for an act or acts of outstanding service to their community, profession or client(s) over the past year. The awards are given each year at the Annual Meeting in June. Multiple recipients are possible. Please send a letter with a brief synopsis of your nomination's exceptional service or representation for use by the selection committee, which is made up of five SDTLA members appointed by the president. Nominations must reach the SDTLA office by May 1, 2015 to be considered. Mail them to SDTLA, Trial Lawyer Toast Award, PO Box 1154, Pierre, SD 57501-1154 or email to sdtla@mncomm.com.
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