*1 in addition to stat- torney’s fees NORGEOT, costs, expense such an item of Plaintiff
utory Appellee, (Emphasis supplied.) not allowable. v. damages fees awarded as
Attorney’s Dakota; STATE of apart from the South Dakota are recoverable Transportation; attorney’s fees award authority governing South Dakota Division of De ed as costs. DuPratt v. Black Hills Land & Appellants, fendants and Abstract S.D. Bickle, (1966); Dodds v. S.D. pro
N.W.2d Thompson; Eugene Rowen, Francis B. L. compensation attorneys vides: “The Secretary Transportation; Charles T. counselors at law for service in civil and Larson, Highways; Director of Minne must be proceedings criminal actions Corporation; haha a Public Ma agreement, express implied, left to the or pleton Township, Corporation; a Public the parties.” Reiff; Ekeren; John R. Delmar E. Van Marlyn Holm; Maiy Schultz; V. L. Ste contracted for attor parties phanie Lawrence; Yager, and Donna ney’s agree fees. Under the terms of their Defendants. ment, attorney’s fees are collectible NBC No. 13971. facts of this Leasing damages appellee case. As for claim to Stilwells’ Supreme Court South Dakota. fees, assignment fails to re attorney’s Argued April 1983. attorney’s fees quire payment Decided June appellant Neuhauser when Stil- indemnify required wells have not been
or fees to pay attorney’s Leasing. NBC
sum, agreement did not have an
respecting attorney’s fees awarded be Myers,
low. Scherf attorney’s we held that fees
are not awardable for services rendered indemnity. Appellee
establishing attorney’s award of fees therefore
Stilwells’
fails. disposition
Due to our of the issues raised
herein, appellant’s we need not reach commercially
issue on a reasonable sale. part. reversed in part;
Affirmed
All the Justices concur. *2 Johnson, May, Doyle
Deraid W. Wiehl of Becker, Falls, plaintiff & Sioux appellee. Hoseck, Gen., Pierre, Atty. Asst.
Camron appellants; for defendants and Mark V. Gen., Pierre, on brief. Meierhenry, Atty. DUNN, Justice. appeal an intermediate from an
This is on the denying dismissal a suit basis of a defense. affirm. filed a Norgeot (appellee)
personal injury July alleg- action in of 1982 of the ing negligence part on the State Transpor- South tation, the Division of and others appear who do not before us on this inter- appeal. Depart- mediate ment and the Division shall be referred to collectively Appellee herein as the State. alleges negligence in maintain- State’s stop sign which had been removed resulted in her involvement in an automo- July Appellee bile accident on also contends as a result of the acci- dent, hospital she has incurred costs in ex- $70,000, disfigurement cess of has suffered permanently partially and is now disabled future, has, experience and will a result of the accident. earnings lost by appellee, to the claim filed pursuant filed a motion to dismiss State 15-6-12(b) alleging to that the State sovereign immunity, had not waived permitted had not sued, had not to be and that money for such a claim. appropriated dismiss, the trial the motion that the of insur- court concluded 21-32- pursuant 15 resulted in sued and consent to be listed the policy, 21-32-16. The Dakota” insured, list the as the named did not insured. The State now itself as a named trial court’s decision. asks us to review the III, 27 of the Da- Under Article Constitution, grant kota action is a qualified right. insurance purchased would be deemed The provision states that Legislature to be “for the purpose of insur- shall direct law in what manner and in ing
what brought against courts suits and employees.” Accordingly, pur- consistently any liability state.” This court has in chase insurance would waive *3 provision legis sovereign immunity this to mean that for terpreted all the enu- lative merated in the only action the means which the statute. sovereign immunity
doctrine of
can be
A primary rule of statutory con
Co.,
High
waived.
Grade
Inc.
Oil
v. Som
struction is that
phrases
words and
given
be
mer,
(S.D.1980);
eign immunity.
statutory procedure,
rules,
Applying these
we believe the trial
view,
in our
was enacted in
to our
court properly interpreted
meaning
the
in High
pur-
refusal
Grade to rule that the
effect of SDCL 21-32-15. That statute
liability
chase of
insurance
consti- provides:
governmental immunity
tutes a waiver of
The state of
the
in the absence of statutory authorization.
administration,
commissioner of
may ob-
hand,
In the case at
liability insurance
pay
public
tain and
for
liability insurance
was
with the named insured de-
extent
purposes
the
and for the
nominated as the
of
the State
expedient by
deemed
the commissioner
of
Dakota.” There is no
that
dispute
purpose
insuring
liability
for the
of
the
of
sovereign immunity
state,
officers,
was waived as to the
agents
the
its
and employ-
this,
state
named in
suit as a
ees.
result of the purchase of this insurance.
liability
purchased pursuant
The
insurance
State, however,
The
carefully excluded it-
purpose
to this statute is “for the
of insur
self from the status as named insured.
state,
officers,
ing
liability
the
its
Here, we must
the pur-
determine whether
agents
employees.”
chase of this insurance for the
plain
mean
21-32-15,
also waives
conjunc
of the word “and” is that of a
sovereign immunity for the State.
connecting
expressing
tion
the words and
the idea that the latter is to be added to or
view,
simply question
our
this is
Rapid
taken with the former.
In re
Film
statutory construction. The State believes
Service, Inc.,
181 Neb.
... for the state, officers, employ- law, agents the doctrine of they meant insur- presume apply ees” we must did to the actions them all. Had protect would the em- but did not exist as a defense for that insurance could they individually. Krug- who were sued ployees they would only parties, for selective pro- further er and Leir were remanded for .. . obtain and have stated state ceedings employ- to determine whether the insurance ... for public liability for negligent performing personally ees were insuring purpose type personal their duties. This employees.” OR whether it would be would still exist and legisla- Our function is liability policy covered a master replace tive intent. We cannot depend would State and interpreta- with an language of the statute policy. provisions *4 conjunctive phrase turn a tion which would immunity sovereign we conclude Since simply must disjunctive into a one. We case, we Was waived in this affirm at face val- legislative take the enactment motion to dismiss. ue. WOLLMAN, if the As we and HENDER- MORGAN SON, JJ., insur purchases any public liability concur. within the insuring any of the entities FOSHEIM, C.J., in result. concurs officers, agents “the phrase FOSHEIM, in (concurring Justice employees,” then the State shall be deemed Chief result). to have waived its parties pursuant all of the named majority I with the that since the course, 21-32-16.* Of waiver can be limit only through can act specific ed to a dollar amount or to specific Birhanzel, (S.D. Merrill v. in the types coverage prescribed v. Board of 1981); Plumbing Supply Co. (e.g., automobile insur Education, Etc., N.W. believe, ance). was, This we (1913); Bailey v. Lawrence in 21-32-15 phrase (1894), it would be unrea 59 N.W. pur states inconsistent to hold that sonable and the purposes chased “to the extent and for immunity employees can waive for its However, majority not for itself. apparent then leaves me. In an opinion of the statute is interpretation consistency Kruger to maintain attempt
common sense. A state can act (S.D.1982) Wilson, and for the state to v . Leir, Dakota v. for its and not National Bank immunity waive opinion illogical completely inconsistent N.W.2d 845 for itself would be a state em though We do not that even ly with the intent of the statute. concludes his acting scope within the contrary ployee to our decision deem this to be nevertheless Wilson, (S.D. immunity may employment, Kruger v. employ Dakota but not for the 1982) and National Bank of South exist for immunity is unseverable ee. (S.D.1982). If logically it then cases, endeavoring employee from the court was those unseverable immunity is also employees of follows that classify wrongs committed acting with employee to an insurance-im from the State present before the scope employment. Kruger effect. munity statutes were in * have waived the common provides: shall be deemed to 21-32-16 immunity and con- law doctrine insurance is To the extent such manner that suit in the same sented to and to the ex- party be sued. thereunder, the state tent is afforded