Suing Over a Work Injury in South Dakota
When South Dakota law lets an injured worker sue the employer, suing a third party such as a driver or equipment maker, and what to do if the employer has no workers' comp.
Short answer: Generally no. Workers' compensation rights exclude all other rights and remedies of the worker and family against the employer and its employees, partners, officers and directors for a work injury or death. SDCL 62-3-2, 62-5-7
| Suing your employer | Generally no. Workers' compensation rights exclude all other rights and remedies of the worker and family against the employer and its employees, partners, officers and directors for a work injury or death. The statutory exception is rights and remedies arising from an intentional tort. An employer that failed to secure coverage is treated as having elected not to operate under the law, and the worker may sue it (see uninsured employer). Source: SDCL 62-3-2, 62-5-7 |
|---|---|
| Suing someone other than your employer | Yes. If someone other than the employer is legally liable for the injury, the worker may choose to claim compensation, to sue that person for damages, or to proceed against both. Any damages recovered from the third party are an offset against the workers' compensation the worker would otherwise receive. Source: SDCL 62-4-38 |
| If your employer has no workers' comp | A private employer that fails to secure workers' comp coverage is deemed to have elected not to operate under the workers' comp law. The injured worker (or dependents) may choose either to sue the employer at law for damages, or to proceed against the employer in circuit court under the workers' comp law, with benefits of the medical benefits plus twice the other compensation normally allowed. The worker cannot recover in both actions. Source: SDCL 62-5-7, 62-3-11 |
Where to get help in South Dakota
More South Dakota workers' compensation
- Filing a Workers' Comp Claim in South Dakota
- How Much Workers' Comp Pays in South Dakota
- Workers' Comp Settlements in South Dakota
- Retaliation for Filing Workers' Comp in South Dakota
- Appealing a Denied Workers' Comp Claim in South Dakota
- All South Dakota workers' compensation rules
FAQ
Can you sue your employer for a work injury in South Dakota?
Generally no. Workers' compensation rights exclude all other rights and remedies of the worker and family against the employer and its employees, partners, officers and directors for a work injury or death. The statutory exception is rights and remedies arising from an intentional tort. An employer that failed to secure coverage is treated as having elected not to operate under the law, and the worker may sue it (see uninsured employer).
Can you sue a third party for a work injury in South Dakota?
Yes. If someone other than the employer is legally liable for the injury, the worker may choose to claim compensation, to sue that person for damages, or to proceed against both. Any damages recovered from the third party are an offset against the workers' compensation the worker would otherwise receive.
What if my employer doesn't have workers' comp insurance in South Dakota?
A private employer that fails to secure workers' comp coverage is deemed to have elected not to operate under the workers' comp law. The injured worker (or dependents) may choose either to sue the employer at law for damages, or to proceed against the employer in circuit court under the workers' comp law, with benefits of the medical benefits plus twice the other compensation normally allowed. The worker cannot recover in both actions.
General legal information, not legal advice. Laws change and local rules can differ; check the linked official source or talk to a lawyer about your situation.