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Schoenbeck Law, P.C. | South Dakota (SD)

Personal Injury, Insurance Bad Faith Litigation, Commercial Litigation, Professional Negligence

Toll Free: 888.204.0561 - Experience. Trust. Success.

Recent Developments

Below you will find a summary of some of the recent developments in cases successfully litigated by Schoenbeck Law, PC as well as some of the previous cases successfully litigated as a sample of our experience and success in the cases accepted by our firm.

The areas of practice litigated include:

Personal Injury  |  Insurance Litigation  |  Commercial Litigation  |  Professional Negligence  |  Estate Planning Litigation

Personal Injury

Schoenbeck Law wins a favorable decision for Rita Fix in the South Dakota Supreme Court in Fix v. First State Bank of Roscoe

November 30, 2011 - The South Dakota Supreme Court in Fix v. First State Bank of Roscoe, Appeal No. 25898, returned a favorable decision for Rita Fix, a client of Schoenbeck Law.

A Faulk County jury had already found that First State Bank of Roscoe and the Edmunds County State's Attorney conspired to abuse process by threatening felony charges against this elderly Faulk County lady. The Supreme Court determined that the emotional distress damage instruction given to the jury was incorrect, and that a retrial was warranted on the question of damages. The matter settled before the retrial.

Day County jury returned a $300,000 verdict, March, 2002

March, 2002 - A Day County jury returned a $300,000 verdict for a local farmer for back injuries arising from a 1999 car accident. At that time, it was the largest verdict ever returned in Day County, and it reaffirms that local juries understand what a back injury means in the life of a farmer. LeMars Mutual was the defendant, and urged the jury to return a zero verdict. Additionally, the court made a very significant ruling in the area of expert testimony. The defense utilized Dr. Suga, an orthopedic surgeon from Sioux Falls, to do an "independent medical evaluation." It is our contention that these types of evaluations generally are not independent, and in this case the evaluation was not independent.

Our client contended that the doctor only examined him for 9 minutes and 46 seconds, and had used a stopwatch at the evaluation to prove it. The doctor said that he had done the evaluation in 30-45 minutes, and that it took that amount of time to properly do the evaluation. At a pre-trial hearing where the court had the opportunity to listen to other people who have also been evaluated by Dr. Suga, and heard them testify to similar experiences, the court found that our clients were more credible, that the doctor didn't spend the amount of time he claimed, and so the doctor lacked the foundation to testify--given that the doctor said it took 30-45 minutes to properly do an evaluation to render the opinions he chose to render. The court excluded Dr. Suga's testimony.

Clausen v. Aberdeen Grain Inspection, Inc. and South Dakota Wheatgrowers Association

June 1999 - In Clausen v. Aberdeen Grain Inspection, Inc. and South Dakota Wheatgrowers Assoc., 1999 SD 66, 594 NW2d 718, the South Dakota Supreme Court ruled in favor of our client in a wrongful death action. Clausen was commenced after our client's husband died after falling while removing grain samples from atop a railcar. The Trial Court dismissed the claims against Aberdeen Grain Inspection and South Dakota Wheatgrowers, holding they owed no duty to the decedent because he was an independent contractor.

On appeal, the South Dakota Supreme Court reversed the Trial Court's decision as to Aberdeen Grain Inspection. According to the Court, "it is clear that there is a genuine issue of material fact as to whether AGI retained any control over [the decedent] as to remove it from the general rule of employer non-liability." The first jury trial on the claim against Aberdeen Grain Inspection resulted in a hung jury, and the matter settled favorably before the second trial.

Wegleitner v. Town of Lake City

(1998 SD 88), Wegleitner v. Town of Lake City was the last dram shop case decided by the South Dakota Supreme Court. We represented a deputy sheriff who was rear-ended by a drunk driver. In the litigation, we settled with the drunk driver for his policy limits.

The Trial Court dismissed the city-owned bar for the lack of a dram shop cause of action in South Dakota. We appealed. In a 3-2 decision, the Supreme Court affirmed, nailing the coffin on the dram shop causes of action in South Dakota.

Wegleitner v. Hartford Insurance

After the South Dakota Supreme Court's refusal to permit a dram shop cause of action, we tried a jury trial in Marshall County against the underinsurance carrier on October 1, 1998, and obtained a verdict of $600,000 for our client. At that time, it was the largest verdict in the history of Marshall County.

Insurance Litigation

Schoenbeck Law settles an insurance bad faith suit against National Farmers Union for $425,000

February 2012 - Schoenbeck Law settled an insurance bad faith suit against National Farmers Union for $425,000. NFU is owned by an Australian conglomerate, QBE. NFU was using a method of adjusting property claims that cheated their insureds.

Our specialty is in digging through the company's practices and procedures to find methods they use to deny their insureds what they properly owe. NFU was using excess depreciation, and failing to offer profit and overhead (10 & 10), to deny their insureds the full benefit of their insurance contract.

Schoenbeck Law obtains $2.4 million verdict against Nationwide

May 30, 2012 - In Day County, South Dakota, a jury returned a 2.4 million dollar bad faith and breach of insurance contract verdict against Nationwide Insurance. We tried the case over a two week period. The jury was unanimous. Nationwide's use of improper training and incentives with claims personnel was before the jury. The verdict included one million in punitive damages, and is the largest verdict in the history of Day County.

The case arose when a competitor sued two small businessmen who were supposed to be protected by their commercial general liability insurance policy, sold to them by Nationwide. Nationwide wrongfully refused to defend, and subjected these small businessmen to an expensive and risky litigation exposure. The jury had no trouble seeing the evil in Nationwide's conduct toward their insureds.

Our office specializes in handling disputes with insurance carriers. We particularly appreciate the opportunity to review denials of coverage. Our experience is that a high percentage of claims are wrongfully denied by insurance carriers.

Post-Claim Underwriting Found In Newborn's Life Insurance Policy

Schoenbeck Law completed an insurance bad faith claim against a company in 2008 that provided life insurance for newborns. In this case the child died within a few months of birth, and the company refused to pay the death benefits. When the mother submitted the life insurance claim, the company proceeded to underwrite the risk for the first time.

Now with the child already deceased, the company decided to not accept the risk and returned the premium to the grieving mother. We were successful in pursuing a bad faith suit against the company on behalf of the young mother who first suffered the loss of her baby, and then suffered the indignity of being defrauded by her life insurance company.

"Deny First" Strategy of Health Insurance Carrier Comes to Light in Bad Faith Case

Also in 2008 Schoenbeck Law exposed a "deny first" strategy of a South Dakota health insurance carrier. The carrier denied coverage for an expensive medical procedure, ignored letters and reports from medical providers, and refused to follow the health insurance policy until we sued them. In short order, we were able to make the health insurance carrier pay their bills and hold them accountable for their wrongful actions towards their insured.

Bad Faith Victory:

The South Dakota Supreme Court affirmed a jury verdict against American Family Insurance in Biegler v. American Family Ins., 2001 SD 13. The original verdict is discussed below. The Supreme Court reduced the amount of the judgment to $165,000, which resulted in a payment of over $200,000 after allowing for interest and costs.

The South Dakota Supreme Court particularly affirmed a count of deceit, which was directed at how American Family handled this claim once they got it in house. The Supreme Court described American Family's conduct as trying to "sandbag" their insured.

Jury Finds Insurance Company Commits Fraud On Small Businessman:

September 9, 1999 - A Brown County jury returned a $245,000 verdict for our client, an Aberdeen small businessman, against his insurance company, American Family Mutual Insurance Company. Three and a half years earlier, a customer was injured by an employee at the businessman's convenience store, and American Family refused to assist its insured. He was eventually sued and forced to hire his own attorney to handle the lawsuit. After settling the victim's suit, he sued American Family for abandoning him.

The jury found that American Family breached the insurance contract, committed fraud, and acted in bad faith towards its insured. Punitive damages were also awarded to make an example of the company. American Family appealed the verdict, and the South Dakota Supreme Court decision is referenced above.

Bad Faith Victory:

The South Dakota Supreme Court once again reaffirmed that an insured can sue their insurance company for bad faith in handling a claim in a case we brought before the Court (Brooks v. Milbank Insurance Company, 2000 SD 16, 605 NW2d 173). After the Court's decision, and prior to a second trial, the matter was settled. Details of the first trial decision can be found below.

In Brooks v. Milbank Insurance Company, a rental house owned by our client was destroyed by fire. The insurance company refused to pay the loss, claiming our client conspired to have the house set on fire. The only evidence inculpating our client stemmed from a recorded "interview" of one of the tenants conducted by an investigator hired by Milbank Insurance. During this "interview" the tenant was threatened with prosecution and was told "If I find out the truth, you get to go home." The tenant later testified he didn't light the fire, nor was he hired by our client to do so, and only confessed because he was threatened and thought he was going to jail.

After a five-day trial, a Roberts County jury found in favor of our client and determined the value of the house at $15,000. The Court then awarded attorney's fees under SDCL 58-12-3 in the amount of $77,287.50 because it found the insurance company acted vexatiously and without reasonable basis. We appealed a prior dismissal of the bad faith action against the insurance company. The Supreme Court reinstated the bad faith claim in a February 2000 decision. The Court also sent the attorney's fee award back to the Trial Court for review on a procedural issue. On remand, the attorney's fees were again awarded, this time in the amount of $75,437.50.

Insurance Coverage Victory:

Circuit Judge Robert Timm handed down a decision determining more than $1,000,000 of insurance coverage was available for our client and other victims. The factual setting in which the case arose is as follows:

A car accident occurred on February 14, 1998. The automobile involved was owned by a garage/convenience store. The owner of the business allowed his daughter to drive the vehicle. At the time of the accident she was a passenger. She had allowed a friend of hers to operate the vehicle. The car went off a curve and struck a utility pole. Two of the passengers, including the vehicle owner's daughter, were severely injured.

The vehicle owner had a standard garagekeeper's policy with Employers Mutual Casualty Company (EMC) with $1,000,000 liability limits, which had the appropriate boxes checked to provide coverage for "any auto." In purchasing personal auto insurance, the same insurance agent placed this business vehicle on a personal automobile insurance policy.

EMC contended that there was no liability coverage for personal use of the vehicle, and that this inventoried vehicle from the used car dealership part of the business was not disclosed to the company at the time the insurance was procured. EMC also contended that SDCL 58-23-4 put the garagekeeper's policy in the third position for coverage. State Auto contended that the family exclusion applied, barring any coverage for the owner's daughter, and that State Auto should be in the last position as to insurance coverage. American Family contended that there was coverage, but that the driver's carrier should be in the last position as to priority.

The Court determined that in the application process, the insured had disclosed the existence of the used car dealership. There were documents in EMC's file that supported this conclusion.

The Court also determined that there is no implied exclusion for personal use in a standard garagekeeper's policy. There clearly was no express exclusion, so an implied exclusion was the only basis the insurance company could utilize.

The Court determined that the family exclusion limitation in the personal auto policy providing coverage for "named insureds" includes those people covered by SDCL 58-23-6(5).

Finally, with respect to the garagekeeper's priority statute, SDCL 58-23-4(2), the Court found priority in the following order: the personal coverage on the vehicle was first; the coverage of the driver was second; and the garagekeeper's coverage was moved into the last position as a result of the above-noted statute.

The net effect of the decision was to provide an additional $1,025,000 of coverage for the victims of the accident.

Insurance Dispute Victory:

July 15, 1998 - The South Dakota Supreme Court handed down a favorable decision in Rumpza v. Donalar Enterprises and Stockholm Farm Mutual Ins. Co., 1998 SD 79, 581 NW2d 517 (Rumpza II). The decision was another step in an insurance dispute we had been pursuing for five years, and which had been previously considered by the Supreme Court, resulting in a decision expanding the law in South Dakota concerning insurance agents' liability for professional negligence. Rumpza v. Larsen and Stockholm Farm Mutual Ins. Co., 1996 SD 87, 551 NW2d 810 (Rumpza I). In Rumpza II, the Supreme Court, for one of the first times, found an ambiguity in an insurance contract, and ambiguities are to be construed against the insurance company under longstanding legal precedent.

The Trial Court had dismissed our action on summary judgment, and in both instances the Supreme Court reversed the Trial Court's decisions and sent the matter back for trial. One week after Rumpza II was handed down, Stockholm Insurance settled the matter by paying the entire claim, five years' of accumulated pre-judgment interest, all of the attorney's fees that had been incurred, and damages for its bad faith conduct.

Bad Faith Litigation with Safeco Insurance:

In a Roberts County case in the Fifth Judicial Circuit against Safeco Insurance Company, we obtained a favorable verdict on the underlying personal injury case, and pursued Safeco for their unreasonable conduct in handling the claim. In that setting, it is an examination of whether the company acted reasonably in denying the claim, and it is a review of why they acted the way they did.

The trial court required Safeco to produce their claims file, the information concerning incentive plans and bonuses for their claims personnel, claims training materials and manuals, and a list of all prior cases in which Safeco had been sued in South Dakota for fraud, breach of fiduciary duties, or bad faith. In the first trial the court awarded attorney's fees in the amount of $21,243.80, and for the second trial the court ruled that the company's conduct warranted proceeding with a claim for punitive damages. The bad faith claim was settled prior to the second trial.

Commercial Litigation

Federal District Judge Affirms Award of Attorney's Fees and Punitive Damages of $209,605.77 Against First State Bank of Roscoe and Its President, John Beyers

March 30, 2017 - After the Supreme Court affirmed the McPherson County verdict against John Beyers and First State Bank of Roscoe, we sought recovery in Bankruptcy Court for First State of Roscoe and John Beyers' violation of the automatic stay in initiating their litigation against Brad and Brenda Stabler. The bankruptcy judge awarded $159,605.77 of attorney's fees and $25,000 of punitive damages against John Beyers and $25,000 of punitive damages against First State Bank of Roscoe, for violating the automatic stay and the manner in which they did so.

After the award, John Beyers and First State Bank of Roscoe appealed the Federal Bankruptcy Judge's decision to Federal District Court Judge Roberto Lange. On March 30, 2017, the Honorable Roberto A. Lange affirmed the bankruptcy judge's decision finding contempt and imposing sanctions.

  • Read the Court's Opinion & Order:  [PDF]
  • Read the Aberdeen News story:  [PDF]

Supreme Court upholds fraud verdict against First State Bank of Roscoe and its President John Beyers

June 22, 2015 - On Thursday the South Dakota Supreme Court upheld the verdict we obtained on behalf of an elderly farm couple that was defrauded by their bank, First State Bank of Roscoe, and their banker, John Beyers.

The South Dakota Supreme Court also reinstated the punitive damage award against the bank and banker.

Please click the PDF document link below to read the complete decision of the South Dakota Supreme Court.

  • Read the complete decision:  [PDF]
    (PDF Document. Requires Adobe Reader)

Schoenbeck Law proves bank and banker committed fraud against elderly couple

December 20, 2012 - A McPherson County jury found that a Roscoe bank and its president acted fraudulently in inducing a Eureka couple to sign a $650,000 promissory note and mortgage in March 2004. The jury decided that $439,100 of the note and mortgage was obtained by fraud.

First State Bank of Roscoe and John Beyers, the Bank's president, conspired together to defraud Stanley and Rose Marie Stabler, the jury ruled, according to the verdict sheet.

The Bank and Beyers added some of the Bank's bad debt to the note and mortgage the Stablers signed, said Lee Schoenbeck, the couple's attorney. The Stablers weren't responsible for the $439,100, so that debt against them will be canceled, he said.

Banks Are Entitled To Be Treated Fairly Too

September 11, 2008 - Schoenbeck Law had the honor and pleasure of successfully completing 2½ years of representation of an established South Dakota commercial institution in a banking litigation case involving a participating lending arrangement. Near the end of the litigation, we prevailed on a series of summary judgment motions. The Honorable Stuart Tiede's 54-page decision, which is a treatise on many current commercial litigation issues, can be read below.

Investment Banking Dispute

February 25, 2002 - The United States 8th Circuit Court of Appeals handed down a win in an investment banking dispute involving a client of our office who assisted a meatpacker in obtaining financing for a meatpacking plant. After the financing was obtained, the meatpacker refused to pay the success fees on the contract. In the 8th Circuit's decision, there were a couple of particularly significant results. Our client was awarded all of the balance of the fees owing on his contract, plus prejudgment interest. Additionally, the 8th Circuit reversed the District Court and ordered the enforcement of the contract provision which provided that our client was to receive the attorney's fees and collection costs he expended in enforcing the contract. The 8th Circuit Court of Appeals found that South Dakota law permits enforcement of negotiated contract provisions like this one.

Securities Fraud

The South Dakota Supreme Court handled its first case on the Uniform Securities Act in: Tschetter, et al. v. Berven, et al., Beadle County Civ. File No. 97-87. The case arose out of actions by the promoters of a Country Kitchen investment in Huron, South Dakota. The Trial Court had allowed that breach of fiduciary duty, fraud, and punitive damages can go forward at trial. The appeal focused on the issues that had been dismissed by the Trial Court.

The South Dakota Supreme Court in Tschetter v. Berven, 2001 SD 11, determined that the LLC investments were not securities, and that there was no duty to perform a suitability assessment. The fraud and breach of fiduciary duty issues were settled after the appeal and prior to trial.

Professional Negligence

Attorney Malpractice and Breach of Fiduciary Duty

May 2, 2014 - A Grant County jury returned a verdict for $150,000 of principal and pre-judgment interest of approximately $45,000, for a total judgment of $195,000 in an attorney malpractice and breach of fiduciary duty case. The case was Harms v Boos.

The jury took two hours to decide the verdict amount. The allegations included that the attorney negligently changed a business purchase from an asset purchase to a stock purchase, and mailed the funds to the other side without setting up a closing.

Attorney Malpractice

We had the opportunity to be brought in as co-counsel in an attorney malpractice case where the trial judge ruled that the attorney's conduct was such that it was appropriate to go forward with discovery on a claim for punitive damages. In South Dakota, you can only go forward with a claim for punitive damages if you can make an initial showing that there is a reasonable basis to believe that the defendant's conduct was willful, wanton, or malicious.

In Friske et al v. Hogan, 2005 SD 70, the South Dakota Supreme Court, on June 8,2005, ruled for the clients of Schoenbeck Law Office that an attorney may owe a duty to a non-client third party, which ruling builds on the Supreme Court decision entered in Chem Age Industries, Inc. v. Alan F. Glover, 652 N.W.2d 756, 2002 SD 122, which is discussed below.

Until now in South Dakota, an attorney who didn't do the work necessary to achieve his client's estate planning objectives wasn't accountable to the surviving family members that were the victims. Since the problem only arises after the client dies, and if the victims can't sue the attorney, one court described this scenario as being able to bury your mistakes!

This case put South Dakota squarely with the majority of states that hold attorneys responsible when they are negligent in doing wills and estate planning documents. The victims in this case lost half of the family farm that their father was trying to leave them. The farmer hired an attorney who drew a will to leave the farm to the children. Instead, half of the farm went to somebody else. The surviving children sued the attorney. The attorney wanted the case tossed out, claiming he owed no duty to the intended beneficiaries of the will he drew. The Supreme Court said he did. This is a decision that is good for the public and for the bar association. It holds professionals accountable for the work they are hired to do, encourages good legal work and punishes shoddy legal work.

Our office prevailed in a decision handed down by the South Dakota Supreme Court on attorney malpractice: Chem-Age Industries, Inc. v. Alan F. Glover, 2002 SD 122. The trial judge had dismissed the suit on summary judgment, and our clients appealed. On appeal, the Supreme Court permitted the case to go forward to trial on claims of negligence, aiding or assisting the breach of fiduciary duty, conversion, and exemplary damages.

Accountant Malpractice

Our office completed an accounting malpractice case which also obtained a favorable ruling from the trial court permitting us to go forward with a punitive damage claim against the accountant. Specific facts were presented to the trial court that showed a reasonable basis to believe that the accountant's conduct was willful, wanton, or malicious. In accounting negligence, the defense typically claims that the accountant wasn't asked to do an audit, and therefore is not responsible for the failure to notice or report any information concerning irregularities. This litigation was favorably resolved because we were able to show that the accountant knew or should have known of gross irregularities in the financial affairs of the business, and yet the accountant did nothing to warn the owners of the business.

The trial judge had an opportunity to rule on a number of the traditional defenses asserted by accountants in these types of cases. Both the assumption of the risk and statute of limitation defenses were stricken. The claim that the losses were due to third-party misconduct was limited to the instance where the accountant would have to show that the sole cause of the loss was the third-party misconduct. With respect to the usual accountant defense of contributory negligence on the part of their client, the court only allowed the defense to go forward because South Dakota is a comparative negligence state. Those states that use contributory negligence do not allow this defense.

Medical Negligence

In a Day County, South Dakota, medical negligence case we represented a victim of unnecessary multiple back surgeries. The victim had a non-operative compression fracture, but had the misfortune of being treated in the Avera St. Luke's emergency room by Dr. Britt Borden, a neurosurgeon. The patient had a non-operative compression fracture, but Dr. Borden told her that she needed back surgery. Comparing the films taken post-surgery to the operative notes, he put hooks and rods two levels off on each side of her back, and put them out on her ribs not on her spine! The effect of being two levels off on the back created leverage at the compression fracture site, and broke her back over the next couple of weeks.

A number of the rulings in the litigation are particularly interesting. The hospital and doctors tried to keep the litigation out of the county where the victim lived, but the trial judge held tough on venuing it in Day County, South Dakota. The trial judge ruled that it was permissible to proceed with punitive damage discovery against Dr. Borden, after the preliminary evidence was presented to the court. The trial judge refused to let the defendants subject the victim to multiple defense medical exams, ruling such treatment of this victim was unnecessary.

Particularly important in these types of cases is access to the checkered past of the provider, like Dr. Borden. Both the doctor and the hospital went to great lengths to try and keep that information from the victim and the jury. The trial court ruled that the National Practitioner Data Bank information on Dr. Borden had to be produced, and that the information Dr. Borden provided to licensing agencies in other states had to be produced. The defendants attempted five separate appeals to the South Dakota Supreme Court to deter the victim or to suppress evidence. Each of the five efforts was denied by the Supreme Court.

The case ultimately settled prior to trial. Two South Dakota newspapers reported on this case. The Sioux Falls Argus Leader published “A Culture of Silence” on March 29, 2004, which you can read in PDF format here. Another article was published in the Aberdeen American News, on November 15, 2003, entitled "Waubay Couple Suing Doctors, Hospital" which you can read in PDF format here.

Estate Planning Litigation

Brown County Judge Awards Client $504,923.52 Of Wrongfully Taken Funds

March 21, 2017 - At the end of the first day of a trial before Judge Portra in Brown County, the Judge granted our motion to require the return of $504,923.52 funds to a conservatorship.

During the conservatorship, all of these funds were placed in accounts at the First State Bank of Roscoe by John Beyers, or people acting on his behalf at the bank. Beyers was the power of attorney for the elderly gentleman in the conservatorship. All of these funds were then made payable to the conservator upon the elderly person’s death! The funds should have gone into his estate, and eventually to his son.

The Court ordered the conservator to return the funds to the Estate, because the conservator had a duty by court order to control and manage the funds. A conservator can’t self-deal, and a conservator can’t delegate the power to somebody to act on her behalf in this fashion. After the Court’s ruling the smaller issues were dropped and the case settled for the amount the Court ordered. There will be on appeal.

Codington County Jury Awards $92,617.22 Judgment on Joint Accounts to Estate

January 7-8, 2016 - After a two-day jury trial, a Codington County jury ruled for our client, the Personal Representative, in recovering two joint accounts. The niece had been added to the aunt’s joint accounts for convenience purposes. When the aunt died, the niece kept the accounts. We were successful in obtaining a judgment against the niece for $92,617.22.

Joint accounts are a frequent source of dispute. The problem is whether or not the deceased owner of the account intended the person who they added to become the owner, or just to be able to sign checks for their elderly relative.

Codington County Jury Upholds Last Will and Testament

July 17, 2015 - In a Codington County jury trial, we were successful in defending the wishes of a testator reflected in her last Will and Testament that was signed near the very end of her life. The last Will and Testament left the bulk of her estate to charity. Two nieces challenged the Will alleging undue influence, lack of a sound mind, mistake, and insane delusion.

After a three-day jury trial, we were able to convince the jury that none of these were true. The challengers had as their key witness the leading neuropsychologist expert witness in the region, Dr. Rodney Swenson from Fargo, North Dakota. We were able to successfully cross-exam Dr. Swenson, and utilize the testimony of local witnesses and local doctors who could better describe the condition and the wishes of the decedent.

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