Farmers’ claim against Aurora County on hold as insurance dispute goes on

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PLANKINTON — Aurora County won’t face a new trial for damages in a lawsuit involving Thompson Farms until another suit with the county’s liability insurer is resolved.

Circuit Judge Bruce Anderson rejected a motion to lift a stay on a new damages trial, according to a court document filed Wednesday. The trial will determine damages owed to a family that lost its farm because of a county zoning law adopted in 1998.

Sioux Falls lawyer Mark Meierhenry, who represents Thompson Farms, filed a motion to lift the stay and a hearing occurred in Armour on Nov. 18.

He said recently he was disappointed with Anderson’s ruling and is growing concerned that witnesses could die before he is able to start preparing for the trial.

The trial had been put on hold while litigation involving the county’s liability insurer, the South Dakota Public Assurance Alliance, proceeds. During this time, Meierhenry cannot prepare for the trial, and he anticipated filing a motion to lift or amend the stay to preserve witness testimony.

Meierhenry said in December that the case had been halted for more than a year.

“The problems here are not the problems of my client,” he said. “The county and the insurance company had plenty of time to settle their differences.”

The Thompson suit against the county was filed in April 2002 and sought $5.6 million in damages, said Roy Wise, an Aberdeen attorney representing the Alliance. That’s a potential indication of the damages award that Aurora County and its taxpayers could be saddled with.

Naomi Cromwell, a Pierre attorney who represents the county, said she and her client believe Anderson’s ruling was appropriate given the situation.

“We believe that in South Dakota, matters of insurance coverage should be determined before an underlying lawsuit moves forward,” she said.

Cromwell noted that the ruling is a matter of fairness to the parties involved to know whether there is insurance coverage and who will be responsible for paying for the defense of a civil matter, as well as any potential liability before an underlying lawsuit moves forward.

As for whether the county would object to Meierhenry’s plan to amend the stay to preserve testimony, Cromwell said that would depend on the motion that is filed.

The formal discovery process has been delayed with Anderson’s ruling, and she believes the judge is correct in maintaining the stay on a new trial.

The trial will be on hold while the county waits for the state Supreme Court to hear an appeal in its case with its liability insurer.

Brad Gordon, a Spearfish lawyer representing the county in that case, filed the appeal in November of Circuit Judge Sean O’Brien’s judgment dated Oct. 15.

O’Brien deemed the Alliance had no duty or obligation to defend the county in the lawsuit against Thompson Farms or secure it against any financial damages the county would be ordered to pay.

After a jury found last August that the county’s insurer was not liable for whatever damages might be awarded, Gordon filed two motions seeking to overturn the liability decision.

But O’Brien denied them both at a hearing last September.

In the appeal, Gordon cited 16 issues he is asking the high court to consider.

Those issues include whether the trial judge made a mistake in denying the county’s motion for a mistrial and alternative motion for a new trial in September, whether jury instructions were incorrect and prejudicial, whether the judge abused his discretion in allowing a plaintiff’s witness to testify and prohibiting the defense’s expert from testifying.

Gordon did not return calls seeking comment.

Deb Thiry, Aurora County court clerk, said it could take six months to a year for the court to hear arguments on the appeal.

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