Opposition lawyers in suit now helping Aurora County recoup money

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PLANKINTON — Aurora County is facing millions of dollars in costs from recent litigation. In an odd twist, two of the law firms that opposed the county and racked up many of those costs are now trying to help the county pay some of the bills.

Richardson, Wyly, Wise, Sauck & Hieb LLP, of Aberdeen, plans to file a lawsuit in a few weeks claiming Twin City Fire Insurance Company had an obligation to defend Aurora County in the E.L. Thompson Farms zoning lawsuit. The firm previously represented a public assurance alliance, which successfully sued the county to avoid paying claims associated with the lawsuit.

Attorneys Roy Wise and Jack Hieb attended a recent County Commission meeting to present the idea of recouping attorney fees and prior insurance coverage. Aurora County State’s Attorney John Steele also attended.

“They approached us, actually, to handle the case on a contingency basis at no fee to the county,” Steele said of the lawyers. “So we felt like it was a win-win.”

The lawyers would take cuts of any settlement that is reached, though.

Hieb, who did not participate in the insurance lawsuit even though his firm was involved, examined the Twin City policy and Wise contacted Steele in early January.

“Hieb was of the opinion they (Twin City) had an obligation to defend us and believed they breached that,” Steele said.

Hieb and Wise also gave some credit to Mark Meierhenry, of Meierhenry & Sargent LLP, Sioux Falls, for the idea, Steele said. Meierhenry is a former South Dakota attorney general.

At the time of the original Thompson Farms lawsuit in 2002, which was sparked by a 1998 zoning ordinance that improperly prohibited the dairy farm from expanding its herd, the county’s insurance carrier was Twin City Fire Insurance Company, a subsidiary of The Hartford. The county switched to the South Dakota Public Assurance Alliance while the Thompson Farms lawsuit was ongoing.

Meierhenry & Sargent LLP represented E. L. Thompson Farms, and Richardson, Wyly, Wise, Sauck & Hieb LLP represented the South Dakota Public Assurance Alliance.

In the midst of the Thompson Farms lawsuit, the alliance sued the county, claiming it wasn’t liable to pay damages arising from the zoning dispute because it hadn’t been notified of the lawsuit in a timely manner by the county. The county lost two trials against the alliance and was therefore put on the hook to pay damages in the Thompson case.

A jury decided the county should pay the Thompsons $600,000 following a July 2012 trial and, instead of pursuing mutually costly appeals, the county settled with the Thompson family for $1.2 million and made plans to issue bonds to come up with the money.

For both lawsuits, the county accrued a combined $1.4 million in legal expenses. Paired with the settlement, the entire saga ended up costing the county $2.6 million.

Should the county win the new lawsuit against Twin City Fire Insurance Company or settle prior to a trial, the two assisting law firms will split a one-third cut of the monetary award. If there is an appeal on the matter, the law firms will split 40 percent of the award.

“Our concern is to try to recover some of the taxpayers’ money,” Steele said.

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