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SD Supreme Court to consider cases from Hanson, Davison and Douglas counties

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The South Dakota Supreme Court has listed area cases concerning a 2014 crash, a habeas corpus denial and an insurance company's decision as those it will consider on its January and February schedules.

Those cases originated in Hanson, Davison and Douglas counties, and a party in each case has appealed the circuit court's original decision.

The price tag on pain and suffering

The court included on its January calendar a Hanson County case brought by Gene and Clarissa Weber against both the driver of a truck involved in a crash with Gene Weber and that driver's employer.

The case went to trial last February, but the defendants have since motioned for a new trial.

On Jan. 9, 2014, Gene Weber was driving his pickup south on S.D. Highway 25. Gerald Rains, an employee of the Sergeant Bluff, Iowa-based K&L Construction, Inc., was driving a semi-tractor/trailer south at the same time, traveling about 8 mph faster than Weber. According to the Webers' initial complaint, filed in October of 2016, and law enforcement findings, Rains crossed the road's centerline and struck Weber's truck, causing it to spin around and go into the east ditch.

The Webers argued that Rains had driven in a negligent manner and that that negligence led to Weber being injured and experiencing "physical pain and suffering, mental anguish, lost wages, loss of enjoyment of life, disability and disfigurement," as well as incurring medical expenses. They brought similar claims against K&L Construction, as Rains' employer.

A Hanson County jury determined on Feb. 22, 2018, that the Webers be awarded a total of $900,000. Of that, $813,480 was awarded for Gene Weber's pain, suffering and mental anguish, $31,000 was for future chiropractic expenses, $35,520 was for wages lost in the past and future for attending medical appointments and the remaining $20,000 was awarded to Clarissa Weber for time and experiences lost with her spouse.

On March 15, the defendants filed a motion for a new trial, arguing that the amount the jury awarded for pain and suffering was excessive and that expert testimony given during the trial differed significantly from the information previously disclosed by the plaintiffs.

That motion stated that the jury had awarded Weber more than $800,000 "for pain and suffering for a soft-tissue injury, for which the jury determined his future medical care will total just over $33,000, and for which he has only ever taken over-the-counter pain reliever."

The defense's second claim is that none of Weber's medical records prior to the trial indicated that he had a permanent cervical facet injury, and that meant that when a doctor testified at trial that Weber's injury was permanent, the defense was unable to counter with expert testimony. The motion includes the statement that the failure to disclose expert opinions was "nothing short of trial by ambush."

The Webers filed a brief in opposition to the defense's motion on March 23, asserting that the motion was only made "in an attempt to get a second bite at the apple" and that the defense "simply underestimated the strength of Plaintiffs' case."

That brief argued that the defense was only looking at one part of the evidence — doctors' testimony — rather than the full scope of information given at trial, and that the defendants' insurance company, knowing that sending cases to trial rather than admitting fault leads to fewer cases against their clients, was "used to pushing people around and minimizing the value of claims."

A hog barn and an insurance claim

The other area case on the Supreme Court's January calendar is that of Delray Geidel against De Smet Farm Mutual Insurance Company of South Dakota.

Geidel's case was filed after separate action was taken against him in 2014, and his case deals with the insurance company which denied coverage in connection with the case brought against him.

Geidel had allowed Cedar Creek Feeders, LLC, to use a part of his Douglas County property to build a commercial hog barn near the intersection of Highway 44 and 399th Avenue.

Members of the Fink family, who owned residential property near the hog barn, said that the smells and noises coming from the hog barn were extremely noticeable from their property, causing a nuisance and decreasing their property value, and they filed a suit against Geidel.

A Douglas County jury found in favor of Geidel on Oct. 14, 2016.

Geidel's complaint stated that De Smet Farm Mutual had breached the terms of his contract by not defending him in the Finks' action and that the insurance company did not have a reasonable basis for denying coverage, resulting in damages for Geidel. He demanded a trial to determine how much he was owed in legal expenses, interest and compensation for breach of contract and bad faith denial.

Circuit Court Judge Bruce Anderson granted summary judgment in favor of the insurance company on April 25, 2018, dismissing the case and ordering Geidel to pay $11.35 to De Smet Farm Mutual for the insurance company's defense costs.

Geidel appealed that summary judgment to the Supreme Court on May 22, asking the court to determine whether the insurance company does actually owe him something for his claim.

A question of habeas corpus

On the Supreme Court's February calendar is the Davison County case of a man who was sentenced to a year in prison and who says that his rights were violated during the criminal case's proceedings.

In the case of Russell Wright v. Darin Young and/or Bob Dooley, warden of the South Dakota State Penitentiary, Wright was convicted of grand theft in Davison County on Sept. 22, 2016, and received a sentence that didn't include prison time. He then violated his probation by missing appointments with his court services officer and was sentenced on Feb. 21, 2017, to five years in the state penitentiary with four years suspended.

Wright submitted a writ of habeas corpus, asserting that his rights had been violated by the court because the court did not establish a clear factual basis for his crime and because his attorney was ineffective. He argues that the evidence given prior to sentencing was not enough to establish that he committed the crime of which he was convicted.

Circuit Court Judge Patrick Smith concluded that Wright's case did not meet the requirements for habeas corpus relief, in part because he didn't think there had been an issue with Wright's attorney and that Wright knowingly pleaded guilty to his charge but didn't provide enough evidence that he should be allowed to essentially withdraw that plea.

At Wright's request, Smith issued a certificate of probable cause, which is necessary to appeal the case to the Supreme Court, and Wright is now appealing the order by Smith quashing the writ of habeas corpus.