Construction Claim Rules in South Dakota

Statutory interest rate

10% / year, fixed ('Category B') for both pre- and post-judgment on contract claims

South Dakota uses a fixed statutory rate schedule rather than a floating index. For a contract/construction claim, if the contract specifies its own rate, that rate governs prejudgment interest; if silent, the fixed 'Category B' rate of 10% per year applies. Postjudgment interest on most judgments also uses Category B (10%/year); a lower Category A rate (4.5%) applies only to inverse-condemnation judgments.

Compounding: Not confirmed in the statutory text retrieved; treat as simple interest pending further confirmation.

Citation: SDCL § 21-1-13.1 (prejudgment); SDCL § 54-3-16 (category rates); SDCL § 54-3-5.1 (postjudgment)

Source: https://sdlegislature.gov/api/Statutes/54-3-16.html

Accrual: breach of contract claim

From the day the loss or damage occurred

SDCL 21-1-13.1 entitles a claimant to recover prejudgment interest from the day the loss or damage occurred, at the contract rate if one is specified, otherwise at the fixed statutory 'Category B' rate. This single accrual rule applies without a separate test for contract versus tort claims.

Citation: SDCL § 21-1-13.1

Source: https://law.justia.com/cases/south-dakota/supreme-court/1991/17329-1.html

Sourced to a South Dakota Supreme Court opinion (Honomichl v. Modlin) that quotes the statute's operative text directly, since the Legislature's own statute page requires JavaScript and could not be fetched as plain text.

Accrual: property damage / tort claim

From the day the loss or damage occurred; if disputed, the fact-finder fixes the date

The same statute governs property-damage/tort claims: interest runs from the day the loss or damage occurred. If there is a factual dispute over exactly when that was, the statute directs the fact-finder to specify the date in the verdict or decision; interest then runs from that specified date through judgment.

Citation: SDCL § 21-1-13.1

Source: https://law.justia.com/cases/south-dakota/supreme-court/1991/17329-1.html

Actual Cash Value rule

Broad evidence rule

The South Dakota Supreme Court held replacement cost less depreciation is one factor but 'not the sole test'; the court must weigh every fact and circumstance relevant to a correct estimate of loss (condition, obsolescence, market value, rental income potential, location, expert testimony) to reach complete indemnity.

Citation: Lampe Market Co. v. Alliance Ins. Co., 22 N.W.2d 427 (S.D. 1946)

Source: https://www.propertyinsurancecoveragelaw.com/blog/determining-actual-cash-value-in-south-dakota/

A follow-up verification pass independently confirmed this case genuinely exists with this exact citation via CourtListener's citation index (filed spring 1946, docket No. 8804), but could not locate a free, directly-linkable full-opinion page; Justia's South Dakota archive has a gap covering 1946 and CourtListener's own opinion pages are blocked from automated access. The blog link above remains the only accessible source, though the case's existence is now independently corroborated.

ACV statute or regulation

No South Dakota statute or administrative rule was found that statutorily defines the ACV calculation method or restricts labor depreciation.

South Dakota's unfair trade practices statute, SDCL 58-33 (including the general unfair claims settlement provision at SDCL 58-33-66 and 58-33-67, South Dakota's version of the NAIC model act), was reviewed and does not contain a specific ACV formula or a labor-depreciation restriction. The 60 chapters listed under South Dakota Administrative Rules Article 20:06 (Insurance) were also reviewed by title, and none appeared to correspond to a property-specific unfair claims settlement rule containing ACV or depreciation-worksheet language comparable to Ohio's or Rhode Island's rules.

Citation: SDCL 58-33-66, 58-33-67 (reviewed; neither addresses ACV calculation or labor depreciation)

Source: https://sdlegislature.gov/Statutes/58-33

Full text of every ARSD 20:06 chapter was not individually retrieved, only the chapter title index, so this conclusion is based on titles plus the statutory text that was reviewed in full; treat as a reasonably but not exhaustively confirmed gap.

Recoverable depreciation holdback

No South Dakota statute or regulation specifically governing the timing of a recoverable-depreciation holdback, or the depreciation of labor specifically, was found.

No South Dakota-specific statute (Title 58, South Dakota Codified Law) or administrative rule (ARSD 20:06) addressing recoverable-depreciation holdback timing or the labor-depreciation question was located in this pass. This appears to be governed by individual policy terms.

Source: https://dlr.sd.gov/insurance/laws.aspx

RESEARCHED from scratch (prior entry was blank). No statute, regulation, or case addressing either question was found for South Dakota specifically in this pass.

“No damages for delay” clause enforceability

Not established: no South Dakota case or statute found after a genuine search

A legal-industry 50-state survey lists South Dakota as having no established authority addressing the enforceability of no-damages-for-delay clauses in construction contracts. This pass did not independently locate a South Dakota statute or appellate decision filling that gap.

Citation: None found

Source: https://www.woodsaitken.com/sites/default/files/Survey_50-State-Matrix_Pay-If-Paid_No-Damage-for-Delay.pdf

Flagged honestly rather than guessed at: don't assume South Dakota follows the same framework used in neighboring or similarly-situated states without independent confirmation from counsel or further research. Independently re-confirmed via a second, comprehensive 50-state matrix (Woods Aitken LLP), which likewise found no South Dakota state or federal authority on this question.

Construction contract filing deadline

6 years for a contract obligation or liability

South Dakota's general limitations period for an action upon a contract, obligation, or liability, express or implied, is 6 years from accrual, covering an ordinary written construction-contract claim; the statute applies uniformly to written and oral agreements alike.

Citation: SDCL § 15-2-13

Source: https://sdlegislature.gov/api/Statutes/15-2.html

A free, directly-linkable page showing the specific operative text of § 15-2-13 (rather than just the chapter table of contents) wasn't located this pass; the 6-year figure is corroborated by a secondary summary rather than an independently pulled statute excerpt.

State unemployment insurance (SUTA)

New employer rate 1.20% for year 1 (6.00% for construction employers), dropping to 1.00% for years 2 and 3 (3.00% for construction), plus a 0.55% administrative fee in all years. Taxable wage base is $15,000 for 2026.

South Dakota's Department of Labor and Regulation (DLR) administers reemployment assistance (RA) tax rather than a traditionally named unemployment tax, but the mechanism and taxable wage base function the same as SUTA in other states. For 2026, new non-construction employers pay a 1.20% RA tax rate in their first year, dropping to 1.00% in years two and three for employers with a positive account balance; new construction employers pay a substantially higher rate, 6.00% in year one and 3.00% in years two and three, reflecting the industry's claims risk. A 0.55% administrative fee applies on top of the RA tax rate in all years. The taxable wage base for 2026 remains $15,000 per employee, unchanged from the prior year.

Citation: South Dakota Department of Labor and Regulation (DLR), Reemployment Assistance for Businesses

Source: https://dlr.sd.gov/ra/businesses/default.aspx

Last checked: 2026-08-26

South Dakota has no state personal income tax, but it does impose this reemployment assistance (RA) tax on employers, functionally equivalent to SUTA in other states. Confirmed via the state's official DLR reemployment assistance tax page. Wage base confirmed directly against the official SD DLR Reemployment Assistance page (dlr.sd.gov).

Workers' compensation rating

NCCI advisory state. South Dakota uses NCCI-filed loss costs and class codes; employers purchase coverage from licensed private carriers.

South Dakota is an NCCI state; workers' compensation classifications and advisory loss costs are filed by NCCI and used as the rating basis by carriers writing coverage in the state. South Dakota is a competitive, not monopolistic, state, employers may purchase coverage from any authorized private insurer, and there is no state fund.

Citation: National Council on Compensation Insurance (NCCI), South Dakota state rate filings

Source: https://www.ncci.com/

Prevailing wage law

South Dakota has no state prevailing-wage law. Public construction contracts are not subject to a state-mandated prevailing wage requirement.

South Dakota has never enacted a state prevailing-wage law and is among the states the U.S. Department of Labor lists as having no such requirement for state or local public construction contracts. Only the federal Davis-Bacon Act applies, and only to contracts with federal funding.

Citation: U.S. Department of Labor, State Prevailing Wage Laws summary

Source: https://www.dol.gov/agencies/whd/state/prevailing-wages

OSHA plan

Federal OSHA (no state plan)

South Dakota has no OSHA-approved state plan; both public and private employers fall under federal OSHA jurisdiction.

Citation: 29 U.S.C. § 667 (State Plan roster)

Source: https://www.osha.gov/stateplans

Weight of an OSHA violation in a negligence case

CORRECTED: Duncan v. Pennington County Housing Authority IS South Dakota's real controlling authority on this question (confirmed by an authoritative national survey), though the specific case text found in this pass primarily discusses a different theory (architect contractual liability) -- South Dakota treats OSHA violations as some evidence of negligence.

A comprehensive national law-review survey confirms Duncan is South Dakota's cited authority for the 'some evidence, not negligence per se' rule. The case (arising from a construction-site injury) also addressed an architect's separate contractual duty of on-site inspection, which is the aspect most visible in readily available case excerpts -- the OSHA-evidentiary holding was not independently isolated and quoted in this pass, so this citation is confirmed via the survey's authority rather than direct primary-text confirmation of the specific holding.

Citation: Duncan v. Pennington Cty. Hous. Auth., 283 N.W.2d 546, 548-49 (S.D. 1979).

Source: https://storage.googleapis.com/jnl-bcls-j-bclr-files/journals/1/articles/232/63a30c0a100a2.pdf

RESEARCHED via a comprehensive, exhaustively-footnoted 2020 Boston College Law Review survey of all 50 states + DC on this exact question, cross-checked against the underlying case for accuracy where feasible. Flagged for a closer primary-source read if South Dakota specificity becomes important -- the case's OSHA holding was not independently isolated in the excerpts reviewed.

Third-party contribution against the employer

S.D. Codified Laws Section62-3-10 makes a general contractor statutorily liable for a subcontractor's injured employee (to the same extent as the immediate employer), and this SAME statutory exposure confers exclusive-remedy immunity on the general contractor -- confirmed via a 2022 SD Supreme Court decision squarely on point.

Under Section62-3-10, a principal, intermediate, or subcontractor is liable for compensation to a subcontractor's injured employee, to the same extent as the immediate employer. In Ries v. JM Custom Homes, LLC, 2022 S.D. 52, the South Dakota Supreme Court affirmed summary judgment for a general contractor on a subcontractor-employee's negligence claim, holding that because the GC remained potentially liable for workers-comp under Section62-3-10, the exclusivity provision (Section62-3-2) made workers-comp the injured employee's sole remedy -- barring the negligence/contribution claim against the GC.

Citation: S.D. Codified Laws Section62-3-10, Section62-3-2; Ries v. JM Custom Homes, LLC, 2022 S.D. 52.

Source: https://southdakotasupremecourtopinions.justia.com/page/28

CORRECTED: the prior citation (Barger v. Cox, 2001 S.D. 16) could not be located or confirmed in any search. Replaced with real, current, and directly on-point authority -- Ries v. JM Custom Homes is a 2022 decision squarely addressing general-contractor statutory-employer immunity in a construction context.

Injury-severity gate on contribution claims

Narrow intentional-tort exception requiring 'substantial certainty' of injury -- reckless or even repeated OSHA violations are not enough without more.

SDCL 62-3-2 makes workers' comp exclusive except for rights and remedies arising from intentional torts. Althoff v. Pro-Tec Roofing (a construction roofing-fall death case) clarified that the employer must have known the injury was substantially certain to occur -- not just possible or even likely from a known risk. The Court rejected the more demanding 'virtual certainty' standard while confirming that recklessness or repeated safety-code violations alone are still insufficient.

Citation: S.D. Codified Laws Section62-3-2; Althoff v. Pro-Tec Roofing, Inc., 2022 S.D. 49.

Source: https://law.justia.com/cases/south-dakota/supreme-court/2022/29639.html

CORRECTED: the prior citation, 'McMillen v. Kovarik, 2016 S.D. 32,' doesn't match -- that citation is actually State v. Sanders, a forgery case, and the real Kovarik case is unrelated 1986 medical malpractice. Replaced with Althoff v. Pro-Tec Roofing, the actual controlling case, already correctly used elsewhere in this dataset (distinctiveDoctrine).

Distinctive state doctrine

Statutory-employer immunity for GCs confirmed by a 2022 state supreme court case; the intentional-tort exception requires the employer to have been "substantially certain" serious injury or death would occur, not just aware of a risk.

SDCL 62-3-2 makes workers' comp the exclusive remedy, and in Ries v. JM Custom Homes, LLC, 2022 S.D. 52, the South Dakota Supreme Court held this barred a subcontractor's injured employee from suing the GC even though the subcontractor's own insurer, not the GC, had paid the comp benefits. The intentional-tort exception's standard was clarified the same year in Althoff v. Pro-Tec Roofing, Inc., 2022 S.D. 49: a worker fell to his death after the employer had received three prior OSHA citations for similar fall-protection violations, but the Court held that knowing a practice "could" result in injury is not enough. The employer must have known injury was "substantially certain," not just possible or even likely, and ordinary recklessness or negligence, however severe, does not meet that bar.

Citation: SDCL 62-3-2; Ries v. JM Custom Homes, LLC, 2022 S.D. 52; Althoff v. Pro-Tec Roofing, Inc., 2022 S.D. 49.

Source: https://ujs.sd.gov/media/ynuc4htj/29639_althoff_v_protec_roofing_compressed.pdf

Verified directly against the official South Dakota Unified Judicial System's posted opinion for Althoff (ujs.sd.gov), not a secondary summary. Ries confirmed via multiple independent secondary sources; the official UJS opinion for Ries specifically was not separately pulled this pass.