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Faircloth v. Raven Industries12/20/2000
e specific than section 35, the three-year limitation period should apply. See Ferguson v. Modern Farm Systems, Inc., 555 NE2d 1379 (IndCtApp 1990) (finding that a product liability statute of limitation governed because it was enacted more recently and had a narrower scope of coverage than the real estate improvement statute of limitation).
[ ] The Court also adds language to section 35.1. When it harmonizes the two sections, it states that section 35 applies when there has been a formal notice of denial by the employer, while section 35.1 applies when no denial notice is given. I find this distinction unpersuasive, as there is no language in section 35.1 to support this theory. When we apply legislative enactments, we determine intent "from what the legislature said, rather than from what we or others think it should have said." S.D. Subseq. Injury Fund v. Federated Mut. Ins., Inc., 2000 SD 11, , 605 NW2d 166, 169. Section 35.1 simply states that " n any case in which any benefits have been tendered ... any claim for additional compensation shall be barred, unless a claim is filed within three years from the date of the last payment of benefits." The only triggering event in the statute is that benefits have been paid and have been discontinued. There is no requirement that benefits be denied without notice or without a dispute. To hold otherwise judicially adds language to section 35.1 that was not intended by the legislature.
[ ] For these reasons, I would apply the three-year statute of limitation found in section 35.1 and allow Faircloth's claim to proceed. Therefore, I respectfully dissent.
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