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Gloe v. Iowa Mutual Insurance Co.3/2/2005
neficiaries, it can amend the language of the statutes clearly to say so, as has been done in some other states. We recently reiterated how we determine legislative intent:
The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used.
Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed. Moreover, n arriving at the intention of the Legislature, it is presumed that the words of the statute have been used to convey their ordinary, popular meaning. SDCL 2-14-1 requires that words in a statute are to be understood in their ordinary sense. We finally note that a udicial interpretation of a statute that fail[ ] to acknowledge its plain language would amount to judicial supervision of the legislature.
In re West River Electric Ass'n. Inc., 2004 SD 11, , 675 NW2d 222, 228 (citations and quotations omitted).
[ .] The plain language of SDCL 58-11-9 requires coverage to insureds "who are legally entitled to recover damages." SDCL 58-11-9. The plain language in the underinsured motorist coverage statutes likewise contemplates an insured's coverage on a wrongful death claim. SDCL 58-11-9.5 provides:
Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon.
(Emphasis added). As Gloe points out, in South Dakota decedents or estates of decedents cannot legally recover for their own deaths. SDCL 21-5-5. With this in mind, it is conceivable that the legislature intended to provide coverage protection for an insured who is "legally entitled to recover damages . . . because of . . . death," and underinsurance coverage for "death of" a person, and for "recover on account of . . . death." SDCL 58-11-9, -9.4, -9.5. This is particularly true since this is the plain meaning of the language the legislature used.
[ .] Another principle of statutory construction is to give effect to each word, phrase or sentence of a statute. A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant, . . . No clause sentence or word shall be construed as superfluous, void or insignificant if the construction can be found which will give force to and preserve all the words of the statute. While every word of a statute must be presumed to have been used for a purpose, it is also the case that every word excluded from a statute must be presumed to have been excluded for a purpose.
2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION ยง 46.06, 181-92 (6th Ed 2000) (emphasis added). We have to presume that the legislature used the words it did for a purpose and left out words for a purpose. The legislature wanted protection for those who suffered uncompensated damages due to underinsured and uninsured motorists' negligence. Those suffering damages as outlined by the statute are those who are legally entitled to recover damages for bodily injury and death. The only one who can legally recover damages for death is one entitled to recover under South Dakota's wrongful death statutes. Had the legislature intended to limit recovery to an ins
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