April 5, 1979

Mr. Albert Griffiths 
Division of Conservation 
Anderson Building, Room 322 
Pierre, South Dakota 57501

Official Opinion No. 79-8

Desirability of Errors and Omissions Insurance

Dear Mr. Griffiths:

You have requested an official opinion based upon the following factual situation:

FACTS: 

The conservation districts established by SDCL 38-8 are not covered by the State's errors and omissions insurance policy (according to Jim Brinkman of Purchasing and Printing, Pierre, South Dakota).

Based upon the above facts you have asked the following questions:

QUESTIONS: 

1.  Is it advisable for the conservation districts to obtain errors and omissions insurance? 

2.  Are there any statutes protecting the employees of the conservation district from liability for errors/omissions? 

3.  Does the concept of governmental immunity protect the conservation district from some liability?

SDCL 38-8-49 provides: 

A conservation district organized under the provisions of this chapter shall constitute a governmental subdivision of this state, and a public body, corporate and politic, exercising public powers, and such district, and the supervisors thereof, shall have the following powers, in addition to others granted in other sections of this chapter: 

(1)  To sue and be sued in the name of the district; 
(2)  To have a seal, which seal shall be judicially noticed; 
(3)  To have perpetual succession unless terminated as hereinafter provided; 
(4)  To make and execute contracts and other instruments, necessary or convenient to the exercise of its powers; and 
(5)  To make, and from time to time amend and repeal, rules and regulations not inconsistent with this chapter, to carry into effect its purposes and powers.

IN RE QUESTION NO. 1:

The question of whether or not it is advisable for soil conservation districts to obtain errors and omissions insurance is a question involving very subjective issues.  In view of the present state of the law, state and federal, there is simply no way that you can be guaranteed that liabilities covered under errors and omissions insurance might not be found to exist against the district, its officers and employees.  Accordingly, I think the only responsible answer to your question is yes, it is advisable for public bodies such as conservation districts to obtain errors and omissions insurance.  Once again, however, the terms of the insurance and the scope of its coverage would need to be considered as very significant in evaluating the overall protections afforded the district.

IN RE QUESTION NO. 2:

I am not aware of any statutes which would protect the officers or employees of the conservation district from liability for errors/omissions occurring in the scope of their duties.

IN RE QUESTION NO. 3:

Although it is my belief that concepts of governmental immunity in the law do provide significant protection to the conservation district, and its officers and employees, from liability, the plain fact of the matter is that such concepts are not very popular with the courts and are very often “interpreted” as providing little if any protection for the public entity or public official in cases that get to the point of litigation.

As an additional matter for your consideration in this regard, I would refer you to SDCL 3-19 which does provide authorization for the political subdivision reimbursing employees up to ten thousand (10,000) dollars for expenses incurred in such things as errors and omissions lawsuits.  This is, however, a discretionary matter and does not provide any automatic protection to the officer or employee.

Respectfully submitted,

Mark V. Meierhenry
Attorney General

MVM:DOC:In