Counterclaims rise or fall on their own merit - KOTA Territory News

Counterclaims rise or fall on their own merit



Gary Jensen
Beardsley, Jensen and Von Wald

A counterclaim is a claim made by a defendant against the plaintiff who started the lawsuit. 

In Murray v. Mansheim, 2010 S.D. 18, the South Dakota Supreme Court held that a counterclaim for personal injury is governed by the three year personal injury statute of limitations.  The accident occurred on September 13, 2003.  On September 12, 2006, one day before the statute of limitations ran, Plaintiff started his lawsuit.  Thereafter on October 9, 2006, Defendant made his counterclaim when he included it in his Answer to Plaintiff's Complaint. 

The Court held that Defendant's counterclaim was untimely and upheld its dismissal even though it was included in Defendant's timely Answer.  The Court reasoned that counterclaims are actions governed by three- year personal injury statute of limitations, are "commenced" when they are set out in pleadings served on the opposing party, and do not "relate back" to the time the Plaintiff's Complaint was served.  Therefore, even though the Defendant's counterclaim was included in his timely Answer, it was brought after the statute of limitations ran so must be dismissed.

In other words, the timeliness of a personal injury counterclaim is governed by the date of the injury, not the timeliness of the Answer submitted by a defendant after he or she is sued.

E-mail Gary is intended as general information on legal issues affecting us all.  This information should not be relied upon in any particular case and should never be used in lieu of consulting with an attorney.


1.      You see yet another car accident at a spot where there have been many accidents in the past and will be more accidents in the future? 


2.      You learn another person is hurt using a machine that has injured others in the past and will injure others in the future? 


3.      You watch a dangerous practice – like where a school bus parks – you know is a disaster waiting to happen?  


What should you do? 


Try to prevent the next accident, injury, and catastrophe from happening. 


How can you do that? 


Send a letter or email to those responsible – the highway department, the owner and operator of the machine, the school district - putting them on notice of the danger.


Your letter or email will either prompt a "fix" or help the next innocent victim establish liability against those who failed to act.   


Taking a few minutes to write a letter or email can have a huge impact; you can be a difference maker. 

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