(dissenting).
[¶ 39.] I respectfully dissent. I would affirm the Department of Labor decision, as I agree that neither equitable tolling nor equitable estoppel allow the resurrection of Insurer’s claims.
[¶ 40.] I agree with the Court that the issues in this case turn on the application of the statute of limitations and interpretation of the effect of a statutory amendment. Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 2002 SD 46, ¶ 12, 644 N.W.2d 612, 616. As such, both applications are reviewed by this Court de novo giving no deference to the circuit court’s conclusions of law. Id.
[¶ 41.] As this Court has often stated, “[t]he purpose of a statute of limitations is speedy and fair adjudication of the respective rights of the parties.” Peterson v. Hohm, 2000 SD 27, ¶ 14, 607 N.W.2d 8, 12 (quoting Minn. v. Doese, 501 N.W.2d 366, 370 (S.D.1993)) (citing Jiricek v. Woon-socket Sch. Dist. No. 55-1, 489 N.W.2d 348, 350 (S.D.1992); Merkwan v. Leckey, 376 N.W.2d 52, 53 (S.D.1985); Burke v. Foss, 334 N.W.2d 861, 864 (S.D.1983); Chipperfield v. Woessner, 84 S.D. 13, 14, 166 N.W.2d 727, 728 (1969)). The statute of limitations in workers compensation cases is jurisdictional in nature, as making a timely claim is an essential element of the right to compensation. Klein v. Menke, 83 S.D. 511, 517, 162 N.W.2d 219, 222 (1968) (citation omitted).
[¶ 42.] It is a “well established principle that statutes of limitation applicable to suits [or claims] against the government are conditions attached to the sovereign’s consent to be sued and must be strictly construed.” Kreiger v. United States, 539 F.2d 317, 320 (3rd Cir.1976) (citing Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 273, 1 L.Ed.2d 306, 311 (1957)) (holding statute of limitations should not be equitably tolled for taxpayer who filed a refund claim after the applicable statute of limitations). The United States Supreme Court has stated that the remedy of equitable tolling should be applied “sparingly” when the government is the defendant and extends no further than its use for claims between private litigants. Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 457, 112 L.Ed.2d 435, 444 (1990). Equitable tolling has been upheld by that Court in just two instances: when a defendant has filed a defective pleading within the statutory period, or where the plaintiff was induced or tricked by the defendant’s conduct into allowing the statute of limitations to expire. Irwin, 498 U.S. at 96, 111 S.Ct. at 457-58. The doctrine has never been applied to a “garden variety claim of excusable neglect.” Id.
[¶ 43.] Despite the favor with which statute of limitations defenses are met in the courts, an additional exception to their harsh outcome may be appropriate when a plaintiff acts “with ‘utmost diligence,’ only to find himself caught up in an arcane procedural snare.” Warren v. Department of Army, 867 F.2d 1156, 1160 (8th Cir.1989). In Warren, the pro se plaintiff filed his complaint within the time requirements of the applicable statute of limitations, but due to confusing language in the procedures provided to the plaintiff by the government, the plaintiff did not name the correct government official as the defendant. Id. at 1157-58. The case was dismissed by the lower court, but reversed by the Eighth Circuit using the doctrine of equitable tolling. Id. at 1160-61. That court was careful to note that Warren was not a case of imprudent legal practice, but rather confusion on the part of a pro se plaintiff created by the government itself. Id.
[¶ 44.] Imprudent legal practice is not reasonable conduct sufficient to invoke eq-*206nitable tolling. Peterson, 2000 SD 27, ¶ 16, 607 N.W.2d at 13 (quoting Braaten v. Deere & Company, 569 N.W.2d 563, 564 (N.D.1997)). When the doctrine has been applied in favor of the plaintiff in South Dakota, the plaintiff has been victimized by active, fraudulent conduct on the part of the defendant. See Smith v. Neville, 539 N.W.2d 679, 682 (S.D.1995) (holding equitable tolling applied when state and state’s insurance adjuster engaged in affirmative conduct that would have led a reasonable person to believe the state had received timely notice of the claim).
[¶ 45.] I agree with the U.S. Supreme Court that the doctrine should apply no further when the defendant is the government than when the defendant is a private litigant. Without active fraud or concealment on the part of the government, the doctrine of equitable tolling should not act to subvert the clear intent of the legislature when enacting a statute of limitations.
[¶ 46.] Insurers in the present case fall outside the two situations in which the U.S. Supreme Court has employed the doctrine of equitable tolling. Insurers did not timely file within the 90-day period as required by the pre-1999 version of SDCL 62^4-34.1. Nor did the government engage in any deceptive conduct to trick Insurers into missing the statute of limitations. Despite the absence of fraudulent or active conduct on the part of SIF, the Court focused on the diligence of the Insurers.
[¶ 47.] I fail to see how Insurers acted with 'the “utmost diligence” in the present case. In their brief, Insurers make much of the background of the two claims examiners involved in the eight claims at issue, and their reliance on copies of the South Dakota code provided by their employer, Risk Administration Services. (Appellant Br. at 14). One clerk was a high school graduate, and the other had an associate degree. Id. Insurers would have this Court believe that “utmost diligence” for Risk Administration and Insurers amounted to two hardworking employees, without legal training, determining how to interpret revisions to SDCL 62-4-34.7. For the term “utmost diligence” to have any meaning in this context, Insurers must have at the very least had legal counsel attempt to discern the correct course of action with regard to the SIF claims. This, Insurers failed to do and now wish to assert that they acted with “utmost diligence” in attempting to process their SIF claims.
[¶ 48.] Insurers’ conduct at best approaches the level of “garden variety excusable neglect” held insufficient to invoke equitable tolling in Irwin, and at worst a complete failure to obtain legal advice on how to process SIF claims given the changes in the statutory scheme. More importantly, there was no active conduct on the part of the government to induce Insurers into missing the 90-day filing deadline, an essential element necessary to invoke equitable tolling.
[¶ 49.] I agree that there was no way for Insurers to know how our decision in Homestake Mining Co. v. South Dakota Subsequent Injury Fund, 2002 SD 46, 644 N.W.2d 612, would re-open the door for SIF claims. But in Homestake, the plaintiffs were without remedy for failure to adhere to the statute of limitations contained in SDCL 62-4-34.1.4 We cannot now judicially legislate a remedy for Insurers given their failure to adequately investigate and comply with the same provisions in SDCL 62-M-34.1 that cost Homestake its opportunity to recover from the SIF.
*207[¶ 50.] While the outcome may seem harsh to Dakota Truck Underwriters, the Department correctly applied the provisions of SDCL 62-4-34.1 to Insurers’ claims. For the above reasons I would affirm the trial court5 and therefore respectfully dissent.
[¶ 51.] ZELL, Circuit Judge, joins this dissent.
. In Homestake Mining Co. v. South Dakota Subsequent Injury Fund, this Court held that statute of limitations for SIF claims in effect at the time of the injury, not at the time the claim arose, applied. 2002 SD 46, 644 N.W.2d 612.
. I agree with the Court that the equitable estoppel issue is without merit.