(concurring in result).
The majority opinion correctly states that under the rule of Lyons v. Lederle Laboratories, 440 N.W.2d 769 (S.D.1989), statutes which are merely procedural or remedial are to be given retroactive effect. The affirmative obligation which SDCL 62-7-35 places on Morrell to deny coverage in writing to workers claiming injury is not procedural or remedial, but substantive, and cannot apply retroactively.
The majority opinion is troubling in that it fails to specifically state which part of SDCL 62-7-35 is substantive and why, and thus risks distorting settled law.
SDCL 62-7-35 is basically a statute of limitations for filing Workers Compensation claims. “Statutes of limitations are remedial, not substantive.” Lyons, 440 N.W.2d at 770. Contrary to the majority’s suggestion, statutes of limitations remain remedial even though their application may be dispositive of the outcome in a given case. For example, in Matter of Estate of Lingscheit, 387 N.W.2d 738 (S.D.1986), we held that the petition of an Oklahoma widow for an elective share of her late husband’s South Dakota land was barred because she missed the deadline for filing under South Dakota law — even though Oklahoma’s substantive law was applicable, and Oklahoma had no statute of limitations governing elective share petitions. Although this had a “definite effect upon [the widow’s] substantive rights,” that fact did not transform a procedural statute of limitations into substantive law.
The test is whether the change in the statute constitutes a change in substantive law (as opposed to procedural law) and not whether a change in the statute affects the substantive rights of the parties. Obviously, the substantive rights of the parties will always be affected — or else the issue would not be litigated in the first place.
The majority also gets sidetracked on the notion that a change in the “triggering event” in a procedural statute of limitations somehow makes for substantive rather than procedural law. The majority does not explain why this is so. Indeed, the majority concedes that the Legislature could change the statutory length of time for filing Workers Compensation claims and that this would constitute a procedural change with retroactive effect. Yet, in most cases, changing the triggering event from one point to another is simply another means to alter the duration of the statutory period which should not affect the basic procedural nature of the statute any more than increasing the number of years would.
The key here is that this change in the triggering event also placed an affirmative duty on Morrell to do something which it had not been required to do previously: i.e., to notify claimants of denial of coverage in writing. Had Morrell already been required to do that prior to 1980, then the 1980 statutory amendment making that event the new trigger for the running of the statute of limitations would be procedural and would have retroactive effect. It is because the amended statute not only made the fulfillment of Morrell’s obligation the trigger, but also created the obligation in the first place, where there had been none before, that the amendment was partially substantive and therefore not entitled to retroactive effect.
Chief Justice MILLER joins this concurrence in result.