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Thompson v. Mehlhaff6/8/2005
ides:
If an injury for which compensation is payable under this title has been sustained under circumstances creating in some other person than the employer a legal liability to pay damages in respect thereto, the injured employee may, at the employee's option, either claim compensation or proceed at law against such other person to recover damages or proceed against both the employer and such other person. However, in the event the injured employee recovers any like damages from such other person, the recovered damages shall be an offset against any worker 's compensation which the employee would otherwise have been entitled to receive.
Id. (emphasis added). For example, if Thompson had been killed by a third party, such as a member of the motoring public unrelated to the construction project, Thompson's estate could collect worker 's compensation and sue the third party for negligence. If Thompson's estate obtained a judgment from the third party, the estate would then have to repay the worker 's compensation benefits to Spencer Quarries from that judgment.
[ .] Here, Thompson's estate sued the subcontractor, Mehlhaff, for vicarious liability as a result of Baltzer's negligence. Mehlhaff asserts Thompson could not sue under 62-3-2 because Baltzer was a fellow employee. While it is correct that Thompson could not sue Baltzer if he were a fellow employee, Baltzer worked for Mehlhaff, not Spencer Quarries. Therefore, Baltzer was not a fellow employee. Consequently, SDCL 62-3-2 did not preclude Thompson from suing Mehlhaff.
[ .] Mehlhaff also urges the adoption of a common employment theory to preclude this tort action. Mehlhaff argues that even if Thompson and Baltzer were not technically both employed by Spencer Quarries, as a practical matter they were both doing the same thing on the same job . For that proposition Mehlhaff relies upon a 1936 Massachusetts case, Dresser v. New Hampshire Structural Steel Co., 296 Mass 97, 101, 4 NE2d 1012, 1013-14 (1936), wherein the court held:
he plaintiff and the defendant's employer and every other workman on the job , regardless of his position, were engaged in a common employment and had the benefits of the Workmen's Compensation Act. All the employers on the job, including the defendant, had insured under the act, and thereby provided for all employees the benefit of the act. By so doing, they became protected from a liability to pay damages to workmen and employees injured while with the scope of their common employment.
However, Massachusetts abolished "common employment immunity" by statute in 1972. MassGenL, ch 152, ยง15 (2003).
[ .] Nevertheless, Mehlhaff asserts this Court should adopt the position of those minority jurisdictions that recognize the common employment doctrine. For example, in Haynes v. James H. Carr, Inc., 427 F2d 700, 702 (4thCir 1970), the common employment theory was applied where a subcontractor was performing part of the same trade, business or occupation as the general contractor. The test applied there was whether the subcontractor was doing the same work that the general contractor was doing on the job site and whether the general contractor could have done the work if it had not elected to hire the subcontractor. Id. In Kast v. PPG Industries, Inc., 664 FSupp 237, 240 (WDVa 1987), an employee of a general contractor was also precluded from suing a subcontractor for negligence based on this theory. Similarly, in Alvis v. Bill Jackson Rig Co., Inc., 636 P2d 910, 912 (OklaApp 1981), a general contractor's employee who was injured by a subcontractor could not sue because he was in the same employment as the subcontractors. As previously mentioned, these cases repre
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