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Thompson v. Mehlhaff6/8/2005
ll bar recovery by the employee against any others, and he shall not collect from all a total compensation in excess of the amount for which any of such contractors is liable. This section shall apply only in cases where the injury occurred on, in, or about the premises on which the principal contractor has undertaken to execute work or which are otherwise under his control or management. (emphasis added).
Mehlhaff claims entitlement to the same immunity enjoyed by Spencer Quarries under SDCL 62-3-10. The statute provides that the employee shall not collect total worker 's compensation in excess of the employee's total damages. However, this argument fails to appreciate that SDCL 62-3-10 does not provide that Thompson could not sue Mehlhaff; the statute only provides that Baltzer could not collect from Spencer Quarries if paid in full by Mehlhaff.
[ .] Mehlhaff is not entitled to immunity and may be sued by Thompson. We hold that a general contractor who is liable for worker 's compensation benefits is entitled to immunity but a subcontractor who is not liable for the benefits is not entitled to such immunity. Therefore, the worker 's compensation benefits, which Thompson's estate received from Spencer Quarries, were not its exclusive remedy and Thompson's estate could sue Mehlhaff for Baltzer's negligence.
ISSUE TWO
[ .] Whether the trial court erred in excluding Mehlhaff's expert witness.
STANDARD OF REVIEW
[ .] Admission of expert testimony is within the broad discretion of the trial court. Schrader v. Tjarks, 522 NW2d 205, 209 (SD 1994); Stormo v. Strong, 469 NW2d 816, 820 (SD 1991). "A trial court's evidentiary rulings are presumed to be correct and will not be reversed unless there is a clear abuse of discretion." Stormo, 469 NW2d at 820. In addition to showing an abuse of discretion, Mehlhaff must show that the excluded evidence might and probably would have resulted in a different verdict. Schrader, 522 NW2d at 209-10. Finally, the proponent of excluded evidence must also attempt to offer the excluded evidence at trial and make an offer of proof. Joseph v. Kerkvliet, 2002 SD 39, , 642 NW2d 533, 535 (quoting State v. Norville, 23 SW3d 673, 685 (MoCtApp 2000)).
DISCUSSION
[ .] On January 30, 2003, a year before the trial, the trial court set a date for the disclosure of expert witnesses as February 17, 2003, for Thompson and March 17, 2003, for Mehlhaff. Thompson disclosed experts on February 14, 2003, before the deadline. Mehlhaff did not disclose any experts by the March 17, 2003, deadline. Seven months after the deadline, Mehlhaff had not yet disclosed any experts. On October 17, 2003, Thompson filed a motion in limine to prohibit Mehlhaff from presenting any expert witness testimony. Finally, three weeks after the motion, and nearly eight months after the deadline had passed, Mehlhaff disclosed Thomas Alcorn as an accident reconstruction expert and moved for an extension of the deadline and a continuance of the trial set for January 20, 2004. The trial court denied the motion without a hearing.
[ .] Alcorn was not allowed to testify at trial. After the close of Thompson's case, Mehlhaff made an offer of proof submitting Alcorn's report to establish what Alcorn's testimony would have been. The offer of proof was denied.
[ .] Alcorn's report included the following in his "Discussion:"
This analysis has also taken into consideration the actions of the drivers in this accident. Instructions given to the truck drivers indicate that the loaded trucks were to drive on the old section of roadway and empty trucks on the new section of roadway. At the time of the acciden
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