author: CAROL M. HANSEN, Judge.

text:
    2004 OK CIV APP 49
    ROADS WEST, INC., Petitioner, v. Neal AUSTIN; TTC Illinois, Inc.; Regency Insurance Company; CNA Insurance Companies; and The Workers’ Compensation Court, Respondents.
    No. 99,568.
    Court of Civil Appeals of Oklahoma, Division No. 1.
    Dec. 19, 2003.
    Rehearing Denied March 12, 2004.
    Certiorari Denied May 17, 2004.

      Matthew J. Graves, Oldfield, Coker & Graves, Oklahoma City, OK, For Petitioner.
    Michael James King, M. Jean Holmes, Winters, King & Associates, Inc., Tulsa, OK, For Respondent, Neal Austin.
    J. David Terrell, Oklahoma City, OK, For Respondent, Regency Insurance Co.
    Paul V. McGivern, Jr., J. Heath Lofton, McGivern, Gilliard & Curthoys, Tulsa, OK, For Respondent, CNA Insurance Companies.
   Opinion by

CAROL M. HANSEN, Judge.

¶ 1 Petitioner, Roads West, Inc. (Employer), seeks review of an order of a three-judge panel of the Workers’ Compensation Court, affirming the decision of the trial court which found Respondent, Neal Austin (Claimant) was employed by Employer when he sustained an accidental personal injury to the left leg arising out of and in the course of Claimant’s employment. The trial court found TTC Illinois, Inc. (TTC) was not Claimant’s employer and dismissed it as a party. It also found neither CNA Insurance Companies (CNA) nor Regency Insurance Company (Regency) had issued policies providing coverage in this matter and dismissed both insurance companies as parties. We vacate as to the dismissal of TTC, CNA, and Regency as parties, and remand for further proceedings consistent with this opinion.

¶ 2 Claimant brought a workers’ compensation claim against Employer to recover benefits for injuries he sustained on July 9, 2001, - in a rollover accident while he was driving Employer’s truck. Employer denied Claimant was-its employee and moved to join TTC as an additional party. It later moved to join CNA, Regency, and TTC’s officers, but then withdrew the motion as to the TTC officers.

¶ 3 TTC appeared, answered, moved to dismiss, and filed notice of its pending bankruptcy case and automatic stay of actions to recover claims against it. Regency specially appeared and moved to dismiss the claim against it, asserting it had not been served process and had not collected any premium related to any Oklahoma employee. CNA moved to dismiss, asserting it had not provided workers’ compensation insurance coverage to TTC, or in the alternative, any coverage was excess coverage only and not first-dollar coverage. Employer moved to strike CNA’s defenses, asserting it had violated court orders regarding discovery.

¶4 At trial on December 18, 2002, all parties stipulated Claimant injured his left leg in a single-event injury falling under the Workers’ Compensation Act, and that Claimant was temporarily totally disabled and in need of further medical treatment. The dispute among the parties related only to who was responsible for paying Claimant’s benefits.

¶ 5 Employer’s position was it transferred its employees to TTC, which was an employee leasing organization. It asserted Claimant was TTC’s employee, and was covered by TTC’s insurers, CNA and Regency. Employer argued its liability, if any, was secondary, and could not be determined until TTC’s liability was determined. Because TTC was in bankruptcy and the automatic stay had not been lifted, Employer argued the trial court had no jurisdiction to determine any liability against Employer. Employer also argued it had been denied due process because it had not been able to obtain documents from TTC and because CNA had hindered its ability to defend by not timely providing discovery materials. The trial court denied Employer’s motion to strike CNA’s defenses and heard evidence on the remaining issues.

¶ 6 The trial court issued an order finding Employer and TTC had entered into a service agreement under which TTC agreed to provide payroll services and workers’ compensation insurance coverage. It found that under the terms of the agreement, the employees for whom TTC provided services were to remain the employees of Employer and not become the employees of TTC. Therefore, the trial court found Employer was Claimant’s employer. It sua sponte dismissed TTC with prejudice. The trial court found neither CNA nor Regency had ever entered an insurance contract to provide coverage for Oklahoma employees and dismissed both with prejudice. It awarded benefits to Claimant against Employer. Employer appeals from this order with twelve contentions of error.

I

¶ 7 Employer’s first contention of error is the trial court lacked jurisdiction to proceed with trial because (1) TTC was in bankruptcy and the automatic stay had not been lifted, and (2) notice of trial was never provided to TTC. Pursuant to the Bankruptcy Code, 11 U.S.C. § 362(a)(6), the filing of a bankruptcy petition operates as a stay of any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case. However, nothing in the statute extends the stay to causes of action against non-bankrupt co-defendants of a debtor even if they are in a similar legal or factual nexus with the debtor. Ni Fuel Co., Inc. v. Jackson, 257 B.R. 600, 615 (N.D.Okla.,2000). Claimant’s claim against Employer was not stayed by TTC’s bankruptcy petition. The trial court did not violate the automatic stay by proceeding to trial on this claim.

¶ 8 Employer asserts it raised the issue of notice to TTC before the trial court. However, the portions of the record it cites relate only to TTC’s bankruptcy and not to the issue of notice. We will not consider questions not presented to and passed upon by the trial court. Von Stilli v. Young, 1950 OK 137, 203 Okla. 86, 219 P.2d 224, 228.

II

¶ 9 Employer’s second, third, fourth, and fifth contentions of error challenge the trial court’s rulings relieving CNA of liability for insurance coverage for Claimant’s claims. The trial court found,

THAT [CNA] did not issue a valid policy of workers’ compensation insurance in the State of Oklahoma on behalf of [TTC]. The Court finds that the only [CNA] policy of insurance ever contemplated for [TTC] was for excess coverage only, contingent upon [TTC] obtaining self-insured status in each state for which coverage was to be provided. While there is evidence that premiums were paid on a nationwide policy, those premiums only applied to states where [TTC] had obtained self-insured status. [TTC] never sought or obtained an “own risk permit” under the laws of the State of Oklahoma to render itself a self-insured employer in this jurisdiction. Therefore, no contract of insurance between [CNA] and [TTC] ever existed with respect to the State of Oklahoma. The payment of premium on insurance coverage applicable to other states does not effect any estoppel within Oklahoma, when the condition precedent for such coverage — self insured status for [TTC] — was never secured or even sought by [TTC] within Oklahoma. Accordingly, [CNA] is DISMISSED, with prejudice, and without liability in the claim for compensation filed herein.

Employer contends (1) “[t]he binder issued by CNA provided coverage to the claimant,” (2) “[t]he trial court lacks jurisdiction to rescind CNA’s binder,” (3) “[t]he trial court erred when it did not hold CNA was es-topped to deny Claimant coverage,” and (4) “[t]he trial court erred in its finding that CNA only provided excess coverage.”

¶ 10 The service agreement between Employer and TTC provided TTC would “obtain and pay the costs of providing all necessary and legally required workers’ compensation ... insurance coverage” for enrolled employ: ees. According to Gerald Caffrey, an underwriter for Wexford Underwriting Managers, Inc. (Wexford), TTC’s insurance broker contacted him for a quotation for excess workers’ compensation coverage for TTC. Caffrey said Wexford was the managing general agent for CNA and had a contract with CNA that allowed Wexford “to underwrite excess workers’ compensation for qualified self-insureds.” He said he did not have authority to underwrite first-dollar coverage.

¶ 11 Caffrey testified he submitted to the broker a quotation stating the terms and conditions under which Wexford would issue a policy to TTC. The quotation stated the type of insurance was “Excess Workers Compensation and Employers Liability,” and the states of coverage were those where, “the insured is a qualified self insurer for Workers Compensation.” Caffrey said he issued a binder for the policy. The binder stated the type of insurance was “Excess Workers Compensation and Employers Liability,” with the insured’s retention set at $1,000,000.00 per occurrence for workers’ compensation claims. It included Oklahoma in the listing of states of coverage, but stated, “Coverage provided under this policy will only apply to those states where the Insured is a qualified self-insured.”

¶ 12 Caffrey sent certificates of insurance to the states listed on the binder, including Oklahoma. The certificate sent to the Oklahoma Workers’ Compensation Court stated CNA had issued an excess insurance policy to TTC effective from May 24, 2001 to May 24, 2002.

¶ 13' Caffrey testified he later learned TTC was not a qualified self-insured in any state. Based on CNA’s 'instructions, he sent letters to TTC and its broker notifying them the policy was being rescinded and the premium would be refunded. Wexford sent a check for the refunded premium to the broker. Caffrey sent a notice of rescission to the Oklahoma court on June 29, 2001, and the court received it on July 5, 2001.

¶ 14 The workers’ compensation court has exclusive jurisdiction to determine and enforce a compensation risk, carrier’s liability to a claimant. Its jurisdiction necessarily “includes cognizance to decide the central issue-whether at the time of the claimant’s injury a contractual relationship subsisted between the employer, qua insured, and its insurer.” State Ins. Fund v. Brooks, 1988 OK 50, 755 P.2d 653, 657. The court may interpret and construe the policy incident to its determination of liability, but it has no power to reform a workers’ compensation insurance policy. Mid-Continent Cas. Co. v. Miller, 1969 OK 2, 451 P.2d 932, 933.

¶ 15 Insurance is a contract, and the relationship between the insured and insurer is contractual in nature. Silver v. Slusher, 1988 OK 53, 770 P.2d 878, 883. The essential elements of an insurance contract are the same as for any other contract. In order to create a contract of insurance, there must be a meeting of the minds of the contracting parties upon all the material terms and provisions of the contract. Niagara Fire Ins. Co. v. Aebischer, 1934 OK 684, 169 Okla. 551, 44 P.2d 5, 7. The parties are free to agree upon the terms of the contract and may limit or restrict an insurer’s liability. However, under Oklahoma law, insurance policies are issued pursuant to statutes, and the provisions of those statutes are given force and effect as if written into the policy. Shepard v. Farmers Ins. Co., Inc., 1983 OK 103, 678 P.2d 250, 251.

¶ 16 Pursuant to the estoppel act of the Workers’ Compensation Code, 85 O.S. 2001 § 65.2 and 65.3, “[a]n insurer who has collected premiums under a workers’ compensation policy computed on claimant’s wages is estopped to deny the insured’s status as a covered employer.” Muscogee (Creek) Nation v. Smith, 1997 OK 66, 940 P.2d 498, 501. The purpose of the estoppel act is to “prevent both an employer’s and an employee’s ensnarement in the false belief that compensation has been provided, only later to discover the purchased protection to be unavailable.” Little v. Muscogee (Creek) Nation, 1997 OK 57, 938 P.2d 739, 744. If, at the time of a claimant’s injury, an insurer accepted premiums computed on a claimant’s wages under a policy insuring the employer against liability under the Workers’ Compensation Act, the insurance contract is conclusively presumed to be for the benefit of the injured worker. Id.

¶ 17 The record in the instant case shows CNA and TTC never had a meeting of minds on an insurance contract. However, the undisputed evidence shows CNA’s binder included Oklahoma in its listing of states of coverage, and CNA issued a certificate of insurance to Oklahoma. Claimant was an enrolled employee for whom TTC was responsible for providing workers’ compensation insurance coverage. TTC paid a premium to CNA to cover its enrolled Oklahoma employees. Therefore, the trial court erred in ruling the payment of premium to CNA did not effect estoppel within Oklahoma. CNA is estopped from denying coverage to any employee injured during the period for which it accepted premiums.

,118-Claimant was injured on July 9, 2001. CNA accepted a premium for excess insurance coverage for the period May 24, 2001, to May 24, 2002, but rescinded the policy, notifying the Oklahoma Workers’ Compensation Court of the rescission on July 5, 2001. Pursuant to 85 O.S.2001 § 64(G), a workers’ compensation insurance policy may not be cancelled until ten days after notice to the court administrator. Therefore, the effective date of CNA’s rescission was July 15, 2001. Because Claimant’s injury occurred after the payment of premium for the policy and before the effective date of its rescission, the policy is conclusively presumed to be for Claimant’s benefit.

¶ 19 CNA, therefore, is liable for the insurance coverage for which the premium was paid, as stated in the binder, to-wit, excess workers’ compensation and employer liability, with the insured’s retention set at $1,000,000.00 per occurrence for workers’ compensation claims. The trial court erred as a matter of law in dismissing CNA with prejudice. CNA must remain a party in this matter, but will have no liability unless Claimant’s workers’ compensation benefits exceed $1,000,000.00.

Ill

¶ 20 Employer’s sixth and seventh contentions of error challenge the trial court’s findings that the insurance provided to TTC by Regency was limited to clerical workers in Illinois and that no evidence was presented Regency was ever paid premiums for Oklahoma employees. Employer argues Regency’s policy stated it applied to all states. It-argues TTC paid premiums to Regency based on Claimant’s wages, and Regency never gave notice to the court regarding cancellation.

¶ 21 An insurer’s liability to its insured is defined by the insurance contract. Tulsa Junior College v. Urban Design Group, Inc., 2000 OK CIV APP 55, ¶ 11, 10 P.3d 233. If the terms of the contract are unambiguous, clear, and consistent, they are to be accepted in their ordinary sense and enforced to carry out the expressed intention of the parties. Phillips v. Estate of Greenfield, 1993 OK 110, ¶ 10, 859 P.2d 1101. However, an insurance contract is a contract of adhesion because of the uneven bargaining position of the parties. Therefore, when there are ambiguities in the policy provisions, words of inclusion are liberally applied in favor of the insured and words of exclusion are strictly construed against the insurer. Max True Plastering Co. v. U.S. Fidelity and Guar. Co., 1996 OK 28, 912 P.2d 861, 864-865. The interpretation of an insurance contract and whether it is ambiguous is determined by the court as a matter of law. Id. at 869.

¶ 22 The insurance contract between TTC and Regency comprised an “Information Page,” with two extension schedules, and the policy itself, with a general section and six parts. The general section defined the insured as the employer named in Item 1 of the Information Page, and stated, “This policy covers all of your workplaces listed in Items 1 or 4 of the Information Page; and it covers all other workplaces in item 3.A. states unless you have other insurance or are self-insured for such workplaces.” Item 1 listed as the insured T.T.C. Illinois, Inc., at its Kankakee, Illinois address, and stated, “All usual workplaces of the insured at or from which operations covered by this policy are conducted are located at the address other wise herein: As per submitted schedule.” The attached schedule again listed the Kankakee, Illinois address. However, Item 3.A. of the Information Page provided, “Part One of the policy applies to the Workers Compensation Law of the states listed here: All states or as approved by law.” The general section defined “state” as any state of the United States -of America and the District of Columbia.

¶ 23 Part One of the 'policy related to workers’ compensation insurance. It provided, “We will pay promptly when due the benefits required of you by the workers compensation law.” Part Five related to the premium for the policy, and provided the premium “will be determined by our manuals of rules, rates, rating plans and classifications.” It also provided as follows:

B. Classifications
Item 4 of thé Information Page shows the rate and premium basis for certain business or work classifications. These classifications were assigned based on an estimate of the exposures you would have during the policy period. If your actual exposures are not properly described by those classifications, we will assign proper classifications, rates and premium basis by endorsement to this policy.
E. Final Premium
The premium shown on the Information Page, schedules, and endorsements is an estimate. The final premium will be determined after this policy ends by using the actual, not the estimated, premium basis and the proper classifications and rates that lawfully apply to the business and work covered by this policy....
G. Audit
You will let us examine and audit all your records that relate to this policy.... Information developed by audit will be used to determine final premium.

¶ 24 Item 4 of the information page stated the total estimated annual premium was $27,600,000.00, and referenced the extension schedule “for detailed premiums informa-' tion.” The extension schedule contained a table for the calculation of premium. Under the column heading for “Classification of Operations” was the caveat, “Entries in this item, except as specifically provided elsewhere in this policy, do not modify any of the other provisions of this policy.” The only entry in the column was “LOCATION 001— ILLINOIS CLERICAL.” The estimated annual premium based on that employee classification was $28,000,000.00.

¶ 25 Courts of other states have interpreted similarly structured workers’ compensation policies in determining whether the classification of operations specified in the policy limit the coverage of the policy. In Thompson v. Harold Thompson Trucking, 12 Kan.App.2d 449, 748 P.2d 430, 435 (1987), the Court concluded any limitation on the scope of coverage by the listed classification of operations would conflict with the coverage provision stating the insurer would “pay promptly when due all compensation and other benefits required of the insured by the workmen’s compensation law.” It adopted the construction most favorable to the insured and held the claimant was covered under the policy even though his job was not listed in the classification of operations.

¶ 26 In Maryland Cas. Co. v. Sullivan, 160 Tex. 592, 597, 334 S.W.2d 783, 787 (1960), the workers’ compensation insurance policy classified the employees of an agricultural chemical business as “Seed Merchants-including operating of seed sorting machinery,” but provided if the employer engaged in business other than those described and rated, then the employer would pay the premium on the other operations as prescribed in the manual. The court held the policy covered an employee killed while crop dusting, stating “[ujnder these provisions the [insurer] could have protected itself as to the premium due it for coverage of the pilot.” Id.

¶ 27 The insurance contract between Regency and TTC did not provide that the work classifications defined the covered risk. To the contrary, the extension schedule itself provided the entries in the classification of operations table did not modify any of the other provisions of the policy. The policy stated the covered risk was “the benefits required of you by the workers compensation law.” It expressly recognized the classifications were subject to audit and revision based on TTC’s “actual exposures.” Accordingly, we conclude the policy did not limit its coverage to Illinois clerical workers, but covered all of TTC’s enrolled employees, including Claimant.

¶ 28 The Regency policy stated its effective period was from February 1, 2001 to August 1, 2001. TTC made three premium payments of $1,800,000.00 each. In June 2001, Regency attempted to terminate the policy for nonpayment of premium, but failed to give notice to the administrator of the Oklahoma Workers’' Compensation Court as required by 85 O.S.2001 § 64(G). Regency argues it cannot be required to give notice of cancellation of coverage it did not know existed. However, the policy itself states it covers all TTC’s workplaces in any state of the United States and the District of Columbia unless TTC has other insurance or is self-insured in those workplaces. Therefore, Regency agreed to cover TTC’s operations in Oklahoma. Regency also argues TTC can-celled the contract when it obtained replacement coverage from CNA, relieving Regency of liability even if it failed to file notice of termination. As discussed in Part II above, CNA’s liability is for excess coverage only. Therefore, any coverage provided CNA does not replace coverage provided by Regency. Regency is liable for workers’ compensation benefits to TTC’s enrolled Oklahoma employees pursuant to its policy. The trial court erred as a matter of law in finding Regency’s coverage was limited to' clerical workers in Illinois and in dismissing Regency as a party.

IV

¶ 29 Employer’s eighth contention of error is its due process rights were denied by the trial court’s failure to continue the trial. Employer does not assert it requested a continuance and it provides no record citation showing it sought such relief. We will not consider questions not presented to and passed upon by the trial court. Von Stilli v. Young, 1950 OK 137, 203 Okla. 86, 219 P.2d 224, 228.

V

¶ 30 Employer’s ninth contention is the trial court erred in not granting relief for CNA’s and Regency’s failure to comply with discovery. The trial court may exercise its discretion in imposing sanctions for failure to comply with discovery orders. Skinner v. John Deere Ins. Co., 2000 OK 18, 998 P.2d 1219, 1224. By questioning counsel at trial, the trial court determined the discovery it ordered had eventually been accomplished, although not within the ordered time frame. It refused to strike the defenses of CNA and Regency, but reserved the issue of taxing costs for a noticed deposition for which CNA failed to appear. We find no abuse of discretion in the trial court’s action.

VI

¶ 31 Employer’s tenth, eleventh, and twelfth contentions of error relate to the trial court’s findings regarding the status of Employer and TTC as Claimant’s employer. Employer contends (1) it was relieved from liability by 85 O.S.2001 § 11(B)(1) and (2) because it was a principal employer who relied on a certificate of insurance provided by a subcontractor, (2) TTC, not Employer, was Claimant’s employer pursuant to the Oklahoma Professional Employee Organization Recognition and Registration Act (PEO Act), 40 O.S.Supp.2002 § 600.7(E), and (3) the trial court erred in sua sponte dismissing TTC.

¶ 32 The Service Agreement between Employer and TTC provided,

Each party hereto shall have direction and control of the employees covered hereby to the extent necessary to fulfill its obligations hereunder and to comply with all applicable laws and regulations. However, T.T.C. shall not have direction and control sufficient to render it the master or principal of any employee covered hereby for master-servant/principal-agent liability.

This contract creates a coemployment relationship as defined by the PEO Act, § 600.2(3)(a). The effective date of the PEO Act was November 1, 2002, after the date of Claimant’s injury. Laws 2002, c. 64, § 2. A compensation claim is controlled by the laws in existence at the time of injury and not by laws enacted thereafter. Knott v. Halliburton Services, 1988 OK 29, 752 P.2d 812, 813. However, we reach the same result whether we apply the PEO Act or not. Under the parties’ contract, both Employer and TTC have the.status of Claimant’s employer for workers’ compensation purposes. Pursuant to the PEO Act, both-parties are considered the employer for the purpose of coverage under the Workers’ Compensation Act. § 600.7(E).

¶ 33 Because Employer and TTC have the relationship of coemployers and not that of principal and independent contractor, Employer is not entitled to the protections of 85 O.S.2001 § 11(B)(1) and (2). Employer is responsible for Claimant’s workers’ compensation benefits independently of TTC. The trial court did not err in finding Employer was Claimant’s employer, but it did err as a matter of law in ruling TTC was not Claimant’s employer under the service agreement. Accordingly, the trial court erred in dismissing TTC without prejudice. In the event the bankruptcy stay is lifted, the parties may pursue claims against TTC. Even if the stay is not lifted, the Workers’ Compensation Court may decide claims against TTC’s insurers. 85 O.S.2001 § 64(c).

¶ 34 For the foregoing reasons, the order of the three-judge panel affirming the order of the trial court is VACATED to the extent it (1) dismissed CNA, Regency, and TTC as parties, (2) held CNA not estopped to deny excess coverage, (3) held Regency’s policy was limited to Illinois clerical workers and did not cover Claimant, and (4) held TTC was not Claimant’s employer. The panel’s order is SUSTAINED in all other respects and this matter is REMANDED for further proceedings consistent with this opinion.

JONES, J., and MITCHELL, P.J., concur.

      . "An excess insurance policy is one which by its terms provides coverage that is secondary to the primary coverage; there is usually no obligation to the insured until after the primary coverage limits have been exhausted." U.S. Fidelity and Guar. Co. v. Federated Rural Elec. Ins. Corp., 2001 OK 81, 37 P.3d 828, 831.

      . Section 65.2 provides,
      Every employer and every insurance carrier who schedules any employee as a person employed by the employer for the purpose of paying or collecting insurance premiums on a Workers' compensation insurance policy or who pays, receives or collects any premiums upon any insurance policy covering the liability of such employer under the Workers’ compensation law by reason of or upon the basis of the employment of any such employee shall be es-topped to deny that such employee was employed by the employer in a hazardous employment subject to and covered by the Workers' compensation law if such person receives an accidental personal injury arising out of and in the course of his employment, during the period for which such premium was so received, regardless of the type of business in which the employer was engaged o'r the type of employment in which the employee was engaged at the time of such injury.
      section 65.3 provides,
      Every contract of insurance issued by an insurance carrier for the purpose of insuring an employer against liability under the Workers' Compensation Act shall be conclusively presumed to be a contract for the benefit of each and every person upon whom insurance premiums are paid, collected, or whose employment is considered or used in determination of the amount of premium collected upon such policy for the payment of benefits as provided by the Workers’ Compensation Act regardless of the type of business in which the employer of such person is engaged or the type of work being performed by the employee at the time of any injury received by such employee arising out of and in the course of his employment, which contract may be enforced by such employee as the beneficiary thereof.

      . See also Black v. Swetnick, 281 A.D. 997, 998, 120 N.Y.S.2d 663, 664 (1953) ("the coverage of the policy is not restricted by the classifications; they are relevant only for the purpose of comput-' ing the premium."); and Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 238 (2002) ("The question before us is whether the Policy’s classification listings themselves constitute a limitation .... The Policy simply fails to provide that the classifications define the covered risks.”).


source: Caselaw Access Project

author: TOM COLBERT, Chief Judge.

license: Public Domain

text:
    2004 OK CIV APP 46
    Thomas L. KLASSEN, Plaintiff/Appellee, v. George L. LAZIK, d/b/a Lazik Enterprises, Defendant/Appellant.
    No. 100,241.
    Court of Civil Appeals of Oklahoma, Division No. 2.
    April 13, 2004.

      Brian R. Danker, Danker & Harrell, P.C., Claremore, OK, for PlaintiffiAppellee.
    Erinn. Shaw Bisceglia, Claremore, OK, for Defendant/Appellant.
   Opinion by

TOM COLBERT, Chief Judge.

¶ 1 Defendant, George L. Lazik, d/b/a La-zik Enterprises, appeals from a small claims judgment in favor of Plaintiff, Thomas L. Klassen. The issue in this appeal is whether the trial court properly determined it had in personam jurisdiction over Defendant. Upon considering the record and applicable law, we conclude it did and affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

¶2 Plaintiff is a resident of Oklahoma. Defendant is a resident of California. Plaintiff agreed to purchase Defendant’s plane for $5,000 and the trade-in on his plane. The parties executed two separate contracts of sale. The contract by which Defendant purchased Plaintiffs plane specified that Oklahoma law would apply, while the contract by which Plaintiff purchased Defendant’s plane specified that California law would apply. According to Defendant, the contracts were drafted by Plaintiffs attorney, presumably in Oklahoma.

¶ 3 As part of the negotiations, Defendant traveled to Oklahoma to examine Plaintiffs plane. While in Oklahoma, he entered into a separate agreement to sell Plaintiff some specially-manufactured hoses, necessary for the new plane, for $5,500. The hoses were shipped from the manufacturer to Defendant in California, where he turned them over to a mechanic Plaintiff had hired.

¶4 The hoses did not fit. Plaintiff incurred ádditional costs to have them installed and to successfully return to Oklahoma with the plane. When Defendant refused to reimburse him for his additional costs, Plaintiff sued Defendant in Oklahoma. Defendant filed a motion to dismiss for lack of in per-sonam jurisdiction. Following a hearing, the trial court denied Defendant’s motion to dismiss and granted judgment in Plaintiffs favor for $4,000, plus costs and an attorney’s fee. Defendant appeals.

STANDARD OF REVIEW

¶ 5 Defendant appeals only from the trial court’s determination that it had in personam jurisdiction over him. He does not appeal from the determination of damages. The issue on appeal, therefore, is one of law, which we review de novo. See Clayton v. Fleming Cos., 2000 OK 20, ¶ 11, 1 P.3d 981, 984.

DISCUSSION

¶ 6 This appeal is brought from a small claims judgment. The small claims court is an informal court and the rules of evidence are greatly relaxed. Black v. Littleton, 1975 OK CIV APP 1, ¶ 5, 532 P.2d 486, 487. The trial judge has “direct affirmative authority to control all aspects of a hearing with the sole object of dispensing speedy justice between the parties,” and has “enormous discretionary power.” Id. at ¶¶ 5, 7, 532 P.2d at 487. Nevertheless, jurisdiction must exist before the court has authority to enter judgment.

¶ 7 Defendant placed little formal evidence in the record on appeal. Although he submitted a sworn narrative statement in lieu of a transcript, he failed to obtain the trial judge’s signature on it and we may not consider it on appeal. See Okla. Sup.Ct. R. 1.30, 12 O.S.2001, ch. 15, app. We are left with the parties’ unsworn letters to the judge with the attached documentation. As the following discussion explains, those letters allege facts that are sufficient to support the court’s assertion of jurisdiction over Defendant. As the record contains no evidence to the contrary, we presume that the judge’s decision was responsive to the proof presented at the hearing and that the jurisdictional facts alleged in the letters were supported by proper evidence at the hearing. See Hamid v. Sew Original, 1982 OK 46, ¶ 6, 645 P.2d 496, 497. We thus consider the record we have in light of the law of jurisdiction.

¶ 8 “A court of this state may exercise jurisdiction on any basis consistent with the Constitution of this state and the Constitution of the United States.” 12 O.S. Supp. 2003 § 2004(F); see generally Deerinwater v. Circus Circus Enters., 2001 OK CIV APP 37, 21 P.3d 646. The intent of this long-arm statute “is to extend the jurisdiction of Oklahoma courts over non-residents to the outer limits permitted by the Oklahoma Constitution and by the due process clause of the United States Constitution.” Hough v. Leonard, 1993 OK 112, ¶ 7, 867 P.2d 438, 442 (footnotes omitted). Those outer limits were defined by Marathon Battery Co. v. Kilpatrick, 1965 OK 212, 418 P.2d 900, which adopted the standard established by the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). International Shoe held that due process “requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’” Id. at 316, 66 S.Ct. at 158 (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)). The defendant must have meaningful “contacts, ties or relations” to the forum state. Id. at 319, 66 S.Ct. at 160.

¶ 9 In personam jurisdiction may be either general or specific. A court may assert general jurisdiction over a non-resident defendant if he has maintained “continuous and systematic contacts” with the forum. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 415-16 & n. 9, 104 S.Ct. 1868, 1872-73 & n. 9, 80 L.Ed.2d 404 (1984). That level of contact is not present in this case.

¶ 10 If general jurisdiction is not present, however, specific jurisdiction may be. A finding of specific jurisdiction is a two-step process. First, a court must determine whether the non-resident defendant had the requisite minimum contacts with the forum such that he should have “reasonably anticipate[d] being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 567, 62 L.Ed.2d 490 (1980). What constitutes minimum contacts varies with the “quality and nature of the defendant’s activity.” Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958). Generally, however, this requirement is satisfied when the cause of action relates to or arises out of the defendant’s forum-related activities. Bearry v. Beech Aircraft Corp., 818 F.2d 370, 374 (5th Cir.1987).

¶ 11 Second, if minimum contacts have been established, a court must determine whether “the assertion of personal jurisdiction would comport with ‘fair play and substantial justice.’ ” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 2184, 85 L.Ed.2d 528 (1985) (quoting Int'l Shoe, 326 U.S. at 320, 66 S.Ct. at 160). The assertion of in personam jurisdiction comports with “fair play and substantial justice” if it is reasonable to require the defendant to defend suit in the forum. World-Wide Volkswagen, 444 U.S. at 292, 100 S.Ct. at 564. A court considers the following factors to determine the necessary reasonableness: the burden on the defendant; the forum state’s interest in adjudicating the dispute; “the plaintiffs interest in obtaining convenient and effective relief ... the interstate judicial system’s interest in obtaining the most efficient resolution of controversies; and the shared interest of the several states in furthering fundamental substantive social policies.” Id. (footnotes omitted).

¶ 12 In this instance, the minimum contacts have been established and form the basis of Plaintiffs claim here. Defendant came to Oklahoma and, while here, negotiated and entered into the agreement that gave rise to this litigation. Although delivery of the hoses was completed in California, the oral contract was executed in Oklahoma. It is only reasonable to assume that any controversy arising out of that contract would be settled in Oklahoma. Even though Defendant’s contacts to this state are minimal, they are direct and are the very contacts that give rise to Plaintiffs claim. See Bearry, 818 F.2d at 374.

¶ 13 While Defendant was burdened by having to return to Oklahoma to defend this matter, he chose to come here to conduct business. This state has a clear interest in helping its citizens obtain convenient and efficient resolution of controversies arising from contracts entered in this state. Even though Defendant lives in California, that state’s interest in this controversy is no greater than Oklahoma’s. The trial court’s assertion of in personam jurisdiction is fair and offers the parties substantial justice. See Int’l Shoe, 326 U.S. at 320, 66 S.Ct. at 160.

¶ 14 AFFIRMED.

REIF, P.J., and RAPP, J., concur.

      . The contracts of sale were actually between Plaintiffs mother, Mary Klassen, and Defendant, because Plaintiff's plane was in Ms. Klassen's name. The distinction is not relevant to our analysis as the oral contract at issue here was between.Plaintiff and Defendant.


author: LEHMAN, Justice.

text:
    2004 WY 65
    BONNIE M. QUINN REVOCABLE TRUST, dated March 7, 1995; and John Quinn, Jr. Revocable Trust, dated March 7, 1995, Appellants (Plaintiffs), v. SRW, INC., a Michigan Corporation; and Brenco Drilling, LLC, a Wyoming Limited Liability Company, Appellees (Defendants).
    No. 03-180.
    Supreme Court of Wyoming.
    June 7, 2004.

      Representing Appellant: Dennis M. Kir-ven of Kirven and Kirven, P.C., Buffalo, WY. Argument by Mr. Kirven.
    Representing Appellee: Kevin D. Huber and P. Craig Silva of Williams, Porter, Day and Neville, P.C., Casper, WY. Argument by Mr. Silva.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] The John Quinn, Jr. Revocable Trust, dated March 7, 1995, and Bonnie M. Quinn Revocable Trust, dated March 7, 1995 (Quinn Trusts), appeal the district court order dismissing their complaint pursuant to W.R.C.P 12(b)(6) for failure to state a claim upon which relief can be granted. The Quinn Trusts argue that .they are entitled to maintain a declaratory judgment action under the circumstances and that they have presented a justiciable controversy. SRW, Inc. and Brenco Drilling, LLC (SRW and Brenco) maintain that the complaint was properly dismissed because the Quinn Trusts failed to exhaust their administrative remedies. We affirm.

ISSUES

[¶ 2] The Quinn Trusts phrase the issues as:

A. Are Appellants entitled to maintain a Declaratory Judgment action to determine whether the exploration and production of coalbed methane gas requires a conditional use permit under the zoning resolution of Sheridan County, Wyoming?
B. Is the regulation of coalbed methane gas activities prohibited under W.S. § 18-5-201? ■

SRW and Brenco present the following issues:

1. Determining whether the exploration and production of coalbed methane gas requires a conditional use permit would bypass appropriate administrative ruling resulting in prejudging of issues when appellants have failed to seek appropriate administrative relief.
2. The Quinn Trust failed to exhaust its administrative remedies, therefore, it cannot seek relief in district court making the issue of justiciability moot, notwithstanding that, the Quinn Trust’s complaint fails to present a justiciable controversy.
3. Under Wyoming law and the holding in River Springs Ltd. Liability Co. v. Board of County Commissioners the county commissioners cannot zone mining exploration.

FACTS

[¶ 3] The Quinn Trusts own real property in Sheridan County as tenants in common. This property is used primarily for agricultural purposes. Indeed, the Quinn property is zoned for agricultural use pursuant to the Sheridan County zoning resolution, which was adopted by 'the Board of County Commissioners for Sheridan County on May 14, 1985. The Quinn Trusts do not own the rights to the minerals underneath the Quinn property.

[¶ 4] In April of 2003, SRW and Brenco began the exploration and development of minerals underneath the Quinn property. SRW and Brenco did not seek or obtain a conditional use permit from the board of county commissioners prior to the commencement of their activities. However, their activities were pursuant to permits obtained from the Wyoming Oil and Gas Conservation Commission. SRW and Brenco have constructed roads and drill pads on the Quinn property and are drilling from the surface down to the coal seam to obtain coalbed methane gas.

[¶ 5] Shortly after SRW and Brenco commenced their work, the Quinn Trusts sent a letter to SRW’s attorney demanding that SRW comply with the Sheridan County zoning resolution. Specifically, the Quinn Trusts asserted that section 17 of the zoning regulation provides that “mineral exploration temporary facilities” are not permitted in any of the zoning resolution’s classifications; and, as a result, such activities are only allowed if a conditional use permit is applied for and granted. The Quinn Trusts therefore demanded that SRW apply for a conditional use permit before occupying or using the Quinn property for the purpose of mineral extraction. SRW did not reply to this demand because it believed that its use of the land did not require a conditional use permit. The Quinn Trusts additionally sent a letter to the county attorney asking that the zoning resolution be enforced. No action was taken on that letter.

[¶ 6] On April 25, 2003, the Quinn Trusts filed this action. The Quinn Trusts sought a declaration under the Uniform Declaratory Judgments Act that the zoning resolution required SRW and Brenco to apply for and obtain a conditional use permit for each drill site located on the Quinn property. The Quinn Trusts also requested that the court issue an injunction prohibiting SRW and Brenco from continuing mineral extraction activity on the Quinn Trusts’ property without a conditional use permit. The Quinn Trusts additionally asked that the court determine that state or federal law concerning coalbed methane drilling does not preempt the board of county commissioners from regulating mineral exploration in this manner.

[¶7] SRW and Brenco did not file an answer but instead filed a motion to dismiss under W.R.C.P. 12(b)(6). SRW and Brenco alleged that the Quinn Trusts were not entitled to relief under the Uniform Declaratory Judgments Act because, among other things, the zoning regulation did not apply to their drilling activities and the Quinn Trusts failed to exhaust their administrative remedies. They further alleged that under Wyo. Stat. Ann. § 18-5-201 (LexisNexis 2003) their drilling activities are not subject to regulation. The court granted the motion on July 30, 2003, dismissing the Quinn Trusts’ complaint for failure to state a claim upon which relief can be granted. The Quinn Trusts appeal.

STANDARD OF REVIEW

[¶ 8] Our well-known standard of review for motions to dismiss applies.

When claims are dismissed under W.R.C.P. 12(b)(6), this court accepts the facts stated in the complaint as true and views them in the light most favorable to the plaintiff. Such a dismissal will be sustained only when it is certain from the face of the complaint that the plaintiff cannot assert any facts that would entitle him to relief. Story v. State, 2001 WY 3, ¶ 19, 15 P.3d 1066, ¶ 19 (Wyo.2001). Dismissal is a drastic remedy and is sparingly granted; nevertheless, we will sustain a W.R.C.P. 12(b)(6) dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any set of facts that would entitle that plaintiff to relief. Robinson v. Pacificorp, 10 P.3d 1133, 1135-36 (Wyo.2000).

Manion v. Chase Manhattan Mortgage Corp., 2002 WY 49, ¶ 6, 43 P.3d 576, ¶ 6 (Wyo.2002) (quoting Van Riper v. Oedekoven, 2001 WY 58, ¶ 24, 26 P.3d 325, ¶ 24 (Wyo.2001)).

DISCUSSION

[¶ 9] We begin with the question of whether the Quinn Trusts can maintain their suit in light of their failure to seek administrative relief. The Quinn Trusts argue that the Uniform Declaratory Judgments Act was specifically designed for this type of action and that the act should be liberally construed to serve its purpose. In making this argument they claim that this action could resolve uncertainty created by the zoning resolution. As such, they argue that they were not required to pursue administrative'remedies in order to maintain their declaratory judgment action. We disagree.

[¶ 10] The purpose of declaratory judgment actions is, as the Quinn Trusts assert, to settle disputes and terminate controversy concerning the legal rights and duties of the parties without requiring that one party commit a wrong. Hirschfield v. Board of County Comm’rs, 944 P.2d 1139, 1142 (Wyo.1997). Additionally, as the Quinn Trusts assert, Wyoming’s declaratory judgments act is remedial and should be liberally construed and administered. Id.; see Wyo. Stat. Ann. § 1-37-114 (LexisNexis 2003). Nevertheless, there remains the prerequisite that the party seeking declaratory relief present the court with an actual controversy. Hirschfield, at 1142. In addition,

there is a restriction on the availability of a declaratory judgment action with reference to its applicability to administrative matters. Where the action would result in a prejudging of issues that should be decided in the first instance by an administrative body, it should not lie. This is because, if it be otherwise, all decisions by the several agencies could be bypassed, and the district court would be administering the activities of the executive branch of the government. This restriction on the scope of declaratory judgments is akin to the requirement that administrative remedies must be exhausted before judicial relief is available.

Rocky Mountain Oil and Gas Ass’n v. State, 645 P.2d 1163, 1168 (Wyo.1982) (citations omitted).

[¶ 11] In this case it is apparent that the Quinn Trusts did not seek any type of administrative relief. The only action the Quinn Trusts took prior to filing suit was to write two letters, one to SRW and one to the county attorney. The Quinn Trusts took no action to seek relief with the body that has the duty of administering the zoning resolution, the board of county commissioners. As a result, that body never had an opportunity to address the matter. The Quinn Trusts seem to argue that they should be excused from this requirement because the zoning resolution does not specifically give them a mechanism to get in front of the zoning board, i.e. there is not a specific form for them to use to ask the zoning authority to enforce the zoning resolution.

[¶ 12] A somewhat similar argument was made and rejected in State ex rel. Baker v. Strange, 960 P.2d 1016 (Wyo.1998). In that casé, the Bakers were landowners across the alley from Bob Lewis. Strange, the building inspector, issued Lewis a building permit to construct a building on his lot. After the structure was framed, the Bakers concluded that the structure violated sections of the applicable zoning ordinance. The Bakers then wrote a letter to Strange asking that he enforce the ordinance:' Strange did not respond to the request, and the Bakers filed for a writ of mandamus seeking that Strange be required to enforce the zoning ordinance. The district court dismissed the action because the Bakers did not pursue administrative remedies. Baker, at 1017. In affirming the district court’s order of dismissal we noted, at 1019, “[t]he pertinent feature in this case is that, like the petitioner in State ex rel. Epp [v. Mayor, 894 P.2d 590 (Wyo.1995)], the Bakers made no effort to pursue an available administrative remedy.”

[¶ 13] The Quinn Trusts have similarly demonstrated no effort to seek administrative relief. It is clear that the Quinn Trusts never tried to get in front of the zoning administrator and have entirely avoided the administrative process. They did not even do as the Bakers did and write a letter to the zoning authority. Instead, they sought to enforce the zoning resolution on their own through this - declaratory judgment action. At this point, it is unknown whether the Quinn Trusts would have been denied relief on the basis that they did not use one of the zoning administrator’s forms because the Quinn Trusts made no effort to get in front of the zoning administrator.

[¶ 14] Furthermore, while there may not have been a specific form for the' Quinn Trusts to use, they still could have pursued administrative relief. The Quinn Trusts could have requested that the zoning administrator enforce the resolution and, if he denied their request, proceeded administratively. Specifically, the zoning resolution provides that the zoning administrator has the duty to enforce the zoning resolution. Thus, as provided, the zoning administrator is a lower level adjudicator who reviews whatever is brought before him and makes a final decision. • If the zoning administrator rules against a party, then that party becomes an aggrieved person and can appeal to the county planning and zoning commission. Decisions from this commission can be appealed to the board of county commissioners. Following this procedure, if the Quinn Trusts do not agree with the lack of enforcement of the zoning resolution, their remedy is not against SRW and Brenco, but against the board of county commissioners, the administrative body responsible for administering this zoning resolution.

[¶ 15] In response to the argument that they are precluded by their failure to seek administrative relief, the Quinn Trusts argue that this case presents circumstances similar to Director of Office of State Lands & Invs. v. Merbanco, Inc., 2003 WY 73, 70 P.3d 241 (Wyo.2003) and thus, under the holding of that case, they were not required to exhaust administrative remedies. In Merbanco we considered the question of standing and justi-ciability regarding a declaratory judgment action that had'been filed seeking a declaration that the Wyoming constitution prohibited an exchange of state school lands without public auction. Id., ¶¶ 7-24. In finding that the parties had standing to bring the action without exhausting administrative remedies we reasoned:

The state’s argument that we must let the board’s process with regard to the Teton Village school section run its course is counter to the entire thrust of the declaratory judgments statute which was designed to enable parties to obtain judicial determinations prior to an injury rather than requiring them to wait until the damage is done. The board itself possesses no power to resolve questions of constitutionality. Riedel v. Anderson (Conflicting Lease Applications[Application] for Wyoming Agricultural Lease No. 1-7021 [1-7027]), 972 P.2d 586, 587 (Wyo.1999). We have rejected the argument that, in the context of administrative agency action, parties must exhaust their administrative remedies before challenging the authority of the agency to act. Rocky Mountain Oil and Gas Association v. State, 645 P.2d 1163 (Wyo.1982). If the relief requested ‘concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be, based, the [declaratory judgment] action should be entertained.’ Id. at 1168.
Procedure. Appeals concerning interpretation on administration of this resolution may be taken to the County Planning Commission within 60 days by any person aggrieved by a decision of the Zoning Administrator.
Decisions of the Zoning Administrator and the County Planning Commission can be appealed to the Board of County Commissioners for confirmation, amendment, or reversal upon written request given within sixty (60) days by any person aggrieved by the decision.

Merbanco, ¶ 11.

[¶ 16] The Quinn Trusts latch onto our statement that, “we have rejected the argument that, in the context of administrative agency action, parties must exhaust their administrative remedies before challenging the authority of the agency to act. Rocky Mountain Oil and Gas Association v. State, 645 P.2d 1163 (Wyo.1982).” Merbanco, ¶ 11. However, as can be seen when considering the full quote above, rather than just that sentence in isolation, relief from the exhaustion requirement is granted if the action ■“concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be, based.” Merbanco, ¶ 11. It is clear that, placed in its context, this passage simply reiterates our long-recognized rule that “[a]n action for declaratory judgment cannot be a substitute for an appeal from administrative 'decisions but is available even though there is a statutory method of appeal if it concerns the validity and construction of agency regulations, or if it concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be based.” Hirschfield, 944 P.2d at 1142 (emphasis added); see also Ten Broek v. County of Washakie, 2003 WY 164, ¶ 8, 82 P.3d 269, ¶8 (Wyo.2003); Snake River Brewing Co., Inc. v. Town of Jackson, 2002 WY 11, ¶ 6, 39 P.3d 397, ¶ 6 (Wyo.2002) (“The Act is an appropriate vehicle, not for prejudging issues that should be decided by an administrative agency, but for interpreting the statute or ordinance upon which the administrative action is based.”). In fact, a review of Rocky Mountain Oil and Gas Ass’n, shows that the full explanation of the rule referred to in Merbanco reads:

Accordingly, where the relief desired is in the nature of a substitution of judicial decision for that of the agency on issues pertaining to the administration of the subject matter for which the agency was created, the action should not be entertained. If, however, such desired relief concerns the validity and construction of agency regulations, or if it concerns the constitutionality or interpretation of a statute upon which the administrative action is, or is to be, based, the action should be entertained.

Rocky Mountain Oil and Gas Ass’n, at 1168.

[¶ 17] In Merbanco the parties were seeking a determination regarding the. constitutionality of an agency action, and we thus found the action could be entertained. Merbanco, ¶ 11. It is also worth noting that the action in both Rocky Mountain Oil and Gas Ass’n and Merbanco was brought directly against the agency, providing the agency the opportunity to consider and defend its position. Similar circumstances are not presented by this case. The declaration that the Quinn Trusts primarily seek is “whether the exploration and production of coalbed methane gas requires a conditional use permit under the zoning resolution.” It is evident from the Quinn Trusts’ arguments that this declaration requires neither the construction of the validity of the ordinance, a statutory interpretation, or a constitutional resolution. Instead, the Quinn Trusts are simply asking the court to decide whether a conditional use permit is required in this situation. This is precisely the type of question that should first be entertained by the agency.

[¶ 18] In addition, the Quinn Trusts have tried to create some statutory construction issues claiming that the resolution presents uncertainty. The uncertainty that the Quinn Trusts set forth relates to the definition of the word “landowner” and the definition of the word “facility.” The board of county commissioners and its lower level adjudicators have the expertise and are best situated to supply those definitions within the meaning of the zoning resolution. As it sits now, we have no idea how. the agency interprets these words. It is possible that the agency considers a road a “facility” and would require a conditional use permit in these circumstances, and it is just as possible that they-do not consider a road a “facility” and would not require a conditional use permit. As such, a court determination of whether a conditional use permit is required in these circumstances would bypass an appropriate administrative ruling resulting in the prejudging of issues that should be decided in the first instance by an administrative body. See Rocky Mountain Oil and Gas Ass’n, at 1168. If we are to review the matter at all, it should be after those issues are fully heard, briefed, presented, and decided at the administrative level.

[¶ 19] We, therefore, hold that the district court properly granted the motion to dismiss. This holding is consistent with our long-standing reasoning behind requiring the exhaustion of administrative remedies.

The reasons for applying the exhaustion doctrine have been well noted:

A primary purpose is, of course, the avoidance of premature interruption of the administrative process. The agency, like a trial court, is created for the purpose of applying a statute in the first instance. Accordingly, it is normally desirable to let the agency develop the necessary factual background upon which decisions should be based. And since agency decisions are frequently of a discretionary nature or frequently require expertise, the agency should be given the first chance to exercise that discretion or to apply that expertise. And of course it is generally more efficient for the administrative process to go forward without interruption than it is to permit the parties to seek aid from the courts at various intermediate stages. The very same reasons lie behind judicial rules sharply limiting interlocutory appeals.

Rissler & McMurry Co. v. State, 917 P.2d 1157, 1160-61 (Wyo.1996) (quoting Glover v. State, 860 P.2d 1169,1172 (Wyo.1993)).

[¶ 20] Lastly, the parties present argument considering whether the zoning resolution imposes a reasonable regulation on the mining activities and whether it violates Wyo. Stat. Ann. § 18-5-201 (LexisNexis 2003) and our holding in River Springs Ltd. Liability Co. v. Board of County Comm’rs, 899 P.2d 1329 (Wyo.1995). We will not address this argument at this time. Once again, this is clearly an argument that should be presented to and involve the board of county commissioners. We have no idea how the board would enforce the resolution in this area. It is possible that the commission would enforce the resolution in a manner that no such question will exist. We simply do not know because the agency was never given the opportunity to decide the issue in the context of the Quinn Trusts’ complaint. Accordingly, we hold that this administrative process is required before we can entertain such argument.

CONCLUSION

[¶21] For the above-stated reasons, we affirm the district court’s order dismissing the complaint for failure to state a claim upon which relief can be granted.

      . Section 24(B) of the zoning resolution provides:
      B. Conditional Use Permit (CUP) Required. Any use not shown as permitted in the Zoning District in which the use is being requested, as per Section 17. ZONING USE CHART, shall require a CUP prior to initiation of the use.

      . Wyo. Stat. Ann § 1-37-103 (LexisNexis 2003) provides:

        Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of- construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations:

      . The Sheridan county zoning resolution at § 25 provides in relevant part:
      A. Zoning Administrator. It shall be the duty of the Zoning Administrator, which shall be appointed by the Board of County Commissioners, to enforce the provisions of this resolution and to refuse to issue any zoning compliance certificate for any building or structure which would violate any of the provisions hereof. The Zoning Administrator is hereby authorized to prosecute or bring any proceedings in a proper court in the name of the County of Sheridan against any person, firm or corporation violating any of the provisions of this resolution, and in case any building or structure is erected, constructed, reconstructed, altered or converted; or any building, structure or land is used in violation of this resolution, said Zoning Administrator is hereby authorized and directed to institute any appropriate action or proceeding to prevent such unlawful erection, construction, alteration, conversion or use; to restrain, correct or abate such violation and to prevent any illegal conduct or use on or about the premises.

      . Section 26 of the zoning resolution regarding appeals and variances provides in relevant part:


author: HILL, Chief Justice.

text:
    2004 WY 64
    Rose FETZER and Raymond P. Fetzer, Appellants (Plaintiffs), v. J.D. DAYLEY & SONS, INC., Appellee (Defendant). J.D. Dayley & Sons, Inc., Appellants (Defendant), v. Rose Fetzer and Raymond P. Fetzer, Appellees (Plaintiffs).
    Nos. 03-155, 03-156.
    Supreme Court of Wyoming.
    June 7, 2004.

      Representing Appellants Rose Fetzer and Raymond P. Fetzer: Ronald P. Jurovich of Thermopolis, Wyoming; and Randy L. Royal of Greybull, Wyoming. Argument by Mr. Jurovich.
    Representing Appellee J.D. Dayley & Sons, Inc.: Laurence W. Stinson of Bonner Stinson, P.C., Powell, Wyoming; and John R. Goodell of Racine, Olson, Nye, Budge & Bailey, Pocatello, Idaho. Argument by Messrs. Stinson and Goodell.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶ 1] Rose Fetzer (Fetzer) and her husband, Raymond, filed a claim of negligence against J.D. Dayley & Sons, Inc. (Dayley) seeking damages for personal injuries suffered by Fetzer when she stepped into a hole that had been drilled to locate utility lines. In Case Number 03-155, they appeal an order of the district court that prohibited them from introducing portions of their treating orthopedic surgeon’s proffered expert testimony regarding future medical care and expenses on the grounds that Fetzer had failed to timely disclose the testimony. Finding no abuse of discretion, we affirm.

[¶ 2] In Case Number 03-156, Dayley appeals the failure of the jury instructions given by the district court to include consideration of the conduct of a non-party actor when apportioning comparative fault. Based on our holding in Case Number 03-155, we dismiss Dayley^s appeal.

ISSUES

[¶ 3] In Case Number 03-155, Fetzer sets forth the following statement of the issues:

1.Was it an abuse of discretion for the trial court to have excluded plaintiffs’ testimony and exhibits relative to future medical expenses[?]
2. Was it an abuse of discretion to deny the plaintiffs the testimony of their treating physician relative to post-traumatic arthritis developed by the Plaintiff Rose Fetzer but not discovered until October 30, 2002[?]
3. Was it an abuse of discretion when the trial court changed it’s pretrial order on the second day of trial relative to certain exhibits[?]
4. Was it an abuse of discretion for the trial court to allow defense counsel to solicit testimony from the plaintiffs’ treating physician that Plaintiff Rose Fetzer had met her treatment goals and had healed remarkably well[?]
5. Was it an abuse of discretion to have allowed defense counsel to represent to the jury that the plaintiff had healed completely with no after-effect, when plaintiffs’ counsel had been precluded from addressing those issues!?]
6. Was it an abuse of discretion on the part of the trial court to deny plaintiffs’ motion for new trial!?]
7. Did the defendant through its cross-examination “open the door” to the use of evidence relative to future medical expenses and arthritic changes in Rose Fetzer’s knee!?]

Dayley responds with two issues:

1. Whether the trial court’s decision to exclude certain portions of the trial testimony of Dr. James Randolph relative to future medical care and costs for Appellant/Cross-Appellee Rose Fetzer * * * was an abuse of discretion when the proffered trial testimony directly contradicted the doctor’s deposition testimony and Fetzer failed to supplement the deposition or provide specific notice of the change to Appel-lee/Cross-Appellant J.D. Dayley & Son’s, Inc. * * *.
2. Whether the trial court’s decision to exclude from evidence Dr. James Randolph’s clinic visit note regarding treatment of Fetzer, dated November 11, 2002, which note was generated subsequent to the doctor’s deposition, was an abuse of discretion and, if so, whether its exclusion was harmless error.

In Case Number 03-156, Dayley frames the issue as:

Whether the trial' court’s refusal to instruct the jury that it should consider the comparative fault, if any, of non-party actor Mid-States Consultants, Inc., pursuant to W.S. § 1-1-109 (Lexis Nexis 2003), was prejudicial error.

Fetzer concurs with Dayley’s statement of the issue.

FACTS

[¶ 4] Dayley was contracted by TCT West, Inc., a telecommunications company, to work on a construction project that included the installation of underground telephone lines in Basin, Wyoming. Mid-States Consultants, Inc. (Mid-States) was hired by TCT West to supervise the installation of the lines to ensure compliance with job specifications. In order to locate existing utility lines, holes were drilled using pressurized jets of water. In early July 2001, several of- these locator holes were drilled in an alley adjacent to Fetzer’s residence. On July 9, 2001, Fetzer accidentally stepped into one of the locator holes causing a tibial plateau fracture.

[¶ 5] On August 24, 2001, Fetzer filed a Complaint alleging that Dayley had negligently failed to mark the locator hole or erect some sort of guard or protector to warn the public. Fetzer requested damages for bodily injury, loss of enjoyment of life, and pain and suffering. Fetzer’s husband, Raymond, joined the suit and sought to recover damages for loss of consortium.

[¶ 6] On May 30, 2002, Fetzer filed a Plaintiffs’ Designation of Expert Witnesses. Among the experts designated was Fetzer’s orthopedic surgeon:

Dr. James G. Randolph, [address and phone number]. Dr. Randolph is expected to testify and offer his opinion concerning diagnosis, treatment and prognosis of the Plaintiff Rose Fetzer following her injury on July 9, 2001. Dr. Randolph is expected to testify utilizing his medical records as well' as the medical records from the Was-hakie Medical Center in Worland, Wyoming. He is expected to testify as an orthopedic surgeon, concerning his communications with the patient, his observations, and he will testify consistent with any deposition that he may give. No deposition has yet been taken. He will testify and offer his opinion regarding the severity of the injury and damage sustained by Rose Fetzer.
Dr. Randolph will be designated as a fact witness, but he is herein designated as an expert witness. As an expert in orthopedic surgery, he will testify concerning the transfer of the patient from Midway Clinic in Basin, his initial examination of Rose Fetzer, his impression and opinion of the injury together with its severity, the surgical procedure that he utilized, his consultations with Rose Fetzer, and her 'prognosis. He will testify concerning future medical expenses which Rose Fetzer may incur including joint replacement and. the estimated cost of that joint replacement of approximately $27,000.00. He will also testify that Rose Fetzer will have arthritis at the point of injury.

Dr. Randolph’s deposition was taken on July 11, 2002. To the surprise of Dayley, the doctor stated that at'that time there was no indication that Fetzer would need to incur any future medical expenses:

Q: Okay. And at that time, just so I am clear, it was January 24th, 2002, you had your last office visit with Rose Fetzer?
A: Yes.
Q: And the purpose of that visit; was it to complain about anything relevant to the surgery, or was it just a routine checkup?
A: Routine foll,ow:up visit.
Q: And as part of that routine follow-up visit on January 24th, 2002, was there anything that caused you concern about the surgical procedure and her recovery from it?
A: Not specifically. I think that she was doing well at that time. My concern, as I had stated previously, would have to do with any patient that has had a severe intra-articular fracture involving a weight-bearing joint, would be the potential for that joint to go on and develop post traumatic arthritis.
Q: But at the time of the January 24th, 2002, visit there was no indication of any problem, including the arthritis that you described?
A: That’s correct.
Q: Doctor, I know [co-counsel] touched on this but I am just curious, can you tell us, does Mrs. Fetzer suffer from any percentage of disability, either permanent or partial, as a result of the injury of July 9th, 2001?
A: According to the information that I have, again she was last seen in this office on January 24th, and she was possibly having some occasional discomfort in the knee, but the range of motion looked good. Her strength looked good. I would say there was not a significant physical impairment of her extremity at that time.
Q: Is it safe to say, and once again I apologize, I know these are lawmen’s terms, but as you know Mrs. Fetzer today, based upon your last visit in late January of 2002, she is in good physical shape and not suffering from any permanent or partial disability, and she should be able to lead a life just as she had prior to July 9th, 2001?
A: I think that is correct. I still would indicate to you that the development of post traumatic arthritis is something that can occur several months to even two years or more following an injury. And my concerns would still he along those lines, that even though in January she appeared to be doing well, I don’t know that she — She is still at some risk for developing post traumatic arthritis in that knee.
Q: But as we sit here today in your deposition, you are not aware of any such condition, nor has anything been brought to your attention?
A: That is correct.
Q: Doctor, if I could — Let me ask you this and phrase it this way. You have indicated, apparently, that right now there is no indication that she would suffer from any arthritic condition as a result of this incident of July 9th of 2001?
A: What I indicated to you was that her knee was doing well the last time she was seen in this office. I do think she is at some risk of developing post traumatic arthritis in that knee in the future.
Q: I know it is difficult, but you can’t tell us with any reasonable degree of specificity or medical probability that she will, in fact, suffer such a condition in the future?
A: That is correct.

[¶ 7] Subsequently, Fetzer filed a Designation of Fact Witnesses on September 16, 2002. Dr. Randolph is identified as a fact witness who will testify about his examination and treatment of Fetzer. The designation also states that the doctor will give an opinion concerning “future expenses, and future disability, if any, of Rose Fetzer.”

[¶ 8] On November 11, 2002, three weeks before the trial was scheduled to commence, Fetzer met with Dr. Randolph for the first time since January of that year. After examining Fetzer, Dr. Randolph noted “post-traumatic arthritis involving the lateral compartment of the left knee” and that this condition was causing Fetzer pain. He concluded, “if the patient has failed more conservative treatment and continues to have severe pain in the left knee, total knee ar-throplasty may be necessary at some point in the future.” Fetzer notified Dayley of the visit and provided them with a copy of Dr. Randolph’s note summarizing his examination and conclusions on November 14, 2002, as part of the filing of her pretrial memorandum. The memorandum also included a description of the testimony each of Fetzer’s witnesses was expected to provide at trial. For Dr. Randolph, the pretrial memorandum stated that he would “testify concerning future medical expenses including those for treatment, surgery and rehabilitation.” A subsequent statement was more conditional in nature: “He will testify concerning future medical expenses which Rose Fetzer may incur including joint replacement and the estimated cost of that joint replacement. He will also testify that Rose Fetzer has arthritis at the point of injury.” Fetzer also provided to Dayley an x-ray of her knee taken during the November 11 examination.

[¶ 9] The ease proceeded to trial on December 4, 2002. During voir dire, Fetzer’s counsel mentioned that a doctor would testify, and that “we will ask him if he can testify to a degree of reasonable medical probability, which is the preponderance test” when asking the potential jurors if any of them had a “problem with that approach to the proof on the medical?” During his opening statement, Fetzer’s counsel went into more depth on what was expected from Dr. Randolph during the trial:

Dr. Randolph will go through and tell you of his visits with Rose Fetzer. He will tell you of the subsequent x-rays and what he found significant about those. And he will tell you that she has arthritis in that knee now, that it was not there before — and he’ll point that out to you — and that, to a reasonable degree of medical probability, she’s going to have to have a knee replacement.
Dr. Randolph will testify to his portion of the future medical bills and what costs will be done in his clinic, surgery fee. and the- — ■ the outpatient rehabilitation. We will call the chief financial officer from the Washak-ie Memorial Hospital — or Medical Center, they call it now — who will testify to what the hospital costs are for the knee replacement and for the Home Health therapy that is done as you go along.

After opening statements were completed, Dayley objected to the doctor’s proffered testimony. Dayley argued that it had not been provided timely notice that the doctor’s testimony had changed since his deposition, in which he had stated that he could not determine with a reasonable degree of specificity or medical probability that Fetzer would develop arthritis in her knee or would require knee replacement surgery. Dayley also contended that since Dr. Randolph’s deposition testimony was favorable to them on the issue of future medical damages, they decided not to designate their own expert for rebuttal. Dayley moved for the exclusion of the undisclosed testimony or, in the alternative, for a continuance of the trial.

[¶ 10] • The next day before the trial resumed, the court heard additional argument from counsel before concluding that it was obviously a surprise to the defense that Dr. Randolph would be testifying to future medical care requirements with a reasonable degree of medical probability and that testimony was inconsistent with his deposition. The court held that Dayley was entitled to sufficient notice to' prepare to respond to the testimony and that Fetzer had failed to provide that timely notice. Accordingly, the court ruled that all testimony and exhibits relating to future medical care and its cost were excluded. The exclusion applied to testimony from Dr. Randolph relating to the presence of arthritis in the knee, testimony on the cost of knee replacement surgery, and proposed exhibits consisting of Dr. Randolph’s note from Fetzer’s November 11th examination and the x-rays of her knee taken at that time. The court also instructed the jury that it could not award future medical costs.

[¶ 11] After trial, the jury returned a verdict finding Fetzer 25 percent negligent, Dayley 70 percent negligent, and unknown persons 5 percent negligent. The jury awarded Fetzer $38,895.00 in medical expenses, $25,000.00 in pain and suffering, and $15,000.00 for loss of enjoyment of life. They awarded no damages for physical disability nor on Fetzer’s husband’s claim for loss of consortium. After taking her percentage of fault into account, the district court entered a judgment in her favor for $55,226.91.

[¶ 12] After the judgment was entered, Fetzer filed a motion for a new trial citing the prejudicial effect of the court’s ruling excluding her evidence on future medical expenses. The court denied the motion. Fet-zer has appealed the jury’s verdict, the judgment, and the denial of her motion for a new trial in Case Number 03-155.

[¶ 13] At trial there was evidence presented that Mid-States was responsible for inspecting the project and ensuring compliance with safety requirements set out in the contract between Dayley and TCT West. Dayley’s position was that Mid-States bore some responsibility for the accident because it negligently failed to perform its duties. Dayley submitted two jury instructions that placed Mid-States, a non-party actor, on the jury verdict form for the assessment of comparative fault. The district court rejected the proposed jury instructions, and Mid-States was not included on the instructions given to the jury. In Case Number 03-156, Dayley appeals the court’s failure to include Mid-States on the jury verdict form. Dayley states that its appeal is conditional on this Court’s decision in Case Number 03-155: If the jury’s verdict is affirmed, Dayley requests that its appeal be dismissed.

STANDARD OF REVIEW

[¶ 14] We review rulings excluding proffered expert testimony based upon either a violation of a pre-trial order under W.R.C.P. 16(f) or as unfairly prejudicial under W.R.E. 403 because of surprise for an abuse of discretion. Winterholler v. Zolessi, 989 P.2d 621, 624-25 & 628 (Wyo.1999).

“ ‘Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236 (1985).’ ” Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998) (quoting Martin v. State, 720 P.2d 894, 897 (Wyo.1986)).

Winterholler, 989 P.2d at 624-25 (quoting Rogers v. State, 971 P.2d 599, 601 (Wyo.1999)); see also Smith v. Paiz, 2004 WY 14, ¶ 15, 84 P.3d 1272, ¶ 15 (Wyo.2004). In either situation, we have held that the following factors are relevant to the trial court’s determination:

(1) whether allowing the evidence would incurably surprise or prejudice the opposing party;
(2) whether excluding the evidence would incurably prejudice the party seeking to introduce it;
(3) whether the party seeking to introduce the testimony failed to comply with the evidentiary rules inadvertently or willfully;
(4) the impact of allowing the proposed testimony on the orderliness and efficiency of the trial; and
(5) the impact of excluding the proposed testimony on the completeness of the information before the court or jury.

Winterholler, 989 P.2d at 628 (citing Dada v. Children’s National Medical Center, 715 A.2d 904, 909 (D.C.1998)). The totality of the circumstances is considered when weighing these factors. Smith, ¶ 15 (quoting Dada, 715 A.2d at 909-10).

DISCUSSION

[¶ 15] In her appeal Fetzer contends that the district court erred when it excluded Dr. Randolph’s expert testimony and the accompanying exhibits. Her argument is two-pronged. First, she claims that Dayley had sufficient notice that Dr. Randolph would testify at trial about future medical expenses and the development of arthritis in Fetzer’s knee that would eventually necessitate knee replacement surgery. Fetzer insists that notice was provided to Dayley through various court filings, including her pretrial memorandum, and the submittal of various exhibits before trial, including Dr. Randolph’s note of the November 11 examination of Fetzer. Fetzer notes that Dayley .did not object to these exhibits. Accordingly, Fetzer concludes that Dayley was not surprised, and the district court erred when it found otherwise. Second, she contends that the district court’s remedy — the total exclusion of any evidence on future medical expenses — was too harsh. Fetzer argues that she was totally deprived of any opportunity to present her theory of the case, resulting in unfair prejudice to her and, consequently, an unfair trial.

[¶ 16] The record does not support Fet-zer’s contention on the question of notice. When Fetzer designated Dr. Randolph as an expert witness, she stated that he would testify “consistent with any deposition that he may give.” Fetzer’s designation of Dr. Randolph also stated that the doctor would testify as to future medical expenses, including joint replacement, and that Fetzer would have arthritis at the point of injury. However, in his deposition given on July 11, 2002, Dr. Randolph testified that Fetzer did not have arthritis at the point of injury at that time and that he could not “with any reasonable degree of specificity or medical probability” state that she would, in fact, develop such a condition in the future. Dayley reasonably relied upon Dr. Randolph’s deposition testimony to conclude that it did not have to retain a medical expert for trial. Thereafter, Dr. Randolph changed this opinion after examining Fetzer on November 11, 2002. The only possible source of notice to Dayley of this change was Fetzer’s pretrial memorandum, filed on November 14, 2002 along with Dr. Randolph’s note of the November 11 examination: In that filing, Fet-zer described Dr. Randolph’s anticipated testimony at trial:

Dr. Randolph is expected to testify and offer his opinion concerning diagnosis, treatment and prognosis of the Plaintiff Rose Fetzer following her injury on July 9, 2001. Dr. Randolph is expected to testify utilizing his medical records as well as the medical records from the Washakie Medical Center in Worland, Wyoming. He is expected to testify as an orthopedic surgeon, concerning his communications with the patient and his observations of her. He^-will testify and offer his opinion regarding the severity of the injury and damage sustained by Rose Fetzer. He will also testify concerning future medical expenses including those for treatment, surgery and rehabilitation.
Dr. Randolph has been designated as a fact witness, but he is herein designated as an expert witness. As an expert'in orthopedic surgery, he will testify concerning the transfer of the patient from Midway Clinic in Basin, his initial examination of Rose Fetzer, his impression and opinion of the injury together with its severity, the surgical procedure that he utilized, his consultations with Rose Fetzer, and her prognosis. He will testify concerning future medical expenses which Rose Fetzer may incur including joint replacement and the estimated" cost of that joint replacement. He will also testify that Rose Fetzer has arthritis at the point of injury.

In the note, Dr. Randolph stated that there was evidence of post-traumatic arthritis and that Fetzer “may ultimately require total knee arthroplasty.”

[¶ 17] Compare that language with that used in Fetzer’s designation of fact witnesses, which was filed on September 16, 2002 after Dr. Randolph’s deposition but before the examination that resulted in a change of his expert medical opinion:

Dr. Randolph will testify as the treating physician of Rose Fetzer. He has also been designated as an expert witness. He will testify concerning his examination, treatment, diagnosis and prognosis for Rose Fetzer. To all elements of damage including the extent of the injury, what treatment he undertook, and his opinion concerning future expenses, and future disability, if ahy, of Rose Fetzer. He will also testify concerning the records from his office and he mil also testify concerning the balance of, reasonableness and necessity of expenses incurred in his office. Dr. Randolph will testify concerning his examination, treatment, diagnosis and prognosis for Rose Fetzer. He will testify ,as to all elements of damage including the extent of injury, what he did to undertake treatment and his opinion concerning future permanent disability, if any. He will further testify to the necessity for the prescribed treatment.

There is no appreciable difference in the language between the two filings. The most that could be said is that the designation of fact witnesses used the qualifier “if any” while the pretrial memorandum contained declaratory statements with the exception of the reference to knee replacement, which was qualified by the use of the word “may.” The point is, however, there is no specific language in the pretrial memorandum that would alert Dayley to the fact that the doctor’s expert medical opinion had changed since the deposition was taken or since the designation of fact witnesses was filed. The burden of timely disclosing her evidence was on Fetzer. Dayley should not be expected to parse the language of court filings to determine whether Fetzer’s expert witness had changed his medical opinion regarding knee replacement surgery and the development of arthritis in her knee. It was Fetzer’s duty to explicitly and clearly convey that information to Dayley in as timely a manner as possible to allow for trial preparation. Fetzer did not do so until her opening statement at trial. Under the circumstances of this case, that was clearly a surprise to Dayley.

[¶ 18] Fetzer also challenges the district court’s remedy. We conclude that the court did not abuse its discretion when it excluded all testimony/ánd evidence related to future medical expenses for Fetzer’s failure tp timely disclose the change in her expert’s medical opinion.

[¶ 19] We address this issue with the factors set out in the Standard of Review section of this opinion in mind. There is no question that the ruling excluding Fetzer’s evidence relating to future medical expenses was incurably prejudicial to her: Fetzer was prevented from presenting her claim for damages to the jury and to that extent, the impact of excluding the proposed testimony on the completeness of the information before the jury was total. There is no indication in the record that Fetzer’s failure to provide timely notice was willful. However, the effect of the court’s ruling on Fetzer must be balanced by consideration of the impact of her failure to timely disclose the change in her medical expert’s opinion on the opposing party and the court. As the district court noted in making it’s ruling, Dayley had relied on Dr. Randolph’s deposition testimony and had, therefore, not investigated the need to retain a medical expert. Since the change in Dr. Randolph’s opinion was not disclosed until after trial had commenced, Dayley was placed in an impossible position. Their ability to respond to Fetzer’s evidence was incurably prejudiced because they could not effectively respond to it once trial had started.

[¶20] Similarly, the district court noted that a continuance was impractical given the status of the proceedings. Obviously, once trial had commenced, the impact on the orderliness and efficiency of the trial of allowing the testimony coupled with the need to give Dayley a reasonable opportunity to respond would have been significant. We have noted before that, “the trial court [may] accord greater weight than previously allowed for prejudice caused by delay to the overall administration of justice.” Smith, ¶ 15. Obviously, the closer to trial before evidence is disclosed, the greater the impact on the trial court’s administration of its docket.

[¶ 21] Compare the situation confronted by the district court in this case with that in our decision in Winterholler. In that case, the plaintiffs retained a new medical expert witness after their original expert had to withdraw for health reasons. The plaintiffs inadvertently failed to give the defendant notice of the change in expert witnesses. The defendant learned of the substitution eight weeks before trial and moved to exclude his testimony. The district court granted the defendant’s motion. On appeal, we reversed holding that the total exclusion of the expert’s testimony created greater prejudice to the plaintiff than that incurred by the defendant despite the surprise inherent in the failure to disclose because the defendant still had eight weeks before trial to prepare when he learned of the change of experts. 989 P.2d at 628. Here, Dayley had no opportunity to prepare for trial because the disclosure occurred after trial had commenced. When all of these factors are weighed together, we cannot say that the district court abused its discretion by concluding that the balance required the exclusion of Fetzer’s expert medical testimony.

[¶ 22] In its appeal in Case Number OS-156, Dayley requested that if the verdict and judgment were affirmed in Case Number OS-155, its appeal on the district court’s jury instructions be dismissed. We hereby grant that request and dismiss the appeal in Case Number 03-156.

CONCLUSION

[¶ 23] The district court did not abuse its discretion when it excluded evidence and testimony related to Fetzer’s claim for future medical expenses because of her failure to timely disclose her medical expert’s opinion testimony. Case Number 03-155 is affirmed, and Case Number 03-156 is dismissed.

      . W.R.C.P. 16(f):
      If a party or a party's attorney fails to obey a scheduling or pretrial order, or if no appearance is made on behalf of a party at a scheduling or pretrial conference, or if a party or party's attorney is substantially unprepared to participate in the conference, or if a party or party's attorney fails to participate in good faith, the judge, upon motion or the judge's own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C) and (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney representing the party or both to pay the reasonable expenses incurred because of any noncompliance with this rule, including attorney's fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.
      The sanctions found at W.R.C.P. 37(b)(2)(B), (C) and (D) include: an order refusing to allow the disobedient party to support or oppose a particular claim or defense or prohibiting that party from introducing designated matters into evidence; an order striking out pleadings or parts of them, staying the proceedings until the disobedience is corrected, dismissal of the action or any part of it or the entry of a judgment by default; and/or an order of contempt against the offending party.

      . W.R.E. 403:
      Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

      . Briefly, we note that Fetzer also claims that while she was prohibited from addressing future medical expenses, Dayley was allowed to elicit testimony from Dr. Randolph showing that her arthritis was not related to her injury. A review of the record shows that Dayley was allowed to question Dr. Randolph on the issue of whether a preexisting condition — rheumatoid arthritis — of Fetzer's was unrelated to her injury. Dayley notes that the questioning was necessary to prevent any confusion with the jury regarding the nature of Fetzer’s injuries. We fail to see how this line of inquiry was prejudicial to Fetzer. It was not related to the question of future medical expenses; rather, it went to issues before the jury including the question of Fetzer's pain and suffering and what damages were appropriately attributable to her injury versus her preexisting condition. There was no error in Dayley's questioning of Dr. Randolph on this issue.