On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6007-03.
The opinion of the court was delivered by: Holston, Jr., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman, Holston, Jr. and Grall*fn1.
This is an automobile accident personal injury negligence case. Plaintiff, Mohammad Ahammed, appeals the Law Division's January 19, 2006 order denying his motion to strike defendant Jeffrey P. Logandro's affirmative defense that plaintiff's cause of action is barred by the exclusive remedy contained in N.J.S.A. 34:15-8, the fellow-servant provision of the Workers' Compensation Act (the Act), N.J.S.A. 34:15-1 to -128. Plaintiff also appeals the April 28, 2006 order granting summary judgment to defendant and dismissing plaintiff's cause of action with prejudice. Plaintiff contends that because defendant participated in mandatory arbitration without raising the defense of the worker's compensation bar, stated in his answer to an interrogatory question that the only statutes upon which he would rely were sections of the motor vehicle code, and defense counsel knew that plaintiff's counsel would continue to engage in costly discovery in preparation for trial, defendant should be deemed to have waived his right to assert the affirmative defense. Based upon equitable and public policy considerations which we will discuss herein, we disagree with plaintiff's argument and affirm.
On January 2, 2002, plaintiff was involved in a motor vehicle accident with defendant. Plaintiff was operating his personal automobile and exiting a strip mall where his employer, Domino's Pizza (Domino's), was located. Defendant, also an employee of Domino's, was entering the mall operating a car owned by his father, Anthony Logandro, when the collision occurred.*fn2 Both were employees of Domino's and were acting in the course of their employment at the time of the accident. Although each knew that the other worked as a pizza delivery driver for Domino's, neither knew that the other was actually in the course of his employment at the time of the accident.
Domino's was insured for workers' compensation by Selective Insurance Company (Selective). Plaintiff was insured for personal injury protection (PIP) benefits through his personal automobile liability policy with State Farm Insurance Company (State Farm). Defendant, as a permissive user of his father's vehicle, was insured for liability through his father's automobile liability policy with AAA Mid-Atlantic (AAA).
Shortly after the accident, plaintiff retained Richard P. Console, Jr., Esquire, to pursue a claim for damages for his personal injuries. On January 28, 2002, Console sent a letter to Domino's advising it of his representation of plaintiff, as a result of plaintiff's automobile accident with its employee, defendant. The letter stated:
And as a result the negligence of Logandro is imputed to Domino's Pizza, and we would therefore ask that you forward this letter to your insurance carrier to get in touch with us within the next ten days to discuss the matter.
In his March 22, 2006 deposition testimony, Brian Evringham, the owner of the Domino's franchise where plaintiff and defendant worked and thus the employer of both, testified that a couple of weeks after being informed of the accident he reported the accident to Selective. He was confident that he had forwarded Console's January 28, 2002 letter to Selective. Selective wrote a letter acknowledging Evringham's report, which was followed by an inquiry from a Selective adjuster.
By letter dated February 4, 2002, Jenna Erbs, a claims representative for Selective, wrote a letter to plaintiff at his home address informing him that she was the adjuster for Domino's insurance carrier. She advised plaintiff that Selective was aware of his involvement in a "work-related" automobile accident on January 2, 2004 and that plaintiff should contact her to discuss the details of his claim and of any benefits to which he might be entitled. She informed him that under the workers' compensation statute, Selective had the right to choose his treating physician. Thus, he should contact her for referral to an authorized doctor.
Evringham testified that plaintiff and defendant, as pizza delivery drivers, are paid an hourly rate, receive tips, are compensated for the use of their car, and are not permitted to work for another pizza company while employed at Domino's. Evringham confirmed that both drivers were paid by check, payroll taxes were deducted, and they were issued a W-2. Evringham verified that both drivers were in the course of their employment at the time of the accident.
On February 27, 2002, Console followed up on his January 28, 2002 letter to Domino's. He enclosed a copy of the police report, asked Domino's to put its insurance carrier on notice, and requested that the carrier contact him as soon as possible.
Plaintiff filed a personal injury negligence complaint against defendant on October 29, 2003. Domino's was not a named defendant. Plaintiff's complaint did not indicate that he was in the course of his employment with Domino's when the accident occurred.
In December 2003, Console wrote to AAA to "present and settle" plaintiff's personal injury claim. He included a medicals package, which contained invoices from medical providers, all of which had been paid by State Farm. On January 7, 2004, AAA adjuster, Alicia Gatt, replied to Console's letter. She requested Console to clear up the issue of compensation eligibility with documentation. She asked for clarification because in her file notes was a Selective written communication of March 22, 2002, placing AAA on notice of a workers' compensation lien.
On January 28, 2004, Console forwarded a letter to AAA enclosing written confirmation from Selective that there was no workers' compensation lien, as Selective had paid no benefits. Console requested AAA's best offer to resolve plaintiff's personal injury claim. Gatt confirmed with Console's office on February 25, 2004 that plaintiff had received PIP benefits from State Farm, not workers' compensation, and requested a copy of the declaration page and tort threshold from State Farm. On March 4, 2004, AAA denied plaintiff's claim based on Gatt's opinion that plaintiff had failed to pierce the verbal threshold.
Upon receipt of the summons and complaint, the file was transferred to AAA's counsel, Nicholas Benedetti, Esquire. He reviewed the file and discussed the matter with Gatt. The discussion included all possible defenses, as well as the ...