A third-party tortfeasor may not seek indemnification and contribution from a negligent co-worker for a plaintiff's injuries.

The plaintiff was employed as a field technician. On September 23, 2008, while in the course of his employment, the plaintiff was driving an employer-owned vehicle. He stopped at a red light, and his co-worker, who was operating another employer-owned vehicle, stopped directly behind the plaintiff. An eighteen-wheel truck, operated by the defendant, was behind the co-worker in the same lane of travel and failed to stop at the intersection, rear-ending the co-worker's vehicle, which, in turn, struck the plaintiff's vehicle, causing it to lunge forward. The plaintiff and the co-worker filed separate claims with the Division of Workers' Compensation for their respective injuries arising out of the accident. Additionally, the plaintiff and co-worker filed complaints in Superior Court against the defendant and his employer. In addition to answering the plaintiff's complaint, the defendant filed a third-party complaint against his co-worker, alleging that his negligent operation of his employer's vehicle contributed to the plaintiff's injuries. This third-party action sought indemnification and contribution from the co-worker. The plaintiff moved to dismiss the defendant's third party action pursuant to N.J.S.A. 34:15-8, the selection of remedies provision of the Workers' Compensation Act (the Act). That section provides, in relevant part, that: "A person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong." The plaintiff's motion asserted that the third-party suit must be dismissed as it was tantamount to the plaintiff's prosecuting a negligence claim directly against a co-worker. The court denied the plaintiff's motion, and he appealed. In reversing the lower court's ruling, the Appellate Division opined that N.J.S.A 34:15-8 was designed to further the Act's fundamental premise that employers bear the expense of workers' injuries in exchange for immunity from tort action. That same statutory provision also imposes an immunity bar to foreclose suit against a negligent co-worker. As the Appellate Division reasoned, the purpose of the Act's co-worker immunity provision was not so much to protect the fellow servant from liability as it was to protect the employer from paying twice, once through compensation and a second time through indemnification of the fellow servant against the injured employee's judgment. The Appellate Division accordingly concluded that there was no discernable difference between the nature and purpose of the Act's grant of immunity to bar suit against an employer or against a co-worker. "Without question," the Appellate Division held, "and regardless of his degree of fault, [the co-worker], like the employer, is immune from any suit brought by Plaintiff."

Case Law Alert - 4th Qtr 2011