In an Unusual Chain Reaction Vehicle Accident Case, The Appellate Division Says “No” to Disqualification of Counsel

McDaniel v. Lee, 419 N.J. Super. 482 (App. Div. 2011).  The merits issue on this appeal was “whether N.J.S.A. 34:15-8, the fellow-servant provision of the Workers’ Compensation Act, …, N.J.S.A. 34:15-1 to -128, which prohibits co-workers involved in a work-related accident from suing each other, also bars a third-party action by a tortfeasor against plaintiff’s co-worker.”  Writing for the Appellate Division, Judge Lihotz concluded that it does.  But the issue was sufficiently close that the panel affirmed the denial of frivolous litigation sanctions.  “Sanctions are not to be issued lightly; they are reserved for particular instances where a party’s pleading is found to be ‘completely untenable,’ or where ‘no rational argument can be advanced in its support.'”  Here, there was “sufficient legal uncertainty” about the viability of the claim that the case could not be found “completely untenable.”

The most interesting issue involved a demand for disqualification of the attorney who represented both employees.  The case involved a chain reaction vehicle accident.  Plaintiff, McDaniel, and a co-worker, Devers, were driving in separate vehicles of their employer.  McDaniel stopped at a red light and Devers stopped behind him.  Defendant Lee, a truck driver, slammed into the vehicle that Devers was driving, and Devers in turn hit McDaniel’s vehicle.  Both McDaniel and Devers sued Lee and his employer.  The same attorney represented both McDaniel and Devers.

Lee sought to disqualify the attorney from representing both McDaniel and Devers.  The Law Division denied the motion.  The Appellate Division affirmed.  

At a superficial level, the case seemed similar to the classic conflict situation that arises when the same attorney represents both the driver and a passenger in an auto accident.  But Judge Lihotz found the situations distinguishable.  “[T[he question presented here differs from the conflict of interest existing when the same attorney represents both a passenger and a driver injured in the same accident, because here the co-employee is immune from suit….  [McDaniel] may not sue Devers and vice versa, and we have rejected Lee’s conjecture that Devers could be liable to Lee.”  Thus, there was no possible conflict of interest between McDaniel and Devers.