06-27-07 A-4993-05T1
This is an automobile accident personal injury negligence
case. Plaintiff and defendant were both pizza delivery drivers
engaged in the course of their employment when their vehicles
collided. Defendant asserted the bar of the Workers
Compensation Act (Act) as an affirmative defense in his answer
to plaintiff's complaint. Plaintiff's counsels' actions during
the course of the litigation lulled defense counsel into
mistakenly believing that the fellow-servant rule was not a
viable defense to plaintiff's cause of action. After belatedly
becoming informed of the viability of the defense, defendant one
week prior to the scheduled trial date, asserted the defense as
a bar to plaintiff's complaint. We found that equitable
principles and the strong public policy underpinnings of the
fellow-servant provision supported the trial judge's finding
that defendant did not waive his workers compensation defense by
his late assertion of the defense.
