NJ Underlining collection action for workers comp benefits.
Student Contributor: Anthony J. Forzano
Facts: A hospital brought action against deceased patient’s estate, his employer, and employer’s workers’ compensation insurer for payment of medical bills. It also includes a cross-claim by the compensation petitioner against the compensation carrier for counsel fees in defending against the medical providers’ action. The Plaintiffs named their attorney as a party in this action solely for the purposes of obtaining discovery. Shortly before a scheduled trial date, plaintiffs then moved for permission to file a claim against their attorney for malpractice on the grounds that he failed to protect their claim in the compensation proceedings. Their motion was denied because of the impending trial date. During the argument on the motions for summary judgment, plaintiffs asked for permission to dismiss their complaint against the attorney without prejudice. The attorney opposed. The trial court agreed with plaintiffs, and the attorney now seeks to reverse the “without prejudice” aspect of the order. The attorney claims he should not have to face a substantive action because plaintiffs knew all the facts bearing on that claim when they filed their initial suit. Plaintiffs respond that they should not be foreclosed from pursuing their malpractice claim.
Issue: Does a voluntary dismissal of a claim against an attorney, filed only for the purpose of discovery, preclude a subsequent filing of a legal malpractice action?
Ruling: The Court held that the dismissal without prejudice was entered pursuant to Rule 4:37-1(b). Under that rule, the court may impose “such terms and conditions as the court deems appropriate.” R. 4:37-1(b). The main object of this rule is “to protect a litigant where a termination of the proceedings without prejudice will place him in the probable position of having to defend, at additional expense, another action based upon similar charges at another time”. Since the attorney was only sued for purposes of discovery, it did not defend against a malpractice claim. Therefore, the dismissal without prejudice would not expose it to another action on similar charges.
Lesson: In this case, a voluntary dismissal of medical providers’ claim against attorneys, filed for purposes of discovery, did not prevent subsequent filing of action for legal malpractice, where second action was not based on same allegations. In general, the court will not enforce an estoppel when the subsequent malpractice allegations are based on a different set of facts.