The opinion
Clifford F. Brown, J.,
dissenting. I find the doctrine of res judicata inapplicable to this case. We do not deal with the effect of a prior judgment on a later court action, but the effect of a prior lawsuit on contractual rights. See AutoOwners Ins. Co. v. Higby (1976), 69 Mich. App. 485 , 245 N.W. *176 2d 102 , and Farm Bureau Mutual Ins. Co. v. Bower (1978), 87 Mich. App. 305 .1 find no authority for the proposition that the principle of res judicata applies to nullify or control arbitration provisions in a contract.
Issues decided in a legal action are not binding upon the arbitrators in an arbitration proceeding between the same parties where the contract providing for arbitration contains a clear intent to ignore prior legal proceedings between the contracting parties. This clear intent of the contracting parties is contained in that part of the uninsured motorist provision excerpted in the majority opinion which, in part, reads as follows:
“***pr0Vided, for the purposes of this coverage, determination as to whether the INSURED or such representative is legally entitled to recover such damages and if so the amount thereof, shall be made by agreement between the INSURED or such representative and the company or, if they fail to agree, by arbitration.”
On the other hand, the principle of res judicata is that material facts or questions which were in issue in a former suit and were there judicially determined by a court of competent jurisdiction are conclusively settled by a judgment therein so far as concerns the parties to that action and persons in privity with them with reference only to a future legal action. Such material facts and questions become res judicata and cannot be litigated in any future legal action between the same parties or privies in a collateral suit in the same or any other court. Trautwein v. Sorgenfrei (1979), 58 Ohio St. 2d 493 ; LaBarbera v. Batsch (1967), 10 Ohio St. 2d 106 ; Norwood v. McDonald (1943), 142 Ohio St. 299 ; State, ex rel. Kopchak, v. Lime (1975), 44 Ohio St. 2d 3 ; 32 Ohio Jurisprudence 2d 438-439, Judgments, Section 229.
Clearly, the contracting parties here intended that any uninsured motorists claim be determined solely “by agreement between the INSURED or such representative and the company or, if they fail to agree, by arbitration.” The parties exclude the right to a determination of the uninsured motorists claim in court, thereby precluding application of res judicata principles.
I would also affirm the Court of Appeals based on Uni *177 versal Underwriters’ failure to furnish “written consent” to be bound by the judgment, as required by the insurance contract. 2 Absent such written consent, the insured is entitled to arbitrate his claim as specified by the language in the contract, language selected by the insurance carrier. Auto Owners Ins. Co. v. Higby, supra; Monaghan v. J. C. Penney Cas. Ins. Co. (1977), 57 Ohio Misc. 11 ; Mailman v. Motor Veh. Acci. Indem. Corp. (1962), 36 Misc. 2d 825 , 235 N.Y. Supp. 2d 14.
For all these reasons the Court of Appeals’ judgment in favor of defendants should be affirmed.
W. Brown, J., concurs in the foregoing dissenting opinion.
The insurance contract issued by Universal Underwriters Ins. Co. to Shuff contained the following provisions:
“No judgment against any person or organization alleged to be legally responsible for the BODILY INJURY shall be conclusive, as between the INSURED and the company, of the issues of liability of such person or organization or of the amount of damages to which the INSURED is legally entitled unless such judgment is entered pursuant to an action prosecuted by the INSURED with a written consent of the company".