extending the doctrine of issue preclusion to include defensive use of judgments by “strangers” to the action in which the judgment was rendered
How later courts described this case
- extending the doctrine of issue preclusion to include defensive use of judgments by “strangers” to the action in which the judgment was rendered
- “ ‘The doctrine of res judicata’ is well established, and it may exist under two situations: (1) as a bar to a second action upon the cause of action, and (2
Written by the judges who cited it.
The opinion
BECKER, Justice
(dissenting).
I respectfully dissent.
I. The majority recognizes that one of the “most important factors in determining availability of the doctrine of collateral estoppel is * * * whether the party adversely affected * * * had a full and fair opportunity to litigate the relevant issue effectively * *
In stating its position on collateral estop-pel the majority of the Court of Appeals of New York stated in Schwartz v. Public Administrator of Co. of Bronx, 24 N.Y.2d 65 , 298 N.Y.S.2d 955, 960 , 246 N.E.2d 725, 729 (1969):
“ * * * New York Law has now reached the point where there are but .two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling.”
It seems to me that Justice Bergan’s dissent in the same case goes to the second requirement. When a full and fair opportunity to contest the issue is considered the circumstances under which the issue was tried and the posture of the parties is important — often decisive. In this respect the position of the insurance carrier as an unnamed party who is in a position to control the defensive posture of the case must be considered. See discussion at 39 Iowa L. Rev. 255 , 293.
Where the party has not in fact had his day in court he should not be precluded. If, as seems to be the case here, the issues have been presented on behalf of one of the parties by the insurance carrier whose *918 posture is wholly defensive, 1 this should not necessarily preclude the party from litigating his offensive position either in the same case or in a later case. Justice Bergan’s dissenting opinion in Swartz v. Public Administrator of Co. of Bronx, 24 N.Y.2d 65 , 298 N.Y.S.2d 955, 964, 967 , 246 N.E.2d 725, 732, 734 (1969), points up the problem and rejects the easy solution of throwing the party out of court. The following quotation is apropos:
“Law is more than a congeries of neat logical packages quite consistent with each other. It is more essentially an ongoing method of reaching pragmatic approximations of fairness in myriads of human situations where absolutes of right and wrong either do not exist at all or rest on ideas only theoretically related to real life situations. * * *
“Judge Breitel noted this effect in his dissent in [DeWitt v. Hall] Hall ( 19 N.Y.2d 141, 149 , 278 N.Y.S.2d 596, 603 , 225 N.E.2d 195 , 200 supra): ‘As for the offsetting disadvantages of duplicating the trial of issues in litigation, this does not weigh heavily in measuring the balance of convenience. The present rules in this area have subsisted for a long time and there is no great amount of such duplicated litigation.’ ”
See also the Arizona Court of Appeals’ reasoning when it declined to allow the “offensive” use of collateral estoppel:
“ * * * While this court believes that our system of justice has no peer in this fallible world, nevertheless, it is unable to consider that our trial processes unerringly discover Truth. The selection of the judge and jury, the choice of counsel, the availability of witnesses, the manner of the presentation of their testimony, the dynamics of the rapport between witnesses and fact-finder, and the personalities and appearances of the parties as they impress the fact-finder in various ways, are all matters that defy scientific analysis, are affected by fortuitous circumstances and variously determine the outcome of a contest conducted in the courts of this country.” Spettigue v. Mahoney, 8 Ariz.App. 281 , 445 P.2d 557, 562 (1968).
One might well add that the inter-relationship between the parties is important. This case is a good illustration. Goolsby could not sue his employer (cross-defendant here) and elected not to sue his fellow employee. As the case was first tried the jury had to find against the Derby estate or force the innocent passenger to go uncompensated.
The issues between Derby and cross-petitioner pose an entirely different problem to the jury. Here the case is between the two real protagonists, one or both of whom was at fault. 2 A verdict for the Derby estate would be logically inconsistent with the former verdict but it would not necessarily be either unjust or irrational.
II. It seems to me this case raises some serious problems concerning separate trials. Here the court decided the issue should be litigated separately. It is true this was on Derby’s application. The result is that the cross-petitioner’s offensive posture against a third party was destroyed by reason of the issue preclusion' — claim preclusion dichotomy. The impact of this case on the decision to separate issues for independent trial has not been fully considered.
Cases of this type do not usually involve trial of different issues in the same case. Usually two or more cases are involved. Two law review articles, Impacts of Defensive and Offensive Assertion of Collateral Estoppel, 35 George Washington L.Rev. 1010, 1029 and Estoppel by Rule: The *919 Compulsory Counterclaim, 39 Iowa 255, 292 , speak of the desirability of getting all issues and, if possible, all parties into one action. The authors do not consider what should happen when, as here, the parties are in fact all brought together but for some extraneous reason the issues or parties are properly tried separately. In such a case is the defensive posture thus forced on one party to hind him for all time as to his offensive position in relation to different parties ?' If so, the decision to allow separate trial of issues in a case like this one has unsuspected and unlooked for consequences. •
The pretrial order read in part as follows :
“(1) Pursuant to the motion of the defendant, not resisted by the plaintiff, the Court hereby orders a separate and later trial of the issues raised by the cross-petition of the defendant filed herein, and the answer of the ;cross-petition defendant, all as permitted by R.C.P. 186.”
Derby had a right to assume it would be abfe to litigate its claim at a later trial. The court so ordered in clearest possible terms. Cross-defendant consented to this arrangement. This valuable right to later litigation should not be taken away on the collateral estoppel theory. If any estoppel is imposed it should be against cross-defendant which consented to the arrangement.
The very basis for collateral estoppel is not present here. It is to save multiple trials. The case was so pled as to allow a consolidation. The court made a conscious choice to forego this economy. What is the real rationale for now imposing collateral estoppel? I can see none.
I am unaware of any case that goes into this matter. Perhaps the accident of consolidated litigation, followed by separate trials, should not affect the final decision, Yet, I think it is an additional factor weighing against issue preclusion.
Under the circumstances shown here I would allow cross-petitioner to litigate its claim against cross-defendant.
. Two sets of lawyers for the estate are involved. It is not , clear whether one set is wholly paid by the insurance carrier.
. The derivative nature of eross-defendant’s exposure is immaterial here.