APPEAL from the Circuit Court of Cook County; the Hon. PAUL F.
ELWARD, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
This interlocutory appeal is brought by defendants, Time D.C., Inc., and Albert Jensen, pursuant to the provisions of Supreme Court Rule 308 (Ill. Rev. Stat. 1977, ch. 110A, par. 308). Rule 308 allows this court to permit an appeal to answer a question of law as to which there is substantial ground for difference of opinion, the answer to which would materially advance the ultimate termination of the litigation. We granted permission to appeal an order entered in the circuit court of Cook County granting plaintiff's motion for summary judgment on the issue of defendants' liability for plaintiff's personal injuries arising out of a multivehicle accident.
We are asked on this appeal to interpret the language of section 22(4) of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 22(4)), which says:
"A judgment in an action brought and conducted by a subrogee by virtue of the subrogation provision of any contract or by virtue of any subrogation by operation of law, whether in the name of the subrogor or otherwise, is not a bar or a determination on the merits of the case or any aspect thereof in an action by the subrogor to recover upon any other cause of action arising out of the same transaction or series of transactions."
The question presented is: When a defendant has lost a judgment in a property damage action brought by the insurer-subrogee, can the plaintiff-subrogor in his subsequent action for personal injuries arising out of the same occurrences that gave rise to the property damage claim assert that defendant is collaterally estopped from relitigating the issue of defendant's liability for negligence?
We hold that, because of the provisions of section 22(4), plaintiff cannot assert that defendant is collaterally estopped from relitigating the issue of defendant's liability for negligence. Hence, we reverse the order of the trial court granting plaintiff's motion for summary judgment and remand for further proceedings.
The facts in this case are not in dispute.
On January 24, 1975, a multivehicle accident occurred on the Dan Ryan Expressway in Chicago. Plaintiff, Robert E. Landrum, was the driver of one vehicle. Plaintiff was allegedly injured and his vehicle was damaged. Defendant Jensen was the driver of another vehicle. At the time, Jensen was an employee of defendant Time D.C., Inc., and was allegedly acting within the scope of his employment.
Subsequently, plaintiff was reimbursed by his insurance company for the damage that occurred to his vehicle. The insurance company then brought an action against defendants, in plaintiff's name, to recover the amount it had reimbursed to plaintiff. At the time, plaintiff, who was (and still is) represented by the same counsel as his insurance company, joined in the complaint and brought an action against defendants for his personal injuries. Thereafter, plaintiff voluntarily dismissed his claim for personal injuries without prejudice, and defendants filed their answer to the property damage claim.
This original action went to trial and the jury returned a verdict finding defendants liable in negligence for the property damage done to plaintiff's vehicle. By answer to special interrogatory, the jury also found that plaintiff was free from contributory negligence. A judgment was entered against defendants; whereupon, plaintiff brought this action against defendants for his personal injuries.
Defendants answered plaintiff's complaint and denied all of the material allegations in the complaint. Plaintiff then moved for summary judgment on the issue of defendants' liability. The basis of his motion was estoppel by verdict (collateral estoppel). Plaintiff asserted that defendants were estopped from denying that they were liable in negligence or that plaintiff was free from contributory negligence because of the prior judgment in the property damage action.
In answer to plaintiff's motion, defendants asserted the provisions of section 22(4) of the Civil Practice Act. Defendants contended that, under the statute, the prior judgment obtained by the insurer-subrogee could have no effect on the present case. The trial court granted plaintiff's motion, holding that section 22(4) was intended by the legislature to protect only a plaintiff-subrogor when a defendant had won a judgment in the prior action brought by the subrogee and was not intended to protect a defendant who had lost the prior judgment. Upon defendants' request, the trial court certified the question of law presented to this court.
Defendants assert that the language of section 22(4) of the Civil Practice Act is clear and unambiguous and must be interpreted in their favor. The statute says that the judgment entered in the prior action brought by the subrogee (insurer in this case) is not a "bar" to a subsequent action brought by the subrogor (plaintiff in this case). The statute also says that the prior judgment shall not act as a "determination on the merits of the case or any aspect thereof" in the subsequent action by the subrogor-plaintiff. According to defendants, this latter clause can only mean that the issues determined in the prior ...