The opinion of the court was delivered by: Grady, District Judge.
This is a diversity action in which the plaintiffs seek to
recover damages for personal injuries and property damage from
defendants on theories of negligence, product liability and
breach of warranty. The action arises out of an accident
involving a tractor which was pulling a semi-trailer. The
accident was allegedly caused by a defective wheel assembly. One
defendant, Reliable Truck Parts, Inc. ("Reliable"), filed a
motion for summary judgment which was granted on the specific
ground that "it did not sell the defective wheel so it cannot be
held liable on a theory of products liability, negligence or
breach of warranty." Memorandum Opinion, p. 5 (McGarr, J., filed
March 7, 1980). Thereafter, another defendant, Columbus I-70 West
Auto-Truck-stop, Inc. ("Columbus"), filed a motion for summary
judgment which was denied on December 22, 1980. On February 23,
1981, Columbus filed a third-party complaint against the
dismissed defendant Reliable, claiming that it was responsible
for selling the allegedly defective wheel and that it is liable
to Columbus on an indemnity theory. Reliable moves to dismiss the
third-party complaint on the ground of collateral estoppel. They
contend that the Memorandum Opinion of March 7, 1980, acts as a
bar to the third-party complaint.
Columbus argues that parties to a judgment are not bound by it
in a subsequent third-party action unless they were adversaries
in the action in which the judgment was entered. They state that
since they were co-defendants with Reliable and were advancing
the same contentions, they were non-adversaries. Under Illinois
law, parties do not have to be on opposite sides for collateral
estoppel to apply. Diamond
Shamrock Corp. v. Lumbermens Mutual Casualty Co., 416 F.2d 707,
710 (7th Cir. 1969); Stangle v. Chicago R.I. & P.R. Co.,
295 F.2d 789 (7th Cir. 1961); Rose v. Dolejs, 7 Ill.App.2d 267,
129 N.E.2d 281 (2nd Dist. 1955) (judgment was conclusive between
codefendants; estopped from again litigating issue against his
prior co-defendant). Codefendants who merely advance the same
contentions can be adversaries. This is especially true when the
case involves product liability and breach of warranty theories
against those defendants. See Provident Tradesmens B. & T. Co. v.
Lumbermens Mutual Casualty Co., 411 F.2d 88, 93 (3rd Cir. 1969)
(evaluate "the practical realities which surround the parties" in
applying collateral estoppel).
Columbus argues that since it did not resist the efforts of
Reliable to obtain summary judgment, it is not conclusive against
them in this action. Issues created by formal cross-pleadings do
not have to exist for collateral estoppel to apply. Stangle v.
Chicago R.I. & P.R. Co., 295 F.2d 789, 790-791 (7th Cir. 1961).
It is too late for Columbus to urge now, after the motion was
granted more than one year ago, that its decision not to contest
Reliable's motion should be viewed as non-adversarial or in
fairness disregarded. As a co-defendant, Columbus had adequate
opportunity to contest the original summary judgment motion.
Karon v. E.H. Marhoeffer, Jr. Co., 14 Ill.App.3d 274,
302 N.E.2d 478, 481 (1st Dist. 1973).
Columbus contends that newly discovered evidence was
unavailable at the time Reliable's motion for summary judgment
was granted. Specifically, Columbus refers to the affidavit of
one of the plaintiffs, Arthur G. Hurst. A party against whom
collateral estoppel is asserted has the burden of demonstrating
that newly discovered evidence was essential to a proper decision
in the prior action and that he was in no way responsible for the
lack of such evidence in the prior action. Fred Olson Motor
Service v. Container Corp. of America, 81 Ill.App.3d 825, 37
Ill.Dec. 5, 9, 401 N.E.2d 1098, 1102 (1st Dist. 1980). At all
times prior to the ruling on the summary judgment motion,
Columbus had the opportunity to depose or propound
interrogatories to the plaintiff Hurst. Its failure to conduct
that discovery and to oppose Reliable's summary judgment motion
is not a basis for allowing Columbus to re-litigate the very
issue decided in the summary judgment. Collateral estoppel is a
device to prevent such re-litigation. LaSalle Nat'l Bank v.
Fitzgerald, 15 Ill.App.3d 1016, 305 N.E.2d 355 (1st Dist. 1973).
For these reasons, the motion of third-party defendant Reliable
to dismiss is granted.
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