Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. Nos. S81-0260, S81-0276, Allen Sharp, Judge.
Before CUDAHY and EASTERBROOK, Circuit Judges, and SWYGERT, Senior Circuit Judge
SWYGERT, Senior Circuit Judge
This diversity action arises out of an automobile accident that occurred on June 26, 1980, at the intersection of U.S. Highway 30 and Indiana State Road 19 in Kosciusko County, Indiana. Plaintiffs Coetta Morris ("Coetta"), George Alsup ("George"), and his wife Katheryn Alsup ("Katheryn") appeal from a jury verdict in the United States District Court for the Northern District of Indiana denying their claims for damages allegedly resulting from the automobile accident. We affirm.
The facts of this case as developed at trial are as follows. George, Coetta, and Katheryn left Fort Wayne, Indiana for Chicago, Illinois sometime between 12:00 noon and 2:30 p.m. on June 26, 1980. George was driving his Datsun 280Z 2 on U.S. 30 and Coetta and Katheryn were passengers. Before getting into George's car, the three plaintiffs each consumed at least one bottle of "Champale." Katheryn sat in the front passenger seat; Coetta, along with two other passengers, laid down behind the driver's seat. During the trip neither Coetta nor Katheryn wore seat belts nor objected to George's operation of the car.
Between Fort Wayne and Chicago, U.S. 30 and State Road 19 intersect. Approximately one-quarter mile before the intersection is a hill that prevents any driver travelling west on U.S. 30 (toward Chicago) from seeing the intersection until the driver reaches the top of the hill. George testified that when he reached the top of the hill, at approximately 3:00 p.m. on June 26, he saw defendant Thomas N. Spratt's van stopped in the intersection on State Road 19. Spratt proceeded across the eastbound lanes to the median where he either slowed down or stopped. Spratt and his wife Florence Spratt, a passenger in the van, testified that they looked or "kind of looked" for approaching westbound traffic but that they say no traffic within the visible one-quarter mile.
George testified that when he saw Spratt's van, he decelerated to approximately forty to fifty miles per hour and moved into the right lane to allow Spratt more room to enter, although two eye-witnesses testified that just before the accident they saw George traveling between 85 and 90 mph. According to George, just before he entered the intersection, Spratt's van "surged" forward into the right westbound land, hitting, and then climbing on top of his car. George did not blow his horn or brake before the accident; he claimed he did brake during the accident although there were no brake skid marks at the scene. George's car continued to travel approximately 84 feet after colliding with Spratt's van, and the van flipped over on its top. Marijuana, beer, and wine were found in George's car after the accident. On August 11, 1981, the plaintiffs instituted the instant action against Thomas N. Spratt. Both Katheryn and Coetta claimed damages for personal injuries. In addition, George and Katheryn claimed damages for the loss of each other's consortium.
The only significant issue raised on appeal is whether the district judge erred in denying Coetta's and Katheryn's summary judgment motions. Relying on a prior state court judgment, Spratt v. Alsup, No. CTC 81-60 (Marshall Cir. Ct. Nov. 16, 1982) see Spratt v. Alsup, 468 N.E.2d 1059 (Ind. App. Ct. 1984), Coetta and Katheryn filed motions for partial summary judgment seeking to preclude Spratt from litigating the issue of his liability for their injuries. In the state court action, the Spratts sued George for personal injury arising from the collision on June 26, 1980. George counterclaimed against the Spratts for the injuries that he sustained as a result of the accident, and he was awarded $10,000 in damages. The Indiana Court of Appeals affirmed the verdict on the ground that the evidence was sufficient to show that Florence Spratt was negligent in failing to see George's car and to warn her husband about the approaching vehicle. Spratt, 468 N.E.2d at 1064.*fn1
The plaintiffs in the instant action claimed that the state court judgment conclusively established the Spratts' negligence during the accident and hence established Spratt's liability for their injuries. The district judge held, however, that Coetta and Katheryn were not entitled to summary judgment on any of their claims, Alsup v. Spratt, 577 F. Supp. 557, 562 (N.D. Ind. 1983). He did grant George's partial summary judgment motion on his claim for loss of Katheryn's consortium.
Coetta and Katheryn do not dispute that in diversity cases state law determines the preclusive effect to be given to prior state court judgments, see McCarthy v. Amoco Pipeline Co., 595 F.2d 389, 396 (7th Cir. 1979); Nathan v. Tenna Corp., 560 F.2d 761, 763 (7th Cir. 1977); Wetherill v. University of Chicago, 548 F. Supp. 66, 68 n.5 (N.D. Ill. 1982); see also Marrese v. American Acad. of Orthopaedic Surgeons, 470 U.S. 373, 105 S. Ct. 1327, 1331, 84 L. Ed. 2d 274 (1985), or that the district judge correctly determined that Indiana law does not permit the offensive use of collateral estoppel see Tobin v. McClellan, 225 Ind. 335, 344, 73 N.E.2d 679, 683 (1947); Dayton v. Fisher, 34 Ind. 356, 358 (1870); Burtrum v. Wheeler, 440 N.E.2d 1147, 1153 (Ind. Ct. App. 1982); State, Indiana State Highway Comm'n v. Speidel, 181 Ind. App. 448, 453, 392 N.E.2d 1172, 1175 (1979). Rather, they make three arguments in an attempt to circumvent Indiana's rule of collateral estoppel. The first argue that an exception to Indiana's rule permits them to offensively use the state court judgment. See Mayhew and Huston v. Deister, 144 Ind. App. 111, 244 N.E.2d 448 (1969). In Mayhew, the court held that the requirements for use of collateral estoppel in Indiana need not be met when the liability of the defendant asserting collateral estoppel is dependent on or derived from the liability of one who was exonerated in an earlier suit brought by the same plaintiff on the same facts. Id. at 122, 244 N.E.2d at 454. Clearly, Coetta and Katheryn do not fall under this exception.
Second, they assert that George's federal summary judgment, Alsup v. Spratt, 577 F. Supp. 557, rather than the state court judgment, is the basis for their summary judgment motions. Relying on Crowder v. Lash, 687 F.2d 996, 1011 (7th Cir. 1982), they argue that they can offensively use this judgment against Spratt because federal law determines the preclusive effect to be given to George's federal summary judgment.
Plaintiffs are correct that in Crowder this court applied federal law to determine whether the offensive use of collateral estoppel would be permitted. But that case involved the offensive use of a prior federal judgment of a federal district court (see Aikens v. Lash, 371 F. Supp. 482 (N.D. Ind.), aff'd, 514 F.2d 55 (7th Cir. 1975), vacated on other grounds, 425 U.S. 947, 96 S. Ct. 1721, 48 L. Ed. 2d 191 (1976)), rendered in an entirely separate litigation. In the instant action, the alleged federal "judgment" was entered in the same action in which plaintiffs seek to sue that "judgment," and hence the rational of Crowder does not apply.
At the time of the district judge denied Coetta's and Katheryn's motions for summary judgment, no final judgment had yet been entered on George's claim. Hence, at least at the time the district judge originally decided Coetta's and Katheryn's motions, Crowder was simply inapplicable. Because final judgment was not entered on George's claim until after trial took place, plaintiffs' argument that the district judge erred (under Crowder) in not granting them summary judgment on their claims before trial is simply ...