The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County.
Honorable John Laurie, Judge Presiding.
Plaintiff Zurich Insurance Company ("plaintiff" or "Zurich") appeals from the judgment of the circuit court of Cook County dismissing its lawsuit as subrogee of Jerome Patrick ("the insured" or "Patrick") against Amcast Industrial Corporation ("defendant" or "Amcast"). On appeal, Zurich argues that the trial court erred in finding that its suit to recover for property damage is barred as res judicata due to an earlier suit by Patrick against Amcast for personal injury arising out of the same accident. We reverse.
The initial facts of this case from Zurich's complaint follow. Zurich is an insurance carrier which insured a truck owned by Patrick. On or about February 22, 1995, Patrick was driving his truck from Amcast's place of business in Wisconsin to Cicero, Illinois, hauling cargo which consisted of "baskets of aluminum casting." The cargo in the truck allegedly shifted during the trip due to Amcast's negligence in not securing it properly. As a result, Patrick lost control of his truck which crashed and rolled over on its side. Zurich subsequently paid Patrick the sum of $21,653.75, for the damage to his truck, pursuant to its obligations under the insurance policy. Zurich then became subrogated to Patrick's right to recover against Amcast for the damage to Patrick's truck.
The procedural facts of this case are not in dispute. On January 6, 1999, Zurich filed a complaint against Amcast alleging that Amcast's negligence in failing to properly secure the cargo in Patrick's truck caused the weight of the cargo to shift during the trip and the truck to crash. Amcast filed a motion to dismiss pursuant to section 2-619(4) of the Code of Civil Procedure (735 ILCS 5/2-619(4)(West 1999)), on May 14, 1999, arguing that the lawsuit was barred by res judicata due to an earlier lawsuit filed against Amcast by Patrick. This earlier lawsuit (the "DuPage litigation") was filed in the circuit court of DuPage County on June 16, 1995, and was styled Jerome S. Patrick v. Amcast Industrial Corporation, 96 AR 1718. In its response to the motion to dismiss, Zurich offered an affidavit of the attorney who represented Patrick in the DuPage lawsuit against Amcast. The affidavit averred that even though property damage is mentioned in the DuPage complaint, damages were only recovered for Patrick's personal injuries and the damage to Patrick's eyeglasses. The affidavit disavowed any recovery for or litigation of the damage to Patrick's vehicle. The DuPage litigation was resolved through arbitration and Patrick was awarded $11,090.
In the instant case, the trial court granted Amcast's motion to dismiss on June 8, 1999. Zurich then made a motion to reconsider on July 7, 1999. In its response to this motion, Amcast included the complaint from the DuPage litigation and noted that the complaint in the DuPage lawsuit states that, "as a direct and proximate result of one or more of the forgoing negligent acts or omissions, plaintiff's semi- tractor was damaged so that it was costly to repair." Zurich's motion to reconsider was denied on September 2, 1999. This appeal followed.
"A section 2-619 motion to dismiss affords a defendant a means of obtaining a summary disposition when the plaintiff's claim can be defeated as a matter of law or on the basis of easily proved issues of fact." McGee v. State Farm Fire & Casualty Company, 315 Ill. App. 3d 673, 680, 734 N.E.2d 144, 150 (2000). "A section 2- 619 motion to dismiss admits all well-pleaded facts in the complaint" and "[a]ll documents submitted in support of the motion must be considered in a light most favorable to the nonmoving party." Ericksen v. Rush Presbyterian St. Luke's Medical Center, 289 Ill. App. 3d 159, 165, 682 N.E.2d 79, 83 (1997). "If a cause of action is dismissed pursuant to a section 2-619 motion, the questions on appeal are (1) whether a genuine issue of material fact exists and (2) whether the defendant is entitled to a judgment as a matter of law." McGee, 315 Ill. App. 3d at 680, 734 N.E.2d at 150. "A reviewing court exercises de novo review of orders granting motions to dismiss." Ericksen, 289 Ill. App. 3d at 165, 682 N.E.2d at 83.
Plaintiff argues that the trial court incorrectly applied the doctrine of res judicata in barring its claim. In support, plaintiff contends that res judicata should not apply here because the DuPage lawsuit involved a different cause of action than the instant suit which the trial court found to be barred by res judicata. We find that the instant litigation is not barred. Res judicata will not apply where the prior litigation involved a different cause of action than the litigation which the party invoking res judicata intends to terminate. Joseph T. Ryerson & Son v. Manulife Real Estate Company, 238 Ill. App. 3d 550, 553, 606 N.E.2d 463, 465 (1992) ("To establish res judicata a party must show *** (3) that the former adjudication involved the same cause of action and the same subject matter as the current case").
In Illinois the test for what constitutes a cause of action under the doctrine of res judicata has undergone a major shift over time. Although not cited by either of the parties, until very recently, our supreme court's decision in Clancey v. McBride, 338 Ill. 35, 169 N.E. 729 (1929), controlled the question as to whether a claim for personal injury would bar a subsequent action for property damage which arose out of the same incident or vice-versa. The test applied in Clancey is consistent with the traditional "same evidence" test as originally advocated in the first Restatement of Judgments. Restatement of Judgments §61 (1942) (where a judgment is rendered "the plaintiff is precluded from subsequently maintaining a second action based on the same transaction, if the evidence needed to sustain the second action would have sustained the first action" (Emphasis added.)).
In Clancey the plaintiff sued the defendant for damage her automobile sustained in an accident due to the defendant's negligence. She recovered $275 and subsequently initiated a second lawsuit against the same defendant for personal injuries which she sustained in the same accident. The defendant argued that her second suit was barred by res judicata. Our supreme court held that:
"A single negligent act from which personal injury and property damage ensue simultaneously does not necessarily make its consequences inseparable or result in a single grievance. *** If *** as the result of such an act, the owner is injured and his vehicle is damaged, two separate and distinct wrongs are inflicted upon him for two of his rights, first, the right to the uninterrupted enjoyment of his body and limbs, and second, the right to have his property kept free from damage, are invaded. While both wrongs result from a single tortious act, yet the consequences of that act, it seems, give rise to a distinct cause of action for the vindication of each of the violated rights." Clancey, 338 Ill. at 38-39, 169 N.E. at 730.
The Clancey court reasoned that:
"The gist of the action is the harm to person or property negligently perpetrated. To support such an action there must be not only the negligent act, but also a consequential injury or damage which is the gravamen of the charge. It follows that the mere negligent driving of his automobile by the defendant in error, not followed by injury to the person of the plaintiff in error or damage to her automobile, would not have subjected the former to an action for damages by the latter." Clancey, 338 Ill. at 38, 169 N.E. at 730.
The res judicata analysis in Clancey with respect to the interrelationship between property damage and personal injury recovery was followed and applied by our court in the 1975 case of Stephan v. Yellow Cab Company, 30 Ill. App. 3d 996, 998, 333 N.E.2d 223, 224 (1975). There the insurer-subrogee's property damage claim against defendant Yellow Cab was dismissed because of the prior dismissal on the merits of a personal injury claim by the insured-subrogor against Yellow Cab which arose out of the same incident. Stephan, 30 Ill. App. 3d at 997, 333 N.E.2d at 224. Citing Clancey as controlling, the court held that the insurer-subrogee's property damage claim was a distinct cause of action ...