Chrysler Leasing Corporation and Agency Rent-A-Car, Inc., third-party plaintiffs, appeal as of right from the order of accelerated judgment in favor of Steven Monnier and P. F. Collier Company, the third-party defendants, on the basis of res judicata, GCR 1963, 116.1(5). They also appeal the order of summary judgment in favor of defendant Collier, granted pursuant to *139 GCR 1963, 117.2(1), for failure to state a claim upon which relief can be granted. We reverse.
Plaintiff, William Beck, riding as a passenger, was injured when a car owned by Chrysler, leased to Agency, and driven by defendant Westphal, left the road and turned end-over-end on M-21 near St. Johns, Michigan. Beck, Westphal and Monnier were employees of Collier Encyclopedia Company. Monnier rented the vehicle from Agency in order for defendant Westphal and plaintiff Beck to sell Collier Encyclopedias in Michigan. The vehicle was entrusted to Westphal by Monnier.
On February 9, 1979, Agency filed a property damage complaint against Monnier in the Milwaukee County Circuit Court, through which Agency sought to recoup the amount of property damages sustained to the rented automobile. The basis for the suit was the provision in the rental agreement that Monnier would not permit persons not covered by his insurance policy to drive the vehicle and would not permit the vehicle to leave Wisconsin. Monnier did not respond to the action and, accordingly, on June 11, 1979, a default judgment was entered against him for the economic damage to the rental car, $4,696, with costs and disbursements.
On June 1, 1979, ten days before Agency caused the default judgment to be entered on the property damage case in Milwaukee, plaintiff Beck filed his personal injury action in the Clinton County Circuit Court.
On September 5, 1980, appellants filed their third-party complaint against appellees. In that third-party complaint, they sought indemnity and contribution for all damages for which they could be held liable in the event plaintiff Beck was successful in his action. Summary judgment was granted in favor of Collier as to the contribution *140 claim by Chrysler and Agency on the ground that the Worker’s Disability Compensation Act provided the exclusive remedy. This is not appealed. Furthermore, accelerated judgment was granted to both Collier and Monnier for the reason that the present suit is barred under the doctrine of res judicata by virtue of the default judgment entered for the recovery of the value of the rental automobile. Finally, summary judgment was granted in favor of Collier for failure to state a claim of common-law indemnity upon which relief could be granted.
Appellants initially argue that, because the accident in the instant case occurred in Michigan, the law of Michigan is to be applied in determining whether the present action was merged into the recovery for the value of the automobile in Milwaukee County. Moreover, they argue that the instant indemnity action is based on the equitable principal of restitution, where the wrongful act of one results in liability being imposed upon another, so that it is distinct from a contract action and did not merge in the previous property damage judgment.
A judgment which merges a cause of action in the state where it was rendered has a like effect in another state. Such recognition is required by the Full Faith and Credit Clause of the United States Constitution, which requires that a foreign judgment be given "the same effect that it has in the State of its rendition”.
Johnson v
Haley,
Thus, we must examine the law of res judicata as applied in Wisconsin. In determining whether there is an identity of causes of actions or claims, Wisconsin has adopted the "transactional view” of a claim or a cause of action.
Landess v Schmidt,
*141
"(1) When a valid and final judgment rendered in an action extinguishes the plaintiffs claim pursuant to the rules of merger or bar (see §§ 18, 19), the claim extinguished includes all rights of the plaintiff to remedies against the defendant with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose.
"(2) What factual grouping constitutes a 'transaction’, and what groupings constitute a 'series’, are to be determined pragmatically, giving weight to such considerations as whether the facts are related in time, space, origin, or motivation, whether they form a convenient trial unit, and whether their treatment as a unit conforms to the parties’ expectations or business understanding or usage.” (Emphasis as in Landess.)
The court also quoted a portion of Comment a from that section, which reads as follows:
"The present trend is to see [the concept of] claim in factual terms and to make it coterminous with the transaction regardless of the number of substantive theories, or variant forms of relief flowing from those theories, that may be available to the plaintiff; regardless of the number of primary rights that may have been invaded; and regardless of the variations in the evidence needed to support the theories or rights. The transaction is the basis of the litigative unit or entity which may not be split.” (Emphasis as in Landess.)
In this connection, appellees contend that, because both the judgment for the recovery of the value of the automobile and the instant contractual indemnity claim arose out of the same operative facts, the present claim is merged into the former judgment. The trial court so ruled in grant *142 ing accelerated judgment. Had appellants’ contractual indemnification claim accrued at the time suit was brought and judgment rendered for the destruction of the automobile, appellees’ argument that the present indemnmity suit was merged in the prior judgment would appear correct. However, under the transactional view, among the criteria relevant to a determination of whether the facts are so woven together as to constitute a single claim, are their relatedness in time, space, origin, or motivation, and whether, taken together, they form a convenient unit for trial purposes. Although the proofs in the indemnity action would be substantially similar to those in the action for the value of the vehicle destroyed in the accident, and both the action in Milwaukee County Circuit Court and the instant one were based on the rental agreement, an action for indemnity had not accrued at the time the first action was brought in Milwaukee County Circuit Court.
An action for indemnification does not accrue until liability is legally imposed. See 41 Am Jur 2d, Indemnity, §§ 29, 31, pp 720-722. Because the doctrine of res judicata relates to matters which were litigated or might have been litigated in a former proceeding,
DePratt v West Bend Mutual Ins Co,
Appellees cite
Cohan v Associated Fur Farms, Inc,
261 Wis 584;
In the instant case, the Underlying negligence action was not settled until March, 1982. Accordingly, not only was the amount of probable loss unknown, but appellants had no presently-existing cause of action which could have been litigated along with the suit for the destruction of the automobile. Parties are only required to bring actions for which their rights have accrued. Under the circumstances presented in this case, the lower court erred in granting accelerated judgment on the basis of res judicata.
As to the order of summary judgment, appellants analyze the instant case pursuant to GCR 117.2(3). It appears, however, that the motion was brought pursuant to GCR 1963, 117.2(1). Accordingly, we accept as true the well-pled facts in plaintiffs’ (appellants’) complaint in order to test the legal sufficiency of the pleadings.
Borman’s, Inc v Lake State Development Co,
Appellants argue that plaintiff Beck’s underlying complaint alleged a cause of action under the *144 owner’s liability statute (an allegation of "passive” negligence) against them and "active” negligence on the part of defendant Collier. Thus, appellants conclude, a proper situation for indemnification has been presented.
A party seeking indemnity must be free from "active” (or causal) negligence.
McLouth Steel Corp v A E Anderson Construction Corp,
Plaintiff Beck’s complaint alleges, as against third-party plaintiffs Agency and Chrysler in ¶ 7, as follows:
"That at the aforementioned time, place, and date, the 1978 Dodge automobile driven by defendant, Dennis R. Westphal, was owned in whole or in part by defendant, Chrysler Leasing Corporation, and defendant, Agency Rent-A-Car Inc., and was driven by defendant, Dennis R. Westphal, with the knowledge and consent of said defendants.”
Collier claims that as a matter of common verbiage that paragraph alleges active negligence. However, we find this allegation to be indistinguishable from a claim under the owner’s liability statute, MCL 257.401; MSA 9.2101, which provides that an "owner shall not be liable * * * unless said motor vehicle is being driven with his or her express or implied consent or knowledge”. Such liability by operation of the automobile owner’s liability statute is a passive or secondary liability for purposes of determining whether a party has a
*145
right to indemnification,
Gulick v Kentucky Fried Chicken Mfg Corp,
Collier asserts on appeal that
Reed v St Clair Rubber Co,
Appellees next argue that a passively negligent party may not sue another passively negligent party for indemnification. This Court held in
Provencal v Parker,
Paragraphs 14 and 15 of plaintiffs’ complaint allege as follows:
"In his capacity as an employee of P. F. Collier Company, Monnier had a duty to third parties including Chrysler Leasing Corporation and Agency Rent-A-Car, Inc., to exercise a standard of care of a reasonable man *146 in same or similar circumstances and refrain from allowing the vehicle to be driven beyond the state of Wisconsin and allowing the vehicle to be driven by an inexperienced unlicensed driver.
"Notwithstanding such duty, defendant Monnier individually and in his capacity as an agent or servant of P. F. Collier Corporation was negligent in allowing the vehicle to leave the state of Wisconsin, and allowing the vehicle to be used, for the business purposes of P. F. Collier and to be used by a driver not licensed or experienced when Monnier and/or Collier had knowledge of the dangerous propensities of the driver in question.” (Emphasis added.)
Appellants argue that the underscored portions set forth a claim of active negligence on the part of third-party defendant Collier. In
Provencal, supra,
the Court stated that a passive tortfeasor is entitled to indemnification where the actor against whom indemnification is sought is "actively negligent in failing to supervise and control his employees”.
Reversed and remanded for proceedings consistent with this opinion.