Lead Opinion
delivered the opinion of the court:
On March 11, 1992, plaintiff, Harold Leow, suffered injuries in a loading dock accident. At the time of the accident, plaintiff was using a forklift to load skids containing manufactured products onto a semi-trailer truck
On March 8, 1994, Leow filed a single-count complaint naming A&B Freight Line, Inc., as the sole defendant. The count alleged that Keith Pasch committed various negligent acts which resulted in injury to plaintiff. The complaint further alleged that A&B Freight Line, through its employee, Pasch, was liable under the doctrine of respondeat superior for injuries suffered by Leow. On September 14, 1994, Leow filed an amended complaint adding a second count against Pasch. Count I of the amended complaint named A&B Freight Line and remained identical to the original complaint. Count II, against Pasch, alleged that his negligent operation of the semi-trailer truck resulted in permanent injuries to Leow.
Subsequently, Pasch filed a motion to dismiss count II, pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(5) (West 1994)), claiming that the two-year statute of limitations had run as to him. The trial court granted Pasch’s motion to dismiss finding that Pasch was not properly named as a defendant until the amended complaint was filed on September 14, 1994, more than two years after the accident' took place. The ruling was made appealable pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) on September 28, 1994. Leow did not appeal this ruling.
On November 1, 1994, A&B Freight Line filed a motion to dismiss count I of plaintiff's complaint on the grounds that a dismissal with prejudice of an action against A&B Freight’s employee, Pasch, barred any action against A&B Freight based on the doctrines of respondeat superior and res judicata. The trial court granted A&B Freight’s motion to dismiss count I on January 31, 1995. The basis for this ruling was that the involuntary dismissal of count II, against Pasch, acted as a prior adjudication on the merits and therefore the doctrine of res judicata barred Leow’s claim against A&B Freight.
Leow asked the trial court to reconsider its order of January 31, 1995, dismissing count I of his complaint. In his motion for reconsideration and other relief, Leow requested that the trial court amend its first order of September 28, 1994, dismissing count II by inserting language that the dismissal of Pasch was not an adjudication on the merits of the action against A&B Freight. The trial court denied Leow’s motion to reconsider.
The appellate court affirmed, with one justice specially concurring.
At issue in this appeal is whether Pasch’s involuntary dismissal, on statute of limitations grounds, operates as an adjudication on the merits barring Leow’s timely respondeat superior claim against defendant, A&B Freight. We look to whether a prior judgment is an adjudication on the merits to determine whether it should be accorded res judicata effect against another defendant to the action.
The doctrine of res judicata provides that an adjudication on the merits "rendered by a court of competent jurisdiction is conclusive as to the rights of the parties and their privies.” People ex rel. Burris v. Progressive Land Developers, Inc.,
In this case, the only element of res judicata in serious dispute is the first element concerning whether the granting of the involuntary dismissal in favor of Pasch constitutes a final judgment on the merits barring the remaining claim against A&B Freight. The second element of res judicata is clearly present since Leow is suing both A&B Freight and Pasch for the same injuries arising out of the same accident. Furthermore, Leow’s claim against A&B Freight is based on a theory of vicarious liability and under such a theory the employer and employee are considered to be " 'one and the same’ defendant.” Downing v. Chicago Transit Authority,
Therefore, we need to determine whether the involuntary dismissal of Pasch, due to the two-year statute of limitations running, should operate as an adjudication on the merits barring suit against Pasch’s employer. Plaintiff contends that the involuntary dismissal of Pasch could not be considered an adjudication on the merits because the actual merits of Leow’s claim were never examined. Plaintiff notes that the only issue the court resolved when it dismissed Pasch was that he was named a party to the lawsuit after the statute of limitations had run. Plaintiff contends that a prior judgment should not be accorded res judicata effect, against another defendant to the action, unless the judgment reached the actual merits of the suit. In support, Leow cites to Downing v. Chicago Transit Authority,
In Downing, this court held that a summary judgment order, entered in favor of a bus driver on statute of limitations grounds, was not a res judicata bar to a timely respondeat superior suit against the Chicago Transit Authority (CTA), which employed him. In Downing, a CTA bus driven by defendant Williams struck plaintiff, a bicyclist. Plaintiff filed suit against the CTA and its "unknown employee and agent.” As in the case at bar, plaintiff amended his complaint naming both the employee and employer as defendants after the two-year statute of limitations had expired. First, the trial court granted summary judgment in favor of Williams, reasoning that he was not properly named a defendant until more than two years after the accident took place. Subsequently, the trial court granted the CTA’s motion for summary judgment and the appellate court affirmed. The basis for these rulings by the lower courts was that "the summary judgment in favor of Williams was a prior adjudication on the merits, and therefore the doctrine of res judicata barred plaintiffs present claims against the CTA.” Downing,
This court reversed. The court determined, as we have here, that the only element of res judicata in dispute was whether the judgment releasing the employee from liability was considered an adjudication on the merits. Downing,
The Downing decision seems virtually identical to the case at bar. In both cases, the employers were timely named, but claims against the employees were not added until after the statute of limitations had expired. Both employees received either an involuntary dismissal or summary judgment in their favor based on their statute of limitations defenses. Subsequently, the employers remaining in both suits claimed that the release of their employees, on statute of limitations grounds, operated as adjudications on the merits barring the claims against them. At issue in both cases was whether these prior judgments should be given res judicata effect with respect to the remaining defendants.
As stated, the Downing court concluded that the basis for granting summary judgment bore no relationship to the actual merits of the case. Therefore, the court refused to label a summary judgment order on statute of limitations grounds an adjudication on the merits. In the present case, if we apply the reasoning from Downing and look to the basis on which the involuntary dismissal was granted, we must also conclude that the actual merits of the action were never examined. In both cases, the only issue the lower courts decided was whether the employees were timely named as defendants. As in Downing, the basis for granting the employee’s motion bears no relationship to the actual merits of Leow’s case. Under this reasoning, it would be improper to apply the doctrine of res judicata to another party to the action.
The only distinction which can be drawn between the two cases is the type of procedural device used by the defendant employees to assert their statute of limitations defenses. As stated in Downing, the driver filed a motion for summary judgment, while in the case at bar, Pasch filed a section 2 — 619 motion to dismiss. Defendant A&B Freight contends that the difference between the procedural choice of a motion for summary judgment over a motion to dismiss is critical. Defendant asserts that such a distinction is critical because pursuant to Illinois Supreme Court Rule 273 (134 Ill. 2d R. 273) an involuntary dismissal of an action is deemed an adjudication on the merits for purposes of invoking the doctrine of res judicata. Rule 273 states that "[ujnless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” 134 Ill. 2d R 273. Defendant asserts that since the involuntary dismissal of Pasch did not fall under one of these exceptions outlined in Rule 273, and the order of dismissal did not specify otherwise, the judgment in favor of Pasch operated as an adjudication on the merits.
Defendant argues that Downing supports this interpretation of Rule 273. The Downing court did recognize a distinction between an involuntary dismissal and an order granting summary judgment, stating that Rule 273 only applies to involuntary dismissals such as when a motion to dismiss under section 2 — 615 or 2 — 619 is granted. Downing,
Following Downing, this court applied Rule 273 in Rein v. David A. Noyes & Co.,
This distinction is critical. Where a different defendant is involved, as in the present case, Rule 273 cannot be applied mechanically, because doing so would yield absurd and
To avoid such anomalies, we must look to the purpose and intent of Rule 273 in determining whether a dismissal against one defendant based on statute of limitations grounds should be deemed to be an adjudication on the merits as to a different defendant. Rule 273 was adopted in 1975 and was modeled after Federal Rule of Civil Procedure 41(b). 58 Ill. 2d R. 273, Committee Comments. Therefore, we will examine Rule 41(b) and its history to guide our interpretation of Rule 273. At common law, a dismissal on grounds other than the actual merits of the case would not constitute res judicata in a later case. Madden v. Perry,
Applying these principles, the Supreme Court, in Costello, held that the dismissal of a previous complaint in a denaturalization proceeding, for failure to file an affidavit of good cause, was not an adjudication on the merits under Rule 41(b). The Court reasoned that when determining whether dismissals, not otherwise provided for under the rule, operate as adjudications on the merits, "it seems reasonable to confine them to those situations where the policy behind the enumerated grounds is equally applicable.” Costello,
Accordingly, where separate defendants are involved, we hold that as with Rule 41(b), only those types of involuntary dismissals that serve the policy behind Supreme Court Rule 273 should be treated as adjudications on the merits. Since Rule 273 was modeled after Federal Rule 41(b), the policy behind the rules is the same. As with Rule 41(b) dismissals, the res judicata effect of Rule 273 dismissals was also intended to apply to situations where defendants are put to the inconvenience of preparing to meet the merits of the case. Rule 273 was designed to protect a defendant from relitigating the same matter over again after the defendant or his privy was dismissed in a prior proceeding.
That policy is not served by dismissing A&B Freight from this case. From our previous analysis, it is apparent that A&B Freight never had to incur the inconvenience of preparing a defense and meeting the merits of this controversy. In this case, Pasch, A&B Freight’s agent, was dismissed from this action for the sole reason that he was not properly named a defendant until after the statute of limitations had expired. Such an order of dismissal only decides the merits of Pasch’s section 2 — 619 motion and was not a determination of the merits of the underlying claim. Since the merits were never examined, A&B Freight was never put to the inconvenience of preparing a defense. A&B Freight merely asserted that Pasch’s involuntary
We further find that the fact that the employee in this case utilized a section 2 — 619 motion to dismiss, rather than a motion for summary judgment, does not warrant a different result from that reached in Downing. The policy behind Rule 273 and its federal counterpart supports a decision consistent with the reasoning in Downing. To adhere to the policy behind Rule 273, an involuntary dismissal as to the employee, like a summary judgment, should not be automatically labeled a judgment on the merits with respect to the employer. But rather, as directed in Downing, the basis on which the judgment was granted should be examined to determine whether the merits of the case were ever considered.
Moreover, on a section 2 — 619 motion to dismiss, a trial court has even less of an opportunity to examine the real merits of a plaintiffs case than on a motion for summary judgment. On motions for summary judgment, trial courts normally examine pleadings, depositions, admissions on file, and affidavits to determine whether
there is any general issue of material fact to be tried by a jury. Gilbert v. Sycamore Municipal Hospital,
In this case, as in Downing, Pasch was dismissed from the suit for reasons bearing no relationship to the actual merits. We conclude that the involuntary dismissal of Pasch was not an adjudication on the merits as to A&B Freight. The first element of res judicata was not present in this case; therefore, it was error to grant A&B Freight’s motion to dismiss. As in Downing, in the present case, plaintiff’s action against the principal was not barred by the doctrine of res judicata. Accordingly, we reverse the judgments of the circuit and appellate courts and remand to the circuit court for further proceedings.
Appellate court reversed; circuit court reversed; cause remanded.
Concurrence Opinion
specially concurring:
I agree that plaintiff’s complaint against A&B Freight should not be dismissed under the doctrine of res judicata, but not for the reasons offered by the majority. In my view, the majority’s analysis is flawed and likely to cause unnecessary confusion in future cases. I reach this conclusion for several reasons, and write separately to address each in turn.
I
A. Flawed Analysis
The dispositive issue in this appeal is whether an employer may assert the involuntary dismissal of its employee, obtained on statute of limitations grounds, as a basis for its own dismissal by virtue of the doctrine of
In this case, the majority begins its analysis by noting that "the only element of res judicata in serious dispute is the first element concerning whether the granting of the involuntary dismissal in favor of [the employee] constitutes a final judgment on the merits barring the remaining claim against A&B Freight.”
"The second element of res judicata is clearly present since [plaintiff] is suing both A&B Freight and [its employee] for the same injuries arising out of the same accident. Furthermore, [plaintiff’s] claim against A&B Freight is based on a theory of vicarious liability and under such a theory the employer and employee are considered to be ' "one and the same” defendant.’ ”175 Ill. 2d at 180 , quoting Downing v. Chicago Transit Authority,162 Ill. 2d 70 , 74 (1994).
Despite this early conclusion that the same claim and same party requirements have been satisfied, the majority later insists that "the matter before us involves a separate claim against a different defendant.” (Emphasis added.)
I do not believe that Rule 273 should be interpreted differently merely because a different defendant is involved. On the contrary, whether a judgment is or is not an adjudication on the merits under Rule 273 does not depend upon whether there is an identity of parties, as in the case of res judicata. Rather, it depends solely on whether the dismissal at issue falls within one of the three exceptions specified in the rule. See Towns v. Yellow Cab Co.,
In Rein, we held that a dismissal of an action based on the running of a statute of limitations constituted an adjudication on the merits by virtue of Rule 273. Rein,
"Supreme Court Rule 273 provides that, '[u]nless the order of dismissal or a statute of this State otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.’ 134 Ill. 2d R. 273. As this court has previously stated, Rule 273 applies only to an involuntary dismissal of an action, such as that which occurs when a motion to dismiss under section 2 — 615 or 2 — 619 of the Code is granted. Downing,162 Ill. 2d at 74-75 . Therefore, under Rule 273, the trial judge’s decision to grant defendant’s motion to dismiss the rescission counts in Rein I based on the applicable statute of limitations is a final adjudication on the merits and operates as a final judgment on the merits for purposes of res judicata. See Downing,162 Ill. 2d at 74-75 .” Rein,172 Ill. 2d at 335-36 .
Our holding in Rein is wholly consistent with the plain language of Rule 273. That rule specifies that only involuntary dismissals based on (i) lack of jurisdiction, (ii) improper venue, or (iii) failure to join a necessary party shall not operate as adjudications on the merits, unless the order of dismissal or a statute states otherwise. 134 Ill. 2d R. 273. The rule does not exempt involuntary dismissals based on the running of the statute of limitations. Such dismissals, therefore, are adjudications on the merits. Towns v. Yellow Cab Co.,
Notwithstanding the above, the majority asserts that "[u]nlike [Rein], the matter before us involves a separate claim against a different defendant.”
Although I agree with the majority that the existence of a separate claim and a different defendant distinguishes the instant case from Rein, I do not think that this distinction is relevant in terms of how we should construe Rule 273. In my view, this distinction simply has nothing to do with that rule or its application. Rather, the existence of a separate claim and a different defendant is relevant in determining whether the final two elements of res judicata have been satisfied. After all, it is the doctrine of res judicata, and not Rule 273, which speaks in terms of separate claims and different defendants. Indeed, as noted above, three requirements must be satisfied before courts will apply the doctrine of res judicata: there must be a final judgment on the merits, an identity of causes of actions, and an identity of parties
Accordingly, to the extent that my colleagues view Rein as factually distinguishable from the instant case, I agree. I do not, however, believe that Rein is distinguishable in terms of construing Rule 273, as the majority erroneously posits. Unlike the majority, I think that Rein is distinguishable only in the context of the doctrine of res judicata. In Rein, we barred any further litigation between the parties because all three elements of res judicata were satisfied. In this case, not all of the elements of res judicata are present. As the majority repeatedly points out, the case at bar involves a separate claim and a different defendant; therefore, the doctrine of res judicata does not apply.
B. Inapposite Federal Precedent
Because of its insistence on deciding this case in terms of Rule 273 rather than on the basis of the final two elements of res judicata, the majority is forced to continue its analysis by relying on inapposite case law in an attempt to circumvent the plain language of Rule 273. Noting that our own rule shares a common heritage with Federal Rule of Civil Procedure 41(b), the majority cites to the United State’s Supreme Court’s decision in Costello v. United States,
I do not find Costello persuasive in resolving the precise issue presented in the case at bar. Indeed, the opinion in Costello contains not one reference to statutes of limitations, dismissals obtained through them, or their effect under Rule 41(b). Yet Costello is the sole federal case cited by the majority, and it is the majority which believes that federal case law, rather than state law precedent, is controlling. Even if federal precedent were controlling, my research reveals that the federal judiciary has uniformly held that an involuntary dismissal obtained on statute of limitations grounds constitutes an adjudication on the merits under Rule 41(b). See Murphy v. Klein Tools, Inc.,
In sum, I do not agree with the majority that the proper resolution of the res judicata issue presented in this case turns upon the meaning of Rule 273. In my view, it is not the first element of res judicata (adjudications on the merits) which is at issue here, but rather the final two elements (identity of claims and parties). But even if I did agree with the majority in this respect, I would not be swayed by their citation to federal case law. For these reasons, I do not place any credence on the majority’s reliance on Costello.
II
At the outset, I pointed out the internal inconsistency in the majority’s analysis of the issue presented for our review. On the one hand, the majority holds that the final two elements of res judicata have been satisfied because (i) plaintiff is suing for the same injuries arising out of the same accident, and (ii) A&B Freight and its employee are considered to be " 'one and the same’ defendant.”
The record in the instant case reveals that plaintiff filed a timely complaint against A&B Freight on March 8, 1994. The complaint alleged that plaintiff suffered injuries as a result of certain negligent acts committed by one of A&B Freight’s employees. Plaintiff later filed an amended complaint in which he attempted to add the employee as a party defendant. Because this second complaint was not filed within the applicable limitations period, the employee moved to dismiss the complaint pursuant to section 2 — 619(a)(5) of the Code of Civil Procedure. The circuit court granted the motion to dismiss. Shortly thereafter, A&B Freight also moved to dismiss plaintiff's complaint. A&B Freight argued that it could no longer be liable under the theory of respondeat superior since its employee had been dismissed from the case. In support of this argument, A&B Freight relied upon what is now referred to as the Towns doctrine, named after the case in which it finds its most prominent expression. Towns v. Yellow Cab Co.,
"When an action is brought against a master based on the alleged negligent acts of his servant, and no independent wrong is charged on behalf of the master, his liability is entirely derivative, being founded upon the doctrine of respondeat superior. In this regard, it has been said that the liability of the master and servant for the acts of the servant is deemed that of one tortfeasor and is a consolidated or unified one. *** A judgment, therefore, adjudicating the master not liable, where a judgment to the contrary could have only resulted from a finding that the servant committed an actionable wrong against the plaintiff, is a judgment in legal effect that the servant is not liable.” Towns,73 Ill. 2d at 123-24 .
Relying on this doctrine, the circuit court granted A&B Freight’s motion to dismiss, ruling that the order dismissing the employee barred any further action against A&B Freight under the principles of res judicata. The appellate court affirmed, finding that all of the elements of res judicata had been met.
In my view, however, the Towns doctrine does not apply to the facts of this case. In Towns, this court recognized the general principle that a prior judgment for an employee will ordinarily terminate the employer’s liability due to the fact that the latter’s liability is entirely derivative. Towns,
In Kocsis, plaintiffs brought a medical malpractice action against a doctor and his employer, the Omaha Primary Care Associate, P.C. (hereinafter the Clinic). The trial court granted summary judgment in favor of the doctor, ruling that plaintiffs’ complaint was barred by the applicable statute of limitations. Subsequently, the trial court granted the Clinic’s motion for summary judgment, concluding that under the doctrine of respondeat superior, the Clinic could no longer be liable because the plaintiffs’ complaint against the doctor was time-barred. In reversing the trial court, the Supreme Court of Nebraska acknowledged that "[i]f an employee is not liable, the employer cannot be liable under the doctrine of respondeat superior.” Kocsis,
"We hold that when a plaintiff initiates an action under the theory of respondeat superior against an employer before the statute of limitations has run as to the employee, the plaintiff need not sue both the employer and employee to prevent his action from being time barred. The controlling statute of limitations applicable to the employer is that which would apply to the employee. Therefore, if the action is brought within the limitations period that applies to the employee’s tortious conduct, the action is not time barred as to the employer whose liability is solely vicarious.” Kocsis,249 Neb. at 280 ,543 N.W.2d at 169 .
I find the reasoning in Kocsis persuasive. Therefore, I would also hold that when a plaintiff files a timely suit against an employer and later seeks to join its employee as a party defendant, the plaintiff’s timely complaint against the employer should not be dismissed simply because the employee successfully raises the statute of limitations in his or her own defense. I would further hold that the Towns doctrine does not apply in that situation, and that the second and third elements of res judicata (identity of claims and parties) have not been satisfied. In this way, this court would not have to engage in a disingenuous interpretation of Rule 273 in a contrived attempt to characterize that which is an adjudication on the merits as not an adjudication on the merits.
For the foregoing reasons, I concur only in the judgment of the court.
JUSTICES MILLER and FREEMAN join in this special concurrence.
Notes
To support its contention that the employer and employee are one and the same "defendant,” the majority cites Downing v. Chicago Transit Authority,
It is important to keep in mind that the court in Towns did not have occasion to pass upon the effect of a judgment obtained pursuant to a personal defense such as a statute of limitations. Accordingly, I do not suggest that Towns be overruled, but merely clarified with respect to such judgments.
As the majority points out, had the plaintiff in this case elected not to join the employee in his pending suit against A&B Freight, as is his prerogative under Illinois law (see McCottrell v. City of Chicago,