*1 RICHTER, Individually Anna Marie
As of the Estate Administratrix Sr., deceased, Richter, Appel L.
lant-Plaintiffs,
ASBESTOS INSULATING & al.,
ROOFING, Appellees- et
Defendants.
No. 02A05-0210-CV-481.
Court of of Indiana. Appeals 24, 2003.
June Associates, Orland,
Neal Lewis Lewis & IN, Attorney for Appellant. *2 Fulwider, Anderson, Hill, FACTS Knight S. Matthews,
McDowell, Indianapo- Funk & 1997, Terry filed his On November IN, for United lis, Attorneys Appellee, original complaint in the Allen Circuit damages defen- Corporation. against multiple Court for Steel States dants, including companies, alleging Drewry Simmons Temple, A. David to him he they were liable because IN, Vornehm, Thom- Indianapolis, Pitts & asbestos that had exposed had been M. Hayes, Law Office of William as W. by them. been manufactured or distributed IL, Grove, Koziol, Attorney Ap- for Long exposed to as- Terry that he was claimed Crane, Inc. John pellee, all of where he worked bestos at the sites through complaint from 1989. The Dillman, Mehringer, E. Lisa M. Susan can- Terry contracted contended IN, Indianapolis, Attor- Wagner, Lewis & and exposure, cer because asbestos Manufac- J.A. neys Appellee, for Sexauer alleged all of should be the defendants turing Co. held liable. with settlements were reached Jr., Although Harney, Halline Edward F. Janet defendants, other respect some Nelson, Green & Hume Smith Geddes settled, including those cases could be IN, Simmons, Attorneys Indianapolis, for However, on October with the Corporation. Pécora Appellee, 28, 1999, in open Richter court consented that “the Court ruling to the trial court’s OPINION is with would then show that dismissal existing presently as to claims BAKER, Judge. Appel- and matter of suit.” Richter, Anna Marie Appellant-plaintiff p. lant’s App. individually, as administratrix and died, and whereupon later Richter Terry L. of her deceased husband estate a new proceeded estate file Richter, (Terry), the trial appeals Sr. Allen Court Superior cause of action of appel- order dismissal in favor court’s companies January against the Corpo- United States Steel lees-defendants Statute, Death Wrongful under our (John Carne, (U.S.Steel), Inc. John ration 34-23-1-1, our and Indiana Code section Carne), Manufacturing Co. J.S. Sexauer Act, sec- Liability Indiana Code Products (J.S. Sexauer) Corporation and Pécora complaint, Richter tion In that 34-20-2-1. (Pécora), (collectively, companies), sought damages loss of consortium for pre- erred in claiming that the trial court numer- damages against well as punitive against venting her death action defendants, compa- the four including ous proceeding. Specifi- companies preju- nies had been dismissed with trial contends that the cally, Richter response previous dice in the action. erroneously the action determined that for a companies moved complaint, by res companies was barred 12(B)(6),where Rule under Trial Conclud- collateral failed they complaint alleged that Richter’s circumstances here satisfied ing that could be which relief to state a claim of the res doc- requirements main- companies granted. Specifically, for trine, was we hold that tained that Richter’s barred because companies and we affirm death should be for the entered upon a consent premised was that suit trial court. personal mary judgment proper compa- action for was dismissal in injury during had been initiated Ter- nies.
ry’s companies The asserted that lifetime. II. Richter’s Claims pursue an under the trial contends because Death Act Products Lia- *3 Wrongful or personal injury court’s dismissal of the bility capacity Act in her as administratrix provided prejudice action it was with of the estate because had brought presently as to existing,” “claims the personal injury judgment his claim to dur- wrongful death action did exist of as ing July his lifetime. On the trial Thus, the prior the date of dismissal. determined the consent dismiss- judicata Richter claims res does not personal al in prior injury justi- action apply here because fied the in instant case and previous claim was not viable when the judgment entered final for the action was dismissed. estoppel It determined that collateral begin by our analysis noting We judicata res barred Richter’s judicata that the doctrine of res bars liti and Richter now appeals. them gating judgment a claim after a final has been in a prior involving rendered action AND DISCUSSION DECISION the same between parties the same Centocor, Inc., or privies. their Small v. I. Standard Review of 22, 731 N.E.2d 26 (Ind.Ct.App.2000), trans. Generally, pur- review of a dismissal denied. The principle behind doctrine 12(B)(6) novo, suant to T.R. is de requiring prevention is the of repetitive litigation of no to deference the trial court’s decision. dispute. the same Id. In accordance with Assocs., Inc., Wilhoite v. Melvin Simon & a we have determined that claim is 382, (Ind.Ct.App.1994). 640 384 N.E.2d A by barred the doctrine of if res 12(B)(6) motion to dismiss T.R. based four following requirements are met: legal claim, sufficiency tests the aof (1) judgment the former must have Beamer, supporting facts it. v. Sims by been a competent rendered court of 1021, 757 (Ind.Ct.App.2001). N.E.2d 1024 jurisdiction; applied The standard to be is that a com- (2) the former must have plaint only is to dismissal when it merits; rendered appears a certainty (3) was, the matter or now issue would not be entitled to under any relief been, have determined ac- Indus., set of facts. Domain Inc. v. Uni- tion; and Inc., 889, versal Supply, Pool (4) controversy adjudicated (Ind.Ct.App.1980). 891 Matters outside the prior action must have been between the considered; pleadings cannot be if matters parties same to the present suit or their outside pleadings are considered the privies. summary motion becomes one for judg- Id. Id.; 12(B). Here, ment. T.R. inasmuch as pleadings matters outside the were pre- party We also observe that either court, sented to the trial procedure may move to dismiss a claim and a dis more as a characterized motion missal with prejudice constitutes dismiss for summary judgment McAbee, T.R. 56 al Ilagan under con- on the merits. v. 634 12(B). Thus, 827, T.R. Thus, verted from id. See the N.E.2d 829 (Ind.Ct.App.1994). grant issue becomes whether of sum- dismissal with is conclusive of consortium, all of parties and is res loss which were based rights might have been any questions upon Terry’s exposure to asbestos and the Id. litigated. cancer. diagnosis essence, attempting is now judica- determining whether prove wrongful death claim alleging apply, helpful inquire ta it is should negligence liability and strict based on the support will identical evidence whether exposures same claimed to the products Bojrab involved in actions. issues both asserted the first were action. N.E.2d Agency, 597 John Carr , Therefore, it can be said that the claims see, (Ind.Ct.App.1992); e.g., Small and the estate are (holding plain N.E.2d at 27 that where woven” first “inextricably with the was for medical first cause tiffs *4 pro- and been in that litigated could have alleged and suit malpractice the second ceeding. from pa and deceit that arose the fraud hospitalization, plaintiffs tient’s the may, Be it on goes that as Richter to “intextricably and have were woven” argue prior the order ap- action). in the first been determined plied only “presently existing” claims. applicability the of considering Appellant’s p. way, Br. 5. Put another ease, in we note that the judicata1 this seemingly Richter urging because initially attempted dismiss Richters living was when the dismissal order Appel prejudice. them claims "without entered, wrongful was the death claim was However, App. p. after hear lant’s 48-49. result, yet in existence. As by the argument parties, the trial court ing argues subsequent that the claims neces- the as to ordered dismissal with sarily survive the earlier order of dismiss- Thus, judg the former the In support argument, al. of its the Estate merits, thereby the ment was rendered on ACandS, Inc., directs to Holmes v. us set in satisfying requirement forth (Ind.Ct.App.1999), trans. N.E.2d 36 de- Small. nied, wrongful that a proposition until the date death action cannot arise of Although Estate asserts case, Br. 7. In that Appellant’s p. death. in wrongful January death claim filed wrongful filed death necessarily from the claims differs negligence based theories and upon of initially in note brought that were we liability. products strict We determined Terry’s alleged exposure to asbestos products liability that a action for containing various manufactured products exposure ac- resulting death from asbestos companies, or distributed evidence of crued the date death. Terry’s development of cancer as statute, examining at 38. In the relevant alleged exposure result of asbestos that “the of the word we noted absence products from the as well as evidence re in 'death’ final clause Ind.Code [the allegedly products garding defective 34-20-3-2(a) signify § does whether ] that contained were issues in both asbestos inju- subsequent or cannot be a in can In the filed the Allen cases. Yet, ry.” at 41. an individual “can court, alleged Id. negli Circuit Richters conduct, only expo- die or be disabled from asbestos gence outrageous and strict liabil sure once.” Id. ity, conspiracy, warranty, breach Thus, application dispute 1. tion. we need not discuss There is no as to whether the Allen Small. jurisdic- competent consideration set forth Court is a first Circuit Here, apparent Terry’s it is original claimed the representative of his Thereafter, father’s estate. Id. at disability exposure from asbestos and the 25. son a second action on his own companies’ alleged misconduct could have behalf that hospital related to his father’s litigated in the earlier court action. ization and death. Id. Under the circum merely asserting Richter is those same stances, it was determined that the son claims in the action that she both controlled and had an interest chooses to label as a death action. Thus, first action. Id. we held that the Permitting re-litigate those trial court properly determined that claims after death would effective- requirement, fourth commonality of par ly grant apple. her a second bite at the ties, was in determining satisfied whether voluntarily The Richters had dismissed the doctrine of res applied. Id. at their claims defendants Oc- end, “Small, we concluded that tober and the companies had individual, in privity was prepared in anticipation of trial. The the personal representative, and he is companies essentially penalized would be bound ac permit- event that Richter would be tion.” Id. ted to again sue them for the same claims case, In this undisputed it is that Richt- *5 more years than two later. Such a result er was a named in the earlier spirit judicata would violate res such, action. As certainly she exercised prevents doctrine that such conduct. Sim- control over that case. Additionally, as a ilarly, were we to rule otherwise in circum- spouse claiming loss of consortium the stances such as those presented here and action, earlier had direct interest allow this case to proceed, the settlement case, in that and she was in privity with is, unlikely. of claims would be That Terry. Because Richter this case might case never be settled until the indi- capacity her Terry’s as administratrix to vidual dies. We therefore conclude that estate and also as a widow in her own requirement third set forth in Small right, the commonality parties require- has been satisfied here. ment in accordance with the doctrine of Next, we note that judicata res is satisfied here as it was in brought in original action involved the Therefore, Small. we conclude that parties claims, same present as Richter’s trial determined that Richt- thereby final er’s satisfying requirement judicata action was prin- barred on res Small, ciples.2 for res apply. we concept
determined that of “privity” Judgment affirmed. relationship parties
described a whose DARDEN, J., concurs. interest they action are such that may judg nevertheless be bound SULLIVAN, concurs in result with Small, ment in the action. 731 N.E.2d at opinion.
27-28. The term includes those who con SULLIVAN, Judge, concurring re-
trol an action and those whose interests sult. are represented party to the action. Turning
Id. at 28. specifics, the son In my estimation the issue here involved patient of a deceased in Small initiated an is more correctly determined upon the ba- Inasmuch as we have decided neously this case on determined that her cause of action judicata, the basis of res we need not address grounds should be barred on the of collateral Richter’s that the contention trial court erro-
1005 as embodied in the preclusion of issue sis In the Matter of PATERNITY estoppel. The doc
doctrine of collateral A.M., V.B., V.M., OF AND closely is relat estoppel trine of collateral has been said ed Benavides, Appellant- Victor judicata. But of res constitute a “branch” Respondent, identical to claim preclusion issue is not American Pow v. Elec. preclusion. Wedel v. (Ind.Ct. N.E.2d 1122 Corp., er Serv. Phillip Moore, Appellee-Petitioner. trans. denied. See also Small App.1997), (Ind.Ct. No. Inc., 06A04-0303-JV-117. Centocor, denied; App.2000), trans. Indiana Ins. Co. Appeals Court of of Indiana. Servs., Inc., Cmty. v. American (Ind.Ct.App.1999). N.E.2d 1147 27, 2003. June Here, correctly that the asserts claim was and could death because the dam- litigated
not have been death, had not
age injury, yet or i.e. taken personal injury liti-
place when the earlier I regard, this
gation was dismissed. to be supra, distinguished.3
think
Nevertheless, every underlying issue claim, except the issue death itself, was essential to the
earlier There is no cause of action claim.
if the left for the is the only issue of negligence,
issue of The issues death.
products liability, and cancer causa- elements ear-
tion were all essential of the brought by
lier claim Richter when he was are precluded
still alive. Those issues by application of the being relitigated
doctrine of collateral
For reason I concur the affir- judgment.
mance trial court’s of the father’s estate which had dismissed this court held Small’s 1998 complaint damages hospital- related to the prejudice. two claims were identical in The father ization and death of his was barred preceded father’s death had the sense that the There, judicata. hospitaliza- the father’s filing as as the the 1994 lawsuit well tion death were the of Small’s claim. personal representative