Cunningham v. State

• Decision Date: 10 June 1991
• Docket Number: Nos. 26175-4-I,s. 26175-4-I
• Court: Washington Court of Appeals
• Parties: Chester D. CUNNINGHAM, Appellant, v. STATE of Washington; Pan American World Airways, Inc.; Kirk, Wallace, McKinley, AIA & Associates; David A. McKinley and "Jane Doe" McKinley, husband and wife; Skilling, Helle, Christiansen, Robertson, Inc., a Washington corporation; J.V. Christiansen and "Jane Doe" Christiansen, husband and wife; John B. Skilling and "Jane Doe" Skilling, husband and wife; Helge J. Helle and "Jane Doe" Helle, husband and wife; L.E. Robertson and "Jane Doe" Robertson, husband and wife; Robert B. Sparling and "Jane Doe" Sparling, husband and wife; Cheryl Robbins-Brown and "John Doe" Brown, husband and wife; John L. Messina and "Jane Doe" Messina, husband and wife; Manza, Moceri, Gustafson & Messina, P.S.; and Companies I through Z, Respondents. ; 26002-2-I.

Page 562

61 Wn.App. 562

811 P.2d 225

Chester D. CUNNINGHAM, Appellant, v. STATE of Washington; Pan American World Airways, Inc. Kirk, Wallace, McKinley, AIA & Associates; David A McKinley and "Jane Doe" McKinley, husband and wife Skilling, Helle, Christiansen, Robertson, Inc., a Washington corporation; J.V. Christiansen and "Jane Doe" Christiansen husband and wife; John B. Skilling and "Jane Doe" Skilling, husband and wife; Helge J. Helle and "Jane Doe" Helle, husband and wife; L.E. Robertson and "Jane Doe" Robertson, husband and wife; Robert B. Sparling and "Jane Doe" Sparling, husband and wife; Cheryl Robbins-Brown and "John Doe" Brown, husband and wife; John L. Messina and "Jane Doe" Messina, husband and wife; Manza, Moceri, Gustafson & Messina, P.S.; and Companies I through Z, Respondents.

Nos. 26175-4-I; 26002-2-I.

Court of Appeals of Washington, Division 1.

June 10, 1991.

Mark J. Dynan, Tocoma, for appellant.

Charles C. Huber, Seattle, for respondents.

AGID, Judge.

Chester D. Cunningham appeals two summary judgment orders under which the court dismissed all of his claims against the Manza, Moceri, Gustafson & Messina (Manza Moceri) law firm. He contends that the trial court erred in giving preclusive effect to a partial summary judgment order entered in a related federal district court action, and in ruling as a matter of law that there were no genuine issues of material fact as to his remaining negligence claims. We affirm.

In the early morning hours of March 6, 1983, Cunningham drove into a concrete bollard situated in front of the Luoto Road gate to the Naval Submarine Base at Bangor. Cunningham was legally intoxicated at the time of the accident, with a blood alcohol level of at least .22. Cunningham and his passenger, Charles McBride, both sustained serious injuries.

Investigators for Cunningham and McBride concluded that Luoto Road's signage, lighting, and striping did not meet minimum state, federal, or navy standards, and that safety design standards required the bollard to have been constructed with an impact attenuation device. McBride filed suit in federal court against Cunningham, the United States, and several other entities which he alleged had been involved in the negligent design and construction of the road and gate.

The United States moved for summary judgment against McBride. It argued that it was protected from liability for all of McBride's claims under the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a). Both McBride and Cunningham opposed the United States' motion. Cunningham's attorneys filed a 17-page responsive memorandum in Cunningham's behalf. Despite Cunningham's and McBride's efforts, the federal court held that the United States' road design, gate design, signage, and bollard design and placement decisions involved conflicting concerns of safety and security and were therefore "of a nature and quality that Congress intended to shield from liability". The court further held, however, that there was no evidence that the government's lighting and road striping decisions were grounded in concerns of social, economic, or political policy and consequently refused to dismiss McBride's claims on those issues. McBride and Cunningham moved for reconsideration. The court denied their motions. Ultimately, McBride settled all of his remaining claims. Cunningham participated in the settlement.

Cunningham's lawsuit took a different course than McBride's. His original attorneys, Manza Moceri, failed to file a claim against the United States before expiration of the applicable statute of limitations. Through his present attorneys, Cunningham filed suit in King County Superior Court against Manza Moceri and many of the same defendants as were involved in Cunningham's original personal injury suit. Because Cunningham's claim against Manza Moceri is for legal malpractice in failing to timely file a lawsuit, the parties agree that in the state court suit, Manza Moceri stands in the same position as would the United States.

After the McBride settlement, Manza Moceri moved for partial summary judgment in Cunningham's state court action. It argued that because it stood in the same shoes as the United States, the federal court's partial summary judgment order collaterally estopped Cunningham from asserting claims relating to the government's alleged negligent road design, gate design, signage, and its alleged negligent bollard design and placement. The trial judge granted Manza Moceri's motion.

Manza Moceri then moved to dismiss Cunningham's remaining claims relating to the United States' alleged negligence in lighting and striping Luoto Road. Again, the law firm prevailed. As a result of Manza Moceri's two motions, all of Cunningham's claims against Manza Moceri were dismissed. This appeal followed.

APPLICATION OF COLLATERAL ESTOPPEL

We first consider whether the superior court erred in ruling that Cunningham was collaterally estopped from litigating claims dismissed by the federal court's order of partial summary judgment. Collateral estoppel precludes consideration of issues that have previously been actually litigated and determined. Under Washington law, collateral estoppel applies when: (1) the previously-decided issue is identical with the one presented in the action in question; (2) there was a final judgment on the merits; (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the prior adjudication; and (4) application of the doctrine does not work an injustice on the party against whom the doctrine will be applied. McDaniels v. Carlson, 108 Wash.2d 299, 303, 738 P.2d 254 (1987); Chau v. Seattle, 60 Wash.App. 115, 119, 802 P.2d 822 (1991). Only the finality requirement is seriously disputed here. ¹

Cunningham argues that the trial court erred in finding collateral estoppel because the partial summary judgment was not a final judgment. He contends that finality for collateral estoppel purposes is the same as finality for determining appealability under CR 54. We recently rejected a similar argument on the ground that such a rigorous finality requirement does not implement the purposes of collateral estoppel: to protect prevailing parties from relitigating issues already decided in their favor, and to promote judicial economy. Chau, 60 Wash.App. at 120-21, 802 P.2d 822.

With Chau, this court aligned itself with the majority of courts which employ a pragmatic approach to determine finality for purposes of collateral estoppel. See generally 18 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 4434, at 321 (1981) (noting that the strict finality requirement has been relaxed in recent decisions in favor of a practical view of finality); 1B J. Moore, Federal Practice p 0.441, at 745 (1983) ("there has been an increasing judicial intolerance with efforts to avoid decisions made after fair consideration by shifting the scene to another courtroom"). The leading case advocating the pragmatic approach is Lummus Co. v. Commonwealth Oil Refining Co., 297 F.2d 80 (2nd Cir.1961), cert. denied, 368 U.S. 986, 82 S.Ct. 601, 7 L.Ed.2d 524 (1962), where Judge Friendly wrote:

Whether a judgment, not "final" in the sense of 28 U.S.C. § 1291 [for purposes of appeal], ought nevertheless be considered "final" in the sense of precluding further litigation of the same issue, turns upon such factors as the nature of the decision (i.e., that it was not avowedly tentative), the adequacy of the hearing, and the opportunity for review. "Finality" in the context here relevant may mean little more than that the litigation of a particular issue has reached such a stage that a court sees no really good reason for permitting it to be litigated again.

Lummus, 297 F.2d at 89.

The Restatement (Second) of Judgments (1982) embraces the Lummus court's pragmatic approach. It states that, for purposes of issue preclusion, a final judgment "includes any prior adjudication of an issue in another action that is determined to be sufficiently firm to be accorded conclusive effect." Restatement, supra at § 13. Factors for a court to consider in determining whether the requisite firmness is present include whether the prior decision was adequately deliberated, whether it was firm, rather than tentative, whether the parties were fully heard, whether the court supported its decision with a reasoned opinion, and whether the decision was subject to appeal or in fact was reviewed on appeal. Restatement, supra at § 13, comment g.

Whether these criteria are met in the case of a partial summary judgment turns on the circumstances of each case. ² As one commentator notes, partial summary judgment

represents a determination that the outcome of the issues is clear. At the same time, it is often vulnerable to appellate reversal. Perhaps preclusion should be available only on showing both that the summary judgment was thoroughly contested in the first action and that substantial burdens would be required to renew the summary judgment in the second action.

18 Wright, Miller & Cooper, supra at 325-26.

Cases from other jurisdictions illustrate circumstances in which collateral estoppel is properly applied to a partial summary judgment. In Carpenter v. Young, 773 P.2d 561 (Colo.1989), the trial court entered a partial summary judgment dismissing plaintiffs' malpractice claims against a hospital resident. The plaintiffs then settled with all remaining defendants except the attending physician. The trial court subsequently gave preclusive effect to the partial summary judgment and refused to allow plaintiffs to pursue a respondeat superior claim against the attending physician. Plaintiffs' respondeat superior claim was based on the resident's alleged negligence.

The Colorado Supreme Court upheld the trial court. In so holding, the court first adopted the pragmatic finality approach set forth in Lummus and adopted by the...