Leija v. Materne Bros., Inc.
| Decision Date | 31 May 1983 |
| Docket Number | No. 5069-III-6,5069-III-6 |
| Parties | Maria LEIJA, personal representative of the Estate of Juan Leija, deceased, Appellant, v. MATERNE BROTHERS, INC., a Washington corporation, Respondent. |
| Court | Washington Court of Appeals |
Mark R. Fortier, Monty Futch, Yakima, for appellant.
Norman R. Nashem, Jr., Nashem, Prediletto, Brooks, Schussler & Halpin, Yakima, for respondent.
This is a wrongful death action. Maria Leija appeals an order entered on cross motions for partial summary judgment.
Defendant Materne Brothers, Inc., contracted to repair a section of road in Yakima County. The contract incorporated by reference the document, Department of Highways, State Highway Commission, Standard Specifications for Road and Bridge Construction (1977). Juan Leija, Maria's husband, was killed when he drove his car into one of Materne's machines which was engaged in road repair.
In 1980, Maria Leija filed her first wrongful death action alleging breach of contract or negligence. She moved for a partial summary judgment on the contract claim, requesting the court find Materne was an insurer of the traveling public. This was based on the following language in the contract between Materne and the State under section 1-07, Legal Relations and Responsibilities to the Public, subsection 1-07.23(3): "[T]he Contractor and his Surety shall be liable for injuries and damages to persons and property suffered by reason of the Contractor's operations or any negligence in connection therewith." (Italics ours.) That motion was denied and the first suit was voluntarily dismissed on June 5, 1981.
On June 11, 1981, Leija filed her second suit for wrongful death, again alleging breach of contract and negligence. Materne's answer raised the defense of res judicata. Leija moved to strike the res judicata defense. Materne moved for partial summary judgment to dismiss Leija's first claim breach of contract. The trial court denied Leija's motion to strike the res judicata defense, finding it applied to the breach of contract claim. The court also granted Materne's motion to dismiss the contract action, holding res judicata applied and concluding Materne was not strictly liable. Leija appeals. This appeal is not concerned with the possible remaining action for common law negligence.
The first question presented is whether the trial court erred when it found res judicata applied to the contract claim. Res judicata requires, among other things, a final judgment on the merits. Bordeaux v. Ingersoll Rand Co., 71 Wash.2d 392, 429 P.2d 207 (1967). The fact Leija's motion for partial summary judgment was denied in the first action does not mean Leija's claim was dismissed; it only means Leija was not entitled to a summary judgment. Cf. Glass v. Stahl Specialty Co., 97 Wash.2d 880, 883, 652 P.2d 948 (1982) ().
The motion [for summary judgment] will be granted only if, after viewing the pleadings, depositions, admissions and affidavits and all reasonable inferences that may be drawn therefrom in the light most favorable to the nonmoving party, it can be stated as a matter of law that (1) there is no genuine issue as to any material fact, (2) all reasonable persons could reach only one conclusion, and (3) the moving party is entitled to judgment.
Olympic Fish Prods., Inc. v. Lloyd, 93 Wash.2d 596, 602, 611 P.2d 737 (1980). We conclude Leija was not granted a summary judgment because she failed to satisfy one or more of these requirements. Materne points to that part of the order which states: "[H]aving concluded the defendant Materne Brothers, Inc. is not strictly liable to the plaintiff as a third-party beneficiary of the contract between the defendants ..." as support for the conclusion the first court decided as a matter of law Materne was not strictly liable. Both parties agree a nonmoving party may be entitled to summary judgment. See Leland v. Frogge, 71 Wash.2d 197, 427 P.2d 724 (1967). However, even if Materne was entitled to a summary judgment, there is no record it sought or received a summary judgment order of dismissal in the first action. CR 54(e). Therefore, there was not a final judgment on the merits in the first action as to the contract; res judicata cannot apply. This is consistent with the voluntary dismissal. The...
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