Radosta v. Chrysler Corp.

• Decision Date: 09 December 1982
• Docket Number: No. 81-2929,81-2929
• Citation: 110 Ill.App.3d 1066,443 N.E.2d 670,66 Ill.Dec. 744
• Parties: , 66 Ill.Dec. 744 Thomas J. RADOSTA, Plaintiff-Appellant, v. CHRYSLER CORPORATION, a foreign corporation, and Des Plaines Chrysler-Plymouth Sales, Inc., a foreign corporation, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 670

443 N.E.2d 670

110 Ill.App.3d 1066, 66 Ill.Dec. 744

Thomas J. RADOSTA, Plaintiff-Appellant, v. CHRYSLER CORPORATION, a foreign corporation, and Des Plaines Chrysler-Plymouth Sales, Inc., a foreign corporation, Defendants-Appellees.

No. 81-2929.

Appellate Court of Illinois First District, Fourth Division.

Dec. 9, 1982.

Frank Glazer, Ltd., Chicago, for plaintiff-appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith and Stanley J. Davidson, Chicago, of counsel), for defendants-appellees.

ROMITI, Justice:

In 1972 plaintiff Radosta, while driving on the Calumet Expressway, lost control of his truck and collided with a car driven by Patrick Millette. Millette sued Radosta in negligence and the manufacturer and seller of the truck in strict liability and (as to the dealer) negligence and (as to the manufacturer) wilful and wanton conduct because the steerage in Radosta's truck was defective and this defect was known to the manufacturer. Radosta counterclaimed against the dealer and manufacturer in both strict liability and negligence for the damage to the truck. He did not file a third party complaint against either the dealer or the manufacturer for indemnification for any liability he might sustain in Millette's action against him although such third party action was permitted by section 25(2) of the Civil Practice Act (Ill.Rev.Stat.1971, ch. 110, par. 25(2)). The jury returned verdicts for Millette and against all three defendants, and for Radosta and against the dealer and manufacturer. This court affirmed in Millette v. Radosta (1980), 84 Ill.App.3d 5, 39 Ill.Dec. 232, 404 N.E.2d 823, leave to appeal denied. Among other issues, the court ruled that the verdicts for and against Radosta were not inconsistent since while, as Radosta admitted, if he was so negligent as to be liable to Millette he could not recover on his own claim in negligence, he could still recover in strict liability.

As noted above, Radosta in the original action did not seek indemnity for Millette's claim against him. Accordingly, having paid that judgment (or some part thereof--the record is contradictory as to exactly how much he paid), he has filed this action seeking indemnification "for the reason that the primary misconduct causing Millette's injury was the defect in the product [Radosta's vehicle] while Plaintiff's misconduct, if any, was passive or secondary." Defendants initially moved to dismiss the complaint on the basis that in the original action Radosta had been found guilty of active misconduct and that that finding was binding on him barring any recovery in this action. Radosta responded by contending that he was not suing on the theory of active-passive negligence but in strict liability; he did not, however, amend his complaint which only alleged that defendants were active tortfeasors and his negligence was only passive. Defendants in their reply raised this pleading defect and then contended that Radosta was barred by res judicata from seeking a second recovery in strict liability.

The trial court found that any claim for indemnification was barred by res judicata and dismissed the complaint.

We affirm the holding because: (1) regardless of whether the claim is one in negligence or strict liability, it is barred by res judicata since it arose out of the same group of operative facts in the first action and it could have been raised at that time; and (2) Radosta is collaterally estopped by the judgment in the first action from denying that he was actively negligent.

I.

Radosta, relying on Security Insurance Co. v. Mato (1973), 13 Ill.App.3d 11, 298 N.E.2d 725, contends that since section 25(2) of the Civil Practice Act is only permissive, the party may wait until after he is found liable before filing a claim for indemnity. This is true; it is also irrelevant. The issue here is not whether Radosta could have waited until after the conclusion of the first action before making any claim against the defendants (see for example City of Burbank v. Glazer (1979), 76 Ill.App.3d 294, 32 Ill.Dec. 150, 395 N.E.2d 97, where none of the issues between the co-defendants was litigated in the initial action). Rather, the issue here is whether Radosta having elected to counterclaim against the defendants in the initial action could split his cause of action, seeking recovery for only some of the damages sustained in the first suit and seeking to recover the rest of the damages arising out of the accident in the second action.

Illinois, like most states, as a matter of public policy generally does not permit splitting causes of actions. (46 Am.Jr.2d Judgments § 405.) As this court held in Baird & Warner, Inc. v. Addison Industrial Park, Inc. (1979), 70 Ill.App.3d 59, 26 Ill.Dec. 1, 387 N.E.2d 831, leave to appeal denied, in accord: Morris v. Union Oil Co. (1981), 96 Ill.App.3d 148, 51 Ill.Dec. 770, 421 N.E.2d 278, leave to appeal denied, generally a plaintiff cannot divide an entire demand or cause of action so as to maintain several actions for his recovery; he cannot indulge in piecemeal litigation. Thus an entire claim arising from a single tort cannot be divided and be the subject of several actions regardless of whether or not the party suing has recovered all he might have recovered. This is true even as to prospective damages, as our courts have held that there cannot be successive actions brought for a single tort as damages in the future are suffered but the one action must embrace prospective as well as...