Ragnar Benson, Inc. v. Wm. P. Jungclaus Co., Inc.

• Decision Date: 21 January 1976
• Docket Number: No. 1--275A36,1--275A36
• Citation: 340 N.E.2d 361,167 Ind.App. 628
• Parties: RAGNAR BENSON, INC., Appellant (Defendant, Cross-Claimant below), v. WM. P. JUNGCLAUS CO., INC., Appellee (Cross-Defendant below).
• Court: Indiana Appellate Court

Page 361

340 N.E.2d 361

167 Ind.App. 628

RAGNAR BENSON, INC., Appellant (Defendant, Cross-Claimant below), v. WM. P. JUNGCLAUS CO., INC., Appellee (Cross-Defendant below).

No. 1--275A36.

Court of Appeals of Indiana, First District.

Jan. 21, 1976.

Rehearing Denied Feb. 26, 1976. Opinion Superseded, See 352 N.E.2d 817.

Peter B. Stewart, James J. Stewart, Indianapolis, for appellant; Stewart, Irwin, Gilliom, Fuller & Meyer, Indianapolis, of counsel.

Lloyd H. Milliken, Jr., F. Boyd Hovde, John A. Young, Donald L. Dawson, James W. Treacy, Indianapolis, for appellee; Locke, Reynolds, Boyd & Weisell, Indianapolis, of counsel.

LYBROOK, Judge.

This appeal stems from an action to recover damages for personal injuries sustained in the collapse of a portion of a building being erected at a construction project. At issue herein is the trial court's disposition of a cross-claim for indemnification between two party defendants.

The original plaintiff, Gerald R. Beck, was injuried while employed as an iron worker by Ben Hur Construction Company. Plaintiff's complaint named the following defendants: National By-Products, Inc., owner of the premises; Ragnar Benson, Inc. (Ragnar Benson), architect and general contractor; Wm. P. Jungclaus Inc. (Jungclaus), building subcontractor of Ragnar Benson; and Bailey Masonry, subcontractor of Jungclaus.

As part of its responsive pleadings, defendant Ragnar Benson, appellant herein, cross-claimed for indemnification against Jungclaus alleging (1) that pursuant to the contract between Ragnar Benson and Jungclaus, Jungclaus 'agreed, among other things, to indemnify and save harmless cross-claimant from any and all loss, liability, damages, costs, attorney fees or other expenses incidental thereto of every kind and nature whatsoever on account of any claims for injury to persons employed by the cross-defendant or his subcontractors', and (2) that Jungclaus breached its contract with Ragnar Benson in that it or its subcontractors deviated from the construction plans, specifications and drawings thereby proximately causing the accident resulting in plaintiff's injuries, and (3) that Jungclause negligently performed its duties under its contract with Ragnar Benson thereby proximately resulting in plaintiff's injuries.

On July 28, 1972, Ragnar Benson moved for summary judgment on its cross-claim against Jungclaus, which motion was overruled by the trial court on October 18, 1972. On November 16, 1973, Jungclaus moved for summary judgment on Ragnar Benson's claim for indemnity, and Ragnar Benson renewed its request for summary judgment. On January 16, 1974, the court denied Jungclaus' motion for summary judgment and failed to sustain Ragnar Benson's renewed request for summary judgment.

After Ragnar Benson moved for summary judgment, yet prior to Jungclaus' motion, Ragnar Benson and Jungclaus settled plaintiff's claim against them, each contributing $125,000. However, Ragnar Benson and Jungclaus entered into no settlement as to the issue of indemnification.

On July 2, 1974, the court granted leave to Jungclaus to file a fourth defense to Ragnar Benson's cross-claim. Said defense asserted res judicata and collateral estoppel based upon the disposition of an indemnification claim between Ragnar Benson and Jungclaus in a companion case in the Marion Superior Court. Plaintiff in that case, William Joseph App, had susindemnification against Jungclaus which, the same circumstances as plaintiff Beck and had brought suit against Ragnar Benson and Jungclaus among others. Therein, Ragnar Benson had filed a responsive pleading which included a cross-claim for tained injuries at the same time and under except for damages claimed, was identical to the cross-claim filed by Ragnar Benson in the instant action.

In the App case, Jungclaus moved to dismiss Ragnar Benson's cross-claim on the ground that it failed to state a claim upon which relief could be granted. Said motion was sustained, and thereafter on January 16, 1974, the Marion Superior Court entered final judgment in favor of Jungclaus on the cross-claim. No appeal was perfected from that judgment within the time permitted under the rules of procedure.

On July 29, 1974, Jungclaus moved for summary judgment on the cross-claim in the case at bar asserting collateral estoppel on the basis of the judgment entered against Ragnar Benson on its cross-claim in the App case. Thereafter, the court granted Jungclaus' motion and entered judgment in its favor.

Ragnar Benson's appeal from that judgment presents the following issues for review:

(1) Whether the trial court erred in determining that the judgment of dismissal in the App case operated to collaterally estop prosecution of Ragnar Benson's cross-claim for indemnification in the instant case.

(2) Whether the trial court erred in denying Ragnar Benson's motion for summary judgment on its cross-claim for indemnification, which motion and the ruling thereon were made prior to the entry of the judgment of dismissal in the App case.

I.

In the instant case, Jungclaus asserted collateral estoppel grounded on the branch of the rule of res judicata known as estoppel by verdict or finding. This doctrine is described as follows in Town of Flora v. Indiana Service Corp. (1944), 222 Ind. 253, 53 N.E.2d 161:

'The other branch of the subject applies where the causes of action are not the same, but where some fact or question has been determined and adjudicated in the former suit, and the same fact or question is again put in issue in a subsequent suit between the same parties. In such cases the former adjudication of the fact or question, if properly presented and relied on, will be held conclusive on the parties in the latter suit, regardless of the identity of the causes of action, or the lack of it, in the two suits. When the second action between the same parties is on a different cause of action, claim, or demand, it is well settled that the judgment in the first suit operates as an estoppel only as to the point or question actually litigated and determined, and not as to other matters which might have been litigated and determined. In such cases the inquiry must always be as to the point or question actually litigated and determined in the original action. This branch of the subject may appropriately be described as 'estoppel by verdict or finding." See also, Booher v. Richmond Square, Inc. (1974), Ind.App., 310 N.E.2d 89.

Not all judgments of dismissal on the grounds stated in Ind. Rules of Procedure, Trial Rule 12(B) constitute an adjudication on the merits so as to bar presentation of the same issues in a subsequent action. Eg., City of Hammond v. Board of Zoning Appeals (1972), 152 Ind.App. 480, 284 N.E.2d 119; Cooper v. Board of Review (1971), 150 Ind.App. 232, 276 N.E.2d 533 (TR. 12(B) (1), want of jurisdiction); State v. Rankin (1973), 260 Ind. 228, 294 N.E.2d 604 (TR 12(B)(6), dismissal for want of real party in interest not a bar to subsequent action by real party in interest). However, it is generally considered that the entry of judgment following dismissal on the ground of failure to state a claim upon which relief could be granted constitutes an...