Leow v. A&B Freight Lines, Inc.
Annotate this Case
NOTICE: Under Supreme Court Rule 367 a party has 21 days after
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 80438--Agenda 25--September 1996.
HAROLD S. LEOW, Appellant, v. A&B FREIGHT LINE, INC., et al. (A&B
Freight Line, Inc., Appellee).
Opinion filed February 6, 1997.
JUSTICE HARRISON delivered the opinion of the court:
On March 11, 1992, plaintiff, Harold Leow, suffered injuries
in a loading dock accident. At the time of the accident, plaintiff
was using a forklift to load skids containing manufactured products
onto a semi-trailer truck owned by defendant A&B Freight Line,
Inc., and operated by its employee, defendant Keith Pasch.
Plaintiff alleges that without warning, Pasch drove the semi-
trailer truck away from the loading dock, causing the forklift
which Leow was operating to fall from the loading dock to the
concrete floor below.
On March 8, 1994, Leow filed a single-count complaint naming
A&B Freight Line, Inc., as the sole defendant. The count alleged
that Keith Pasch committed various negligent acts which resulted in
injury to plaintiff. The complaint further alleged that A&B Freight
Line, through its employee, Pasch, was liable under the doctrine of
respondeat superior for injuries suffered by Leow. On September 14,
1994, Leow filed an amended complaint adding a second count against
Pasch. Count I of the amended complaint named A&B Freight Line and
remained identical to the original complaint. Count II, against
Pasch, alleged that his negligent operation of the semi-trailer
truck resulted in permanent injuries to Leow.
Subsequently, Pasch filed a motion to dismiss count II,
pursuant to section 2--619(5) of the Code of Civil Procedure (735
ILCS 5/2--619(5) (West 1994)), claiming that the two-year statute
of limitations had run as to him. The trial court granted Pasch's
motion to dismiss finding that Pasch was not properly named as a
defendant until the amended complaint was filed on September 14,
1994, more than two years after the accident took place. The ruling
was made appealable pursuant to Supreme Court Rule 304(a) (155 Ill.
2d R. 304(a)) on September 28, 1994. Leow did not appeal this
ruling.
On November 1, 1994, A&B Freight Line filed a motion to
dismiss count I of plaintiff's complaint on the grounds that a
dismissal with prejudice of an action against A&B Freight's
employee, Pasch, barred any action against A&B Freight based on the
doctrines of respondeat superior and res judicata. The trial court
granted A&B Freight's motion to dismiss count I on January 31,
1995. The basis for this ruling was that the involuntary dismissal
of count II, against Pasch, acted as a prior adjudication on the
merits and therefore the doctrine of res judicata barred Leow's
claim against A&B Freight.
Leow asked the trial court to reconsider its order of January
31, 1995, dismissing count I of his complaint. In his motion for
reconsideration and other relief, Leow requested that the trial
court amend its first order of September 28, 1994, dismissing count
II by inserting language that the dismissal of Pasch was not an
adjudication on the merits of the action against A&B Freight. The
trial court denied Leow's motion to reconsider.
The appellate court affirmed, with one justice specially
concurring. 276 Ill. App. 3d 985. The court held that the
involuntary dismissal of count II, on statute of limitations
grounds, was a prior adjudication on the merits pursuant to Supreme
Court Rule 273 (134 Ill. 2d R. 273), and therefore the dismissal
acted as res judicata to Leow's claim against A&B Freight. 276 Ill.
App. 3d at 988. We granted Leow's petition for leave to appeal. 155
Ill. 2d R. 315. For the reasons which follow, we reverse.
At issue in this appeal is whether Pasch's involuntary
dismissal, on statute of limitations grounds, operates as an
adjudication on the merits barring Leow's timely respondeat
superior claim against defendant, A&B Freight. We look to whether
a prior judgment is an adjudication on the merits to determine
whether it should be accorded res judicata effect against another
defendant to the action.
The doctrine of res judicata provides that an adjudication on
the merits "rendered by a court of competent jurisdiction is
conclusive as to the rights of the parties and their privies."
People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 294 (1992). An adjudication on the merits is an
absolute bar to subsequent actions raising the same claims or
demands and involving the same parties or their privies.
Progressive Land, 151 Ill. 2d at 294. Courts have determined that
for res judicata to bar a subsequent action, three criteria must be
met: (1) there must be a final judgment on the merits rendered by
a court of competent jurisdiction; (2) an identity of causes of
action; and (3) an identity of parties or their privies.
Progressive Land, 151 Ill. 2d at 294.
In this case, the only element of res judicata in serious
dispute is the first element concerning whether the granting of the
involuntary dismissal in favor of Pasch constitutes a final
judgment on the merits barring the remaining claim against A&B
Freight. The second element of res judicata is clearly present
since Leow is suing both A&B Freight and Pasch for the same
injuries arising out of the same accident. Furthermore, Leow's
claim against A&B Freight is based on a theory of vicarious
liability and under such a theory the employer and employee are
considered to be " `one and the same' defendant." Downing v.
Chicago Transit Authority, 162 Ill. 2d 70, 74 (1994), quoting Towns
v. Yellow Cab Co., 73 Ill. 2d 113, 125 (1978). Therefore, for res
judicata purposes, A&B Freight is in privity with Pasch and the
third element is present. The only remaining dispute is whether the
first element was established.
Therefore, we need to determine whether the involuntary
dismissal of Pasch, due to the two-year statute of limitations
running, should operate as an adjudication on the merits barring
suit against Pasch's employer. Plaintiff contends that the
involuntary dismissal of Pasch could not be considered an
adjudication on the merits because the actual merits of Leow's
claim were never examined. Plaintiff notes that the only issue the
court resolved when it dismissed Pasch was that he was named a
party to the lawsuit after the statute of limitation had run.
Plaintiff contends that a prior judgment should not be accorded res
judicata effect, against another defendant to the action, unless
the judgment reached the actual merits of the suit. In support,
Leow cites to Downing v. Chicago Transit Authority, 162 Ill. 2d 70
(1994), a recent decision of this court.
In Downing, this court held that a summary judgment order,
entered in favor of a bus driver on statute of limitations grounds,
was not a res judicata bar to a timely respondeat superior suit
against the Chicago Transit Authority (CTA), which employed him. In
Downing, a CTA bus driven by defendant Williams struck plaintiff,
a bicyclist. Plaintiff filed suit against the CTA and its "unknown
employee and agent." As in the case at bar, plaintiff amended his
complaint naming both the employee and employer as defendants after
the two-year statute of limitations had expired. First, the trial
court granted summary judgment in favor of Williams, reasoning that
he was not properly named a defendant until more than two years
after the accident took place. Subsequently, the trial court
granted the CTA's motion for summary judgment and the appellate
court affirmed. The basis for these rulings by the lower courts was
that "the summary judgment in favor of Williams was a prior
adjudication on the merits, and therefore the doctrine of res
judicata barred plaintiff's present claims against the CTA."
Downing, 162 Ill. 2d at 73.
This court reversed. The court determined, as we have here,
that the only element of res judicata in dispute was whether the
judgment releasing the employee from liability was considered an
adjudication on the merits. Downing, 162 Ill. 2d at 74. In
determining whether the summary judgment as to Williams was an
adjudication on the merits, this court stated it "cannot ignore the
basis on which the summary judgment was granted." Downing, 162 Ill. 2d at 77. This court went on to examine the basis for granting
summary judgment in Downing and reasoned that: "When a summary
judgment is granted because the statute of limitations has run, the
merits of the action are never examined." Downing, 162 Ill. 2d at
77. The Downing court held that when the basis for granting summary
judgment bears no relationship to the actual merits of the case,
"it would be inappropriate to apply the doctrine of res judicata to
another party to the action." Downing, 162 Ill. 2d at 77. Finally,
this court concluded that to label a summary judgment order, such
as the one in Downing, an adjudication on the merits "would be the
quintessential act of exalting form over substance." Downing, 162 Ill. 2d at 77.
The Downing decision seems virtually identical to the case at
bar. In both cases, the employers were timely named, but claims
against the employees were not added until after the statute of
limitations had expired. Both employees received either an
involuntary dismissal or summary judgment in their favor based on
their statute of limitation defenses. Subsequently, the employers
remaining in both suits claimed that the release of their
employees, on statute of limitations grounds, operated as
adjudications on the merits barring the claims against them. At
issue in both cases was whether these prior judgments should be
given res judicata effect with respect to the remaining defendants.
As stated, the Downing court concluded that the basis for
granting summary judgment bore no relationship to the actual merits
of the case. Therefore, the court refused to label a summary
judgment order on statute of limitations grounds an adjudication on
the merits. In the present case, if we apply the reasoning from
Downing and look to the basis on which the involuntary dismissal
was granted, we must also conclude that the actual merits of the
action were never examined. In both cases, the only issue the lower
courts decided was whether the employees were timely named as
defendants. As in Downing, the basis for granting the employee's
motion bears no relationship to the actual merits of Leow's case.
Under this reasoning, it would be improper to apply the doctrine of
res judicata to another party to the action.
The only distinction which can be drawn between the two cases
is the type of procedural device used by the defendant employees to
assert their statute of limitations defenses. As stated in Downing,
the driver filed a motion for summary judgment, while in the case
at bar, Pasch filed a section 2--619 motion to dismiss. Defendant
A&B Freight contends that the difference between the procedural
choice of a motion for summary judgment over a motion to dismiss is
critical. Defendant asserts that such a distinction is critical
because pursuant to Illinois Supreme Court Rule 273 (134 Ill. 2d R.
273) an involuntary dismissal of an action is deemed an
adjudication on the merits for purposes of invoking the doctrine of
res judicata. Rule 273 states that "[u]nless the order of dismissal
or a statute of this State otherwise specifies, an involuntary
dismissal of an action, other than a dismissal for lack of
jurisdiction, for improper venue, or for failure to join an
indispensable party, operates as an adjudication upon the merits."
134 Ill. 2d R. 273. Defendant asserts that since the involuntary
dismissal of Pasch did not fall under one of these exceptions
outlined in Rule 273, and the order of dismissal did not specify
otherwise, the judgment in favor of Pasch operated as an
adjudication on the merits.
Defendant argues that Downing supports this interpretation of
Rule 273. The Downing court did recognize a distinction between an
involuntary dismissal and an order granting summary judgment,
stating that Rule 273 only applies to involuntary dismissals such
as when a motion to dismiss under section 2--615 or 2--619 is
granted. Downing, 162 Ill. 2d at 75. Furthermore, the court stated
in dicta that if Rule 273 had applied in Downing, it would compel
the opposite result because certain "involuntary dismissals do
indeed operate as judgments on the merits." Downing, 162 Ill. 2d at
75.
Following Downing, this court applied Rule 273 in Rein v.
David A. Noyes & Co., 172 Ill. 2d 325, 335-36 (1996), to hold that
the dismissal of a claim on statute of limitations grounds operated
as an adjudication on the merits barring plaintiffs from asserting
that claim in a successive action against the same defendants.
Rein, however, is distinguishable. Unlike that case, the matter
before us involves a separate claim against a different defendant.
This distinction is critical. Where a different defendant is
involved, as in the present case, Rule 273 cannot be applied
mechanically, because doing so would yield absurd and unjust
results. If the rule could be invoked here, plaintiff would be
precluded from seeking redress from A&B Freight, the employer,
simply because he made a belated attempt to join Pasch, the
employee. Had he never attempted to join the employee, the action
against A&B Freight would have proceeded normally. Considering that
the employee is not even a necessary party to the litigation
against the employer in cases such as this (see McCottrell v. City
of Chicago, 135 Ill. App. 3d 517, 519 (1985)), dismissal of A&B
Freight based on plaintiff's delay in adding Pasch makes no sense
at all.
To avoid such anomalies, we must look to the purpose and
intent of Rule 273 in determining whether a dismissal against one
defendant based on statute of limitations grounds should be deemed
to be an adjudication on the merits as to a different defendant.
Rule 273 was adopted in 1975 and was modeled after Federal Rule of
Civil Procedure 41(b). 58 Ill. 2d R. 273, Committee Comments.
Therefore, we will examine Rule 41(b) and its history to guide our
interpretation of Rule 273. At common law, a dismissal on grounds
other than the actual merits of the case would not constitute res
judicata in a later case. Madden v. Perry, 264 F.2d 169, 175 (7th
Cir. 1959); Haldeman v. United States, 91 U.S. 584, 585-86, 23 L. Ed. 433, 434 (1876). The Supreme Court has stated that it did not
discern in Rule 41(b) "a purpose to change this common-law
principle with respect to dismissals in which the merits could not
be reached for failure of the plaintiff to satisfy a precondition."
Costello v. United States, 365 U.S. 265, 286, 5 L. Ed. 2d 551, 565,
81 S. Ct. 534, 545 (1961). According to the Supreme Court, the res
judicata effect of Rule 41(b) dismissals was intended to apply to
situations where a defendant had to incur the inconvenience of
preparing to meet the merits of a controversy. Costello, 365 U.S.
at 286, 5 L. Ed. 2d at 565, 81 S. Ct. at 545.
Applying these principles, the Supreme Court, in Costello,
held that the dismissal of a previous complaint in a
denaturalization proceeding, for failure to file an affidavit of
good cause, was not an adjudication on the merits under Rule 41(b).
The Court reasoned that when determining whether dismissals, not
otherwise provided for under the rule, operate as adjudications on
the merits, "it seems reasonable to confine them to those
situations where the policy behind the enumerated grounds is
equally applicable." Costello, 365 U.S. at 286, 5 L. Ed. 2d at 565,
81 S. Ct. at 545. The Court further reasoned that obtaining a
dismissal, due to the government's failure to file an affidavit,
did not put the petitioner to the trouble of preparing a defense
and meeting the merits of the case. Costello, 365 U.S. at 287, 5 L. Ed. 2d at 565, 81 S. Ct. at 545. Therefore, the Supreme Court held
that the policy behind Rule 41(b) would not be furthered by
treating a dismissal for failure to file an affidavit as an
adjudication on the merits. Costello, 365 U.S. at 287, 5 L. Ed. 2d
at 566, 81 S. Ct. at 546.
Accordingly, where separate defendants are involved, we hold
that as with Rule 41(b), only those types of involuntary dismissals
that serve the policy behind Supreme Court Rule 273 should be
treated as adjudications on the merits. Since Rule 273 was modeled
after Federal Rule 41(b), the policy behind the rules is the same.
As with Rule 41(b) dismissals, the res judicata effect of Rule 273
dismissals was also intended to apply to situations where
defendants are put to the inconvenience of preparing to meet the
merits of the case. Rule 273 was designed to protect a defendant
from relitigating the same matter over again after the defendant or
his privy was dismissed in a prior proceeding.
That policy is not served by dismissing A&B Freight from this
case. From our previous analysis, it is apparent that A&B Freight
never had to incur the inconvenience of preparing a defense and
meeting the merits of this controversy. In this case, Pasch, A&B
Freight's agent, was dismissed from this action for the sole reason
that he was not properly named a defendant until after the statute
of limitations had expired. Such an order of dismissal only decides
the merits of Pasch's section 2--619 motion and was not a
determination of the merits of the underlying claim. Since the
merits were never examined, A&B Freight was never put to the
inconvenience of preparing a defense. A&B Freight merely asserted
that Pasch's involuntary dismissal, on grounds not even in
controversy in A&B Freight's suit, acted as res judicata to
plaintiff's claim against A&B Freight. In effect, Pasch's defense
was simply transferred to A&B Freight, and no issues between Leow
and A&B Freight were ever actually decided. We conclude that the
policy behind Rule 273, and its model, Federal Rule 41(b), would
not be furthered by treating an involuntary dismissal on statute
of limitations grounds as an adjudication on the merits under these
circumstances.
We further find that the fact that the employee in this case
utilized a section 2--619 motion to dismiss, rather than a motion
for summary judgment, does not warrant a different result from that
reached in Downing. The policy behind Rule 273 and its federal
counterpart supports a decision consistent with the reasoning in
Downing. To adhere to the policy behind Rule 273, an involuntary
dismissal as to the employee, like a summary judgment, should not
be automatically labeled a judgment on the merits with respect to
the employer. But rather, as directed in Downing, the basis on
which the judgment was granted should be examined to determine
whether the merits of the case were ever considered.
Moreover, on a section 2--619 motion to dismiss, a trial court
has even less of an opportunity to examine the real merits of a
plaintiff's case than on a motion for summary judgment. On motions
for summary judgment, trial courts normally examine pleadings,
depositions, admissions on file, and affidavits to determine
whether there is any general issue of material fact to be tried by
a jury. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,
517-18 (1993). Section 2--619 motions to dismiss, on the other
hand, provide a mechanism for courts to dispose of issues of law
based on certain defects and defenses, outlined in the statute. 735
ILCS 5/2--619 (West 1994). In Downing, the court already determined
that an order granting summary judgment to an agent, on statute of
limitations grounds, was not a bar to the action against the
principal, the reason being that when summary judgment is granted
for failure to meet the statute of limitations, the actual merits
of the suit are never examined. Downing, 162 Ill. 2d at 77. The
standard should not be higher for section 2--619 dismissals, where
a court has even less chance to look at the merits of the
underlying cause of action. We conclude that there is no reason to
treat a section 2--619 motion to dismiss differently than a motion
for summary judgment when both motions were granted on the same
grounds.
In this case, as in Downing, Pasch was dismissed from the suit
for reasons bearing no relationship to the actual merits. We
conclude that the involuntary dismissal of Pasch was not an
adjudication on the merits as to A&B Freight. The first element of
res judicata was not present in this case; therefore, it was error
to grant A&B Freight's motion to dismiss. As in Downing, in the
present case, plaintiff's action against the principal was not
barred by the doctrine of res judicata. Accordingly, we reverse the
judgments of the circuit and appellate courts and remand to the
circuit court for further proceedings.
Appellate court reversed;
circuit court reversed;
cause remanded.
JUSTICE McMORROW, specially concurring:
I agree that plaintiff's complaint against A&B Freight should
not be dismissed under the doctrine of res judicata, but not for
the reasons offered by the majority. In my view, the majority's
analysis is flawed and likely to cause unnecessary confusion in
future cases. I reach this conclusion for several reasons, and
write separately to address each in turn.
I
A. Flawed Analysis
The dispositive issue in this appeal is whether an employer
may assert the involuntary dismissal of its employee, obtained on
statute of limitations grounds, as a basis for its own dismissal by
virtue of the doctrine of res judicata. That doctrine provides that
a final judgment on the merits bars a subsequent action between the
same parties or their privies on the same cause of action. People
ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 294 (1992). Three requirements must be met for res judicata to
apply: (1) there must be a final judgment on the merits rendered by
a court of competent jurisdiction; (2) there must be an identity of
causes of action (or defenses); and (3) there must be an identity
of parties or their privies. Progressive Land, 151 Ill. 2d at 294.
In this case, the majority begins its analysis by noting that
"the only element of res judicata in serious dispute is the first
element concerning whether the granting of the involuntary
dismissal in favor of [the employee] constitutes a final judgment
on the merits barring the remaining claim against A&B Freight."
Slip op. at 3. As to the final two elements, the majority
concludes:
" `The second element of res judicata is clearly present
since [plaintiff] is suing both A&B Freight and [its
employee] for the same injuries arising out of the same
accident. Furthermore, [plaintiff's] claim against A&B
Freight is based on a theory of vicarious liability and
under such a theory the employer and employee are
considered to be "one and the same" defendant.' " Slip
op. at 3, quoting Downing v. Chicago Transit Authority,
162 Ill. 2d 70, 74 (1994).
Despite this early conclusion that the same claim and same
party requirements have been satisfied, the majority later insists
that "the matter before us involves a separate claim against a
different defendant." (Emphasis added.) Slip op. at 6. The majority
then uses this fact, i.e., the existence of a different defendant,
to ultimately conclude that the first element of res judicata has
not been satisfied. See slip op. at 7 ("where separate defendants
are involved, we hold that *** only those types of involuntary
dismissals that serve the policy behind Supreme Court Rule 273
should be treated as adjudications on the merits"). The majority
supports this novel theory by further suggesting that Supreme Court
Rule 273, which provides that all involuntary dismissals operate as
adjudications on the merits unless the dismissal was for lack of
jurisdiction, improper venue, or failure to join an indispensable
party, should be interpreted differently depending upon the party
which invokes the rule. According to the majority, "[w]here a
different defendant is involved, as in the present case, Rule 273
cannot be applied mechanically ***." (Emphasis added.) Slip op. at
6.
I do not believe that Rule 273 should be interpreted
differently merely because a different defendant is involved. On
the contrary, whether a judgment is or is not an adjudication on
the merits under Rule 273 does not depend upon whether there is an
identity of parties, as in the case of res judicata. Rather, it
depends solely on whether the dismissal at issue falls within one
of the three exceptions specified in the rule. See Towns v. Yellow
Cab Co., 73 Ill. 2d 113, 122 (1978) (holding that involuntary
dismissals for reasons other than those specified by Rule 273 are
adjudications on the merits). Where, as here, none of the three
exceptions apply, the dismissal operates as an adjudication on the
merits. Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996).
In Rein, we held that a dismissal of an action based on the
running of a statute of limitations constituted an adjudication on
the merits by virtue of Rule 273. Rein, 172 Ill. 2d at 335-36. In
that case, plaintiffs filed an eight-count complaint against a
securities dealer and its agents, seeking, inter alia, to rescind
an agreement to purchase certain bonds. The circuit court dismissed
the complaint pursuant to section 2--619(a)(5) of the Code of Civil
Procedure (735 ILCS 5/2--619(a)(5) (West 1994)). The court held
that the action was barred by the applicable statute of
limitations. After an unsuccessful appeal, plaintiffs returned to
the circuit court and attempted to replead the rescission counts.
The court again dismissed the action, this time ruling that the
claims were barred by the doctrine of res judicata. We affirmed
that ruling on appeal, noting that the prior dismissal on statute
of limitations grounds served as an adjudication on the merits.
Justice Miller, writing for a unanimous court, held as follows:
"Supreme Court Rule 273 provides that, `[u]nless the
order of dismissal or a statute of this State otherwise
specifies, an involuntary dismissal of an action, other
than a dismissal for lack of jurisdiction, for improper
venue, or for failure to join an indispensable party,
operates as an adjudication upon the merits.' 134 Ill. 2d
R. 273. As this court has previously stated, Rule 273
applies only to an involuntary dismissal of an action,
such as that which occurs when a motion to dismiss under
section 2--615 or 2--619 of the Code is granted. Downing,
162 Ill. 2d at 74-75. Therefore, under Rule 273, the
trial judge's decision to grant defendant's motion to
dismiss the rescission counts in Rein I based on the
applicable statute of limitations is a final adjudication
on the merits and operates as a final judgment on the
merits for purposes of res judicata. See Downing, 162 Ill. 2d at 74-75." Rein, 172 Ill. 2d at 335-36.
Our holding in Rein is wholly consistent with the plain
language of Rule 273. That rule specifies that only involuntary
dismissals based on (i) lack of jurisdiction, (ii) improper venue,
or (iii) failure to join a necessary party shall not operate as
adjudications on the merits, unless the order of dismissal or a
statute states otherwise. 134 Ill. 2d R. 273. The rule does not
exempt involuntary dismissals based on the running of the statute
of limitations. Such dismissals, therefore, are adjudications on
the merits. Towns v. Yellow Cab Co., 73 Ill. 2d 113, 122 (1978).
That was the conclusion reached by this court in Rein, and that has
been the unanimous conclusion reached by our appellate court.
Greenfield v. Ray Stamm, Inc., 242 Ill. App. 3d 320, 327 (1993)
(holding that dismissal based on statute of limitations constitutes
an adjudication on the merits); Sankey Brothers, Inc. v. Guilliams,
152 Ill. App. 3d 393, 398 (1987); Muscare v. Voltz, 107 Ill. App.
3d 841, 843 (1982). Consequently, there can be no dispute over
whether the type of dismissal involved in this case, i.e., a
dismissal for failure to file a complaint within the applicable
limitations period, constitutes an adjudication on the merits
pursuant to Rule 273.
Notwithstanding the above, the majority asserts that "[u]nlike
[Rein], the matter before us involves a separate claim against a
different defendant." Slip op. at 6. The majority believes that
this distinction is "critical" because "[w]here a different
defendant is involved, as in the present case, Rule 273 cannot be
applied mechanically, because doing so would yield absurd and
unjust results." Slip op. at 6. Thus, from the majority's point of
view, the existence of a different defendant in this case is
relevant because it purportedly affects the way in which we should
interpret Rule 273. I question the validity of the majority's
argument on this point.
Although I agree with the majority that the existence of a
separate claim and a different defendant distinguishes the instant
case from Rein, I do not think that this distinction is relevant in
terms of how we should construe Rule 273. In my view, this
distinction simply has nothing to do with that rule or its
application. Rather, the existence of a separate claim and a
different defendant is relevant in determining whether the final
two elements of res judicata have been satisfied. After all, it is
the doctrine of res judicata, and not Rule 273, which speaks in
terms of separate claims and different defendants. Indeed, as noted
above, three requirements must be satisfied before courts will
apply the doctrine of res judicata: there must be a final judgment
on the merits, an identity of causes of actions, and an identity of
parties or their privies. People ex rel. Burris v. Progressive Land
Developers, Inc., 151 Ill. 2d 285, 294 (1992). In contrast, the
applicability of Rule 273 does not turn on whether separate claims
or different parties exist. A review of the plain language of that
rule reveals that the sole concern of Rule 273 is the determination
of whether an order of dismissal will be treated as an adjudication
on the merits. Nothing in the language of the rule supports the
notion that the existence of different defendants should result in
a different interpretation. Thus, there is no basis for the
majority's contention that our analysis of Rule 273 should vary, or
that the rule should be less than "mechanically" applied, simply
because a separate claim or a different defendant is involved.
Accordingly, to the extent that my colleagues view Rein as
factually distinguishable from the instant case, I agree. I do not,
however, believe that Rein is distinguishable in terms of
construing Rule 273, as the majority erroneously posits. Unlike the
majority, I think that Rein is distinguishable only in the context
of the doctrine of res judicata. In Rein, we barred any further
litigation between the parties because all three elements of res
judicata were satisfied. In this case, not all of the elements of
res judicata are present. As the majority repeatedly points out,
the case at bar involves a separate claim and a different
defendant; therefore, the doctrine of res judicata does not apply.
B. Inapposite Federal Precedent
Because of its insistence on deciding this case in terms of
Rule 273 rather than on the basis of the final two elements of res
judicata, the majority is forced to continue its analysis by
relying on inapposite case law in an attempt to circumvent the
plain language of Rule 273. Noting that our own rule shares a
common heritage with Federal Rule of Civil Procedure 41(b), the
majority cites to the United State's Supreme Court's decision in
Costello v. United States, 365 U.S. 265, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961). Costello, however, did not involve a dismissal of an
action based on the running of a statute of limitations. Instead,
the Court in Costello merely held that a dismissal of a complaint
in a denaturalization proceeding for the failure to file an
affidavit of good cause did not constitute an adjudication on the
merits under Rule 41(b). In reaching that conclusion, the Court
specifically noted that such dismissals were equivalent to
dismissals for "lack of jurisdiction." Costello, 365 U.S. at 285,
5 L. Ed. 2d at 564, 81 S. Ct. at 544. The Supreme Court further
observed that dismissals for lack of jurisdiction were expressly
exempt from the effect of Rule 41(b), which, like our Rule 273,
provides in pertinent part: " `Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision
and any dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction or for improper venue, operates
as an adjudication upon the merits.' " (Emphasis added.) Costello,
365 U.S. at 284, 5 L. Ed. 2d at 564, 81 S. Ct. at 544, quoting Fed.
R. Civ. P. 41(b). Consequently, the Supreme Court had no difficulty
in finding that the dismissal of a complaint for failure to file
the requisite affidavit, which it likened to a dismissal for lack
of jurisdiction, was not an adjudication on the merits.
I do not find Costello persuasive in resolving the precise
issue presented in the case at bar. Indeed, the opinion in Costello
contains not one reference to statutes of limitations, dismissals
obtained through them, or their effect under Rule 41(b). Yet
Costello is the sole federal case cited by the majority, and it is
the majority which believes that federal case law, rather than
state law precedent, is controlling. Even if federal precedent were
controlling, my research reveals that the federal judiciary has
uniformly held that an involuntary dismissal obtained on statute of
limitations grounds constitutes an adjudication on the merits under
Rule 41(b). See Murphy v. Klein Tools, Inc., 935 F.2d 1127 (10th
Cir. 1991) (dismissal on limitations grounds constitutes an
adjudication on the merits) (citing, inter alia, Steve D. Thompson
Trucking, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044 (5th Cir.
1989), Rose v. Town of Harwich, 778 F.2d 77 (1st Cir. 1985), and
Johnson v. Burnley, 887 F.2d 471 (4th Cir. 1989)); see also Schoup
v. Bell & Howell Co., 872 F.2d 1178 (4th Cir. 1989) (citing Nilsen
v. City of Moss Point, 701 F.2d 556 (5th Cir. 1983), PRC Harris,
Inc. v. Boeing Co., 700 F.2d 894 (2d Cir. 1983), and Nathan v.
Rowan, 651 F.2d 1223 (6th Cir. 1981)). In fact, the very analysis
utilized by today's majority was rejected by the Fourth Circuit
Court of Appeals in Schoup v. Bell & Howell Co., 872 F.2d 1178 (4th
Cir. 1989), where plaintiffs tried unsuccessfully to apply the
Costello rationale to the statute of limitations question.
In sum, I do not agree with the majority that the proper
resolution of the res judicata issue presented in this case turns
upon the meaning of Rule 273. In my view, it is not the first
element of res judicata (adjudications on the merits) which is at
issue here, but rather the final two elements (identity of claims
and parties). But even if I did agree with the majority in this
respect, I would not be swayed by their citation to federal case
law. For these reasons, I do not place any credence on the
majority's reliance on Costello.
II
At the outset, I pointed out the internal inconsistency in the
majority's analysis of the issue presented for our review. On the
one hand, the majority holds that the final two elements of res
judicata have been satisfied because (i) plaintiff is suing for the
same injuries arising out of the same accident, and (ii) A&B
Freight and its employee are considered to be " `one and the same'
defendant." Slip op. at 3. On the other hand, the majority spends
the remainder of its opinion arguing that this case actually
involves a separate claim against a different defendant. I would
now like to offer an explanation as why I think that the majority,
perhaps unwittingly, falls victim to its own analysis, and why my
approach to resolving the res judicata issue merits future
consideration by this court.
The record in the instant case reveals that plaintiff filed a
timely complaint against A&B Freight on March 8, 1994. The
complaint alleged that plaintiff suffered injuries as a result of
certain negligent acts committed by one of A&B Freight's employees.
Plaintiff later filed an amended complaint in which he attempted to
add the employee as a party defendant. Because this second
complaint was not filed within the applicable limitations period,
the employee moved to dismiss the complaint pursuant to section 2--
619(a)(5) of the Code of Civil Procedure. The circuit court granted
the motion to dismiss. Shortly thereafter, A&B Freight also moved
to dismiss plaintiff's complaint. A&B Freight argued that it could
no longer be liable under the theory of respondeat superior since
its employee had been dismissed from the case. In support of this
argument, A&B Freight relied upon what is now referred to as the
Towns doctrine, named after the case in which it finds its most
prominent expression. Towns v. Yellow Cab Co., 73 Ill. 2d 113
(1978). This doctrine may be summarized as follows:
"When an action is brought against a master based on the
alleged negligent acts of his servant, and no independent
wrong is charged on behalf of the master, his liability
is entirely derivative, being founded upon the doctrine
of respondeat superior. In this regard, it has been said
that the liability of the master and servant for the acts
of the servant is deemed that of one tortfeasor and is a
consolidated or unified one. *** A judgment, therefore,
adjudicating the master not liable, where a judgment to
the contrary could have only resulted from a finding that
the servant committed an actionable wrong against the
plaintiff, is a judgment in legal effect that the servant
is not liable." Towns, 73 Ill. 2d at 123-24.
Relying on this doctrine, the circuit court granted A&B
Freight's motion to dismiss, ruling that the order dismissing the
employee barred any further action against A&B Freight under the
principles of res judicata. The appellate court affirmed, finding
that all of the elements of res judicata had been met. 276 Ill.
App. 3d 985. On appeal before this court, A&B Freight once again
invokes the Towns doctrine. Unfortunately, the majority summarily
accepts A&B Freight's argument without fully considering the
ramifications of that decision. As a result, the majority is
compelled to hold that A&B Freight and its employee are deemed
" `one and the same' defendant" (slip op. at 3) despite the fact
that the majority later realizes that this case actually involves
different defendants. See, e.g., slip op. at 6-7.
In my view, however, the Towns doctrine does not apply to the
facts of this case. In Towns, this court recognized the general
principle that a prior judgment for an employee will ordinarily
terminate the employer's liability due to the fact that the
latter's liability is entirely derivative. Towns, 73 Ill. 2d at
123-25. In other words, if a trier of fact determines that an
employee was not negligent, then the employer cannot be held liable
under the theory of respondeat superior. On the other hand, if the
judgment in favor of the employee is based solely on a defense that
is personal to the employee, such as an expired statute of
limitations, then the employee's actual negligence has never been
determined. Under these circumstances, the employer may still be
found liable under the theory of respondeat superior. See, e.g.,
Restatement (Second) of Judgments 51 (1982) (judgment against
plaintiff based on defense personal to one defendant not given res
judicata effect in subsequent litigation against another defendant
who may be vicariously liable). In such a scenario, the Towns
doctrine would not apply. To hold otherwise would lead to the
unsound result that an employer who was timely sued would be
dismissed from a case simply because its employee was sued after
the statute of limitations had expired. The absurdity of that
scenario stems from the fact that the employee is not even a
necessary party to the employer's litigation. The Nebraska Supreme
Court recently utilized this very analysis when considering the
same issue under principles identical to the those found in Towns.
Kocsis v. Harrison, 249 Neb. 274, 543 N.W.2d 164 (1996).
In Kocsis, plaintiffs brought a medical malpractice action
against a doctor and his employer, the Omaha Primary Care
Associate, P.C. (hereinafter the Clinic). The trial court granted
summary judgment in favor of the doctor, ruling that plaintiff's
complaint was barred by the applicable statute of limitations.
Subsequently, the trial court granted the Clinic's motion for
summary judgment, concluding that under the doctrine of respondeat
superior, the Clinic could no longer be liable because the
plaintiffs' complaint against the doctor was time-barred. In
reversing the trial court, the Supreme Court of Nebraska
acknowledged that "[i]f an employee is not liable, the employer
cannot be liable under the doctrine of respondeat superior."
Kocsis, 249 Neb. at ___, 543 N.W.2d at 169. The court noted,
however, that "it is also well established that a plaintiff is not
required to join the employee when suing the employer under the
doctrine of respondeat superior." Kocsis, 249 Neb. at ___, 543 N.W.2d at 169. The court then stated:
"We hold that when a plaintiff initiates an action
under the theory of respondeat superior against an
employer before the statute of limitations has run as to
the employee, the plaintiff need not sue both the
employer and employee to prevent his action from being
time barred. The controlling statute of limitations
applicable to the employer is that which would apply to
the employee. Therefore, if the action is brought within
the limitations period that applies to the employee's
tortious conduct, the action is not time barred as to the
employer whose liability is solely vicarious." Kocsis,
249 Neb. at ___, 543 N.W.2d at 169.
I find the reasoning in Kocsis persuasive. Therefore, I would
also hold that when a plaintiff files a timely suit against an
employer and later seeks to join its employee as a party defendant,
the plaintiff's timely complaint against the employer should not be
dismissed simply because the employee successfully raises the
statute of limitations in his or her own defense. I would further
hold that the Towns doctrine does not apply in that situation, and
that the second and third elements of res judicata (identity of
claims and parties) have not been satisfied. In this way, this
court would not have to engage in a disingenuous interpretation of
Rule 273 in a contrived attempt to characterize that which is an
adjudication on the merits as not an adjudication on the merits.
For the foregoing reasons, I concur only in the judgment of
the court.
JUSTICES MILLER and FREEMAN join in this special concurrence.
the filing of the opinion to request a rehearing. Also, opinions
are subject to modification, correction or withdrawal at anytime
prior to issuance of the mandate by the Clerk of the Court.
Therefore, because the following slip opinion is being made
available prior to the Court's final action in this matter, it
cannot be considered the final decision of the Court. The
official copy of the following opinion will be published by the
Supreme Court's Reporter of Decisions in the Official Reports
advance sheets following final action by the Court.
Docket No. 80438--Agenda 25--September 1996.
HAROLD S. LEOW, Appellant, v. A&B FREIGHT LINE, INC., et al. (A&B
Freight Line, Inc., Appellee).
Opinion filed February 6, 1997.
JUSTICE HARRISON delivered the opinion of the court:
On March 11, 1992, plaintiff, Harold Leow, suffered injuries
in a loading dock accident. At the time of the accident, plaintiff
was using a forklift to load skids containing manufactured products
onto a semi-trailer truck owned by defendant A&B Freight Line,
Inc., and operated by its employee, defendant Keith Pasch.
Plaintiff alleges that without warning, Pasch drove the semi-
trailer truck away from the loading dock, causing the forklift
which Leow was operating to fall from the loading dock to the
concrete floor below.
On March 8, 1994, Leow filed a single-count complaint naming
A&B Freight Line, Inc., as the sole defendant. The count alleged
that Keith Pasch committed various negligent acts which resulted in
injury to plaintiff. The complaint further alleged that A&B Freight
Line, through its employee, Pasch, was liable under the doctrine of
respondeat superior for injuries suffered by Leow. On September 14,
1994, Leow filed an amended complaint adding a second count against
Pasch. Count I of the amended complaint named A&B Freight Line and
remained identical to the original complaint. Count II, against
Pasch, alleged that his negligent operation of the semi-trailer
truck resulted in permanent injuries to Leow.
Subsequently, Pasch filed a motion to dismiss count II,
pursuant to section 2--619(5) of the Code of Civil Procedure (735
ILCS 5/2--619(5) (West 1994)), claiming that the two-year statute
of limitations had run as to him. The trial court granted Pasch's
motion to dismiss finding that Pasch was not properly named as a
defendant until the amended complaint was filed on September 14,
1994, more than two years after the accident took place. The ruling
was made appealable pursuant to Supreme Court Rule 304(a) (155 Ill.
2d R. 304(a)) on September 28, 1994. Leow did not appeal this
ruling.
On November 1, 1994, A&B Freight Line filed a motion to
dismiss count I of plaintiff's complaint on the grounds that a
dismissal with prejudice of an action against A&B Freight's
employee, Pasch, barred any action against A&B Freight based on the
doctrines of respondeat superior and res judicata. The trial court
granted A&B Freight's motion to dismiss count I on January 31,
1995. The basis for this ruling was that the involuntary dismissal
of count II, against Pasch, acted as a prior adjudication on the
merits and therefore the doctrine of res judicata barred Leow's
claim against A&B Freight.
Leow asked the trial court to reconsider its order of January
31, 1995, dismissing count I of his complaint. In his motion for
reconsideration and other relief, Leow requested that the trial
court amend its first order of September 28, 1994, dismissing count
II by inserting language that the dismissal of Pasch was not an
adjudication on the merits of the action against A&B Freight. The
trial court denied Leow's motion to reconsider.
The appellate court affirmed, with one justice specially
concurring. 276 Ill. App. 3d 985. The court held that the
involuntary dismissal of count II, on statute of limitations
grounds, was a prior adjudication on the merits pursuant to Supreme
Court Rule 273 (134 Ill. 2d R. 273), and therefore the dismissal
acted as res judicata to Leow's claim against A&B Freight. 276 Ill.
App. 3d at 988. We granted Leow's petition for leave to appeal. 155
Ill. 2d R. 315. For the reasons which follow, we reverse.
At issue in this appeal is whether Pasch's involuntary
dismissal, on statute of limitations grounds, operates as an
adjudication on the merits barring Leow's timely respondeat
superior claim against defendant, A&B Freight. We look to whether
a prior judgment is an adjudication on the merits to determine
whether it should be accorded res judicata effect against another
defendant to the action.
The doctrine of res judicata provides that an adjudication on
the merits "rendered by a court of competent jurisdiction is
conclusive as to the rights of the parties and their privies."
People ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 294 (1992). An adjudication on the merits is an
absolute bar to subsequent actions raising the same claims or
demands and involving the same parties or their privies.
Progressive Land, 151 Ill. 2d at 294. Courts have determined that
for res judicata to bar a subsequent action, three criteria must be
met: (1) there must be a final judgment on the merits rendered by
a court of competent jurisdiction; (2) an identity of causes of
action; and (3) an identity of parties or their privies.
Progressive Land, 151 Ill. 2d at 294.
In this case, the only element of res judicata in serious
dispute is the first element concerning whether the granting of the
involuntary dismissal in favor of Pasch constitutes a final
judgment on the merits barring the remaining claim against A&B
Freight. The second element of res judicata is clearly present
since Leow is suing both A&B Freight and Pasch for the same
injuries arising out of the same accident. Furthermore, Leow's
claim against A&B Freight is based on a theory of vicarious
liability and under such a theory the employer and employee are
considered to be " `one and the same' defendant." Downing v.
Chicago Transit Authority, 162 Ill. 2d 70, 74 (1994), quoting Towns
v. Yellow Cab Co., 73 Ill. 2d 113, 125 (1978). Therefore, for res
judicata purposes, A&B Freight is in privity with Pasch and the
third element is present. The only remaining dispute is whether the
first element was established.
Therefore, we need to determine whether the involuntary
dismissal of Pasch, due to the two-year statute of limitations
running, should operate as an adjudication on the merits barring
suit against Pasch's employer. Plaintiff contends that the
involuntary dismissal of Pasch could not be considered an
adjudication on the merits because the actual merits of Leow's
claim were never examined. Plaintiff notes that the only issue the
court resolved when it dismissed Pasch was that he was named a
party to the lawsuit after the statute of limitation had run.
Plaintiff contends that a prior judgment should not be accorded res
judicata effect, against another defendant to the action, unless
the judgment reached the actual merits of the suit. In support,
Leow cites to Downing v. Chicago Transit Authority, 162 Ill. 2d 70
(1994), a recent decision of this court.
In Downing, this court held that a summary judgment order,
entered in favor of a bus driver on statute of limitations grounds,
was not a res judicata bar to a timely respondeat superior suit
against the Chicago Transit Authority (CTA), which employed him. In
Downing, a CTA bus driven by defendant Williams struck plaintiff,
a bicyclist. Plaintiff filed suit against the CTA and its "unknown
employee and agent." As in the case at bar, plaintiff amended his
complaint naming both the employee and employer as defendants after
the two-year statute of limitations had expired. First, the trial
court granted summary judgment in favor of Williams, reasoning that
he was not properly named a defendant until more than two years
after the accident took place. Subsequently, the trial court
granted the CTA's motion for summary judgment and the appellate
court affirmed. The basis for these rulings by the lower courts was
that "the summary judgment in favor of Williams was a prior
adjudication on the merits, and therefore the doctrine of res
judicata barred plaintiff's present claims against the CTA."
Downing, 162 Ill. 2d at 73.
This court reversed. The court determined, as we have here,
that the only element of res judicata in dispute was whether the
judgment releasing the employee from liability was considered an
adjudication on the merits. Downing, 162 Ill. 2d at 74. In
determining whether the summary judgment as to Williams was an
adjudication on the merits, this court stated it "cannot ignore the
basis on which the summary judgment was granted." Downing, 162 Ill. 2d at 77. This court went on to examine the basis for granting
summary judgment in Downing and reasoned that: "When a summary
judgment is granted because the statute of limitations has run, the
merits of the action are never examined." Downing, 162 Ill. 2d at
77. The Downing court held that when the basis for granting summary
judgment bears no relationship to the actual merits of the case,
"it would be inappropriate to apply the doctrine of res judicata to
another party to the action." Downing, 162 Ill. 2d at 77. Finally,
this court concluded that to label a summary judgment order, such
as the one in Downing, an adjudication on the merits "would be the
quintessential act of exalting form over substance." Downing, 162 Ill. 2d at 77.
The Downing decision seems virtually identical to the case at
bar. In both cases, the employers were timely named, but claims
against the employees were not added until after the statute of
limitations had expired. Both employees received either an
involuntary dismissal or summary judgment in their favor based on
their statute of limitation defenses. Subsequently, the employers
remaining in both suits claimed that the release of their
employees, on statute of limitations grounds, operated as
adjudications on the merits barring the claims against them. At
issue in both cases was whether these prior judgments should be
given res judicata effect with respect to the remaining defendants.
As stated, the Downing court concluded that the basis for
granting summary judgment bore no relationship to the actual merits
of the case. Therefore, the court refused to label a summary
judgment order on statute of limitations grounds an adjudication on
the merits. In the present case, if we apply the reasoning from
Downing and look to the basis on which the involuntary dismissal
was granted, we must also conclude that the actual merits of the
action were never examined. In both cases, the only issue the lower
courts decided was whether the employees were timely named as
defendants. As in Downing, the basis for granting the employee's
motion bears no relationship to the actual merits of Leow's case.
Under this reasoning, it would be improper to apply the doctrine of
res judicata to another party to the action.
The only distinction which can be drawn between the two cases
is the type of procedural device used by the defendant employees to
assert their statute of limitations defenses. As stated in Downing,
the driver filed a motion for summary judgment, while in the case
at bar, Pasch filed a section 2--619 motion to dismiss. Defendant
A&B Freight contends that the difference between the procedural
choice of a motion for summary judgment over a motion to dismiss is
critical. Defendant asserts that such a distinction is critical
because pursuant to Illinois Supreme Court Rule 273 (134 Ill. 2d R.
273) an involuntary dismissal of an action is deemed an
adjudication on the merits for purposes of invoking the doctrine of
res judicata. Rule 273 states that "[u]nless the order of dismissal
or a statute of this State otherwise specifies, an involuntary
dismissal of an action, other than a dismissal for lack of
jurisdiction, for improper venue, or for failure to join an
indispensable party, operates as an adjudication upon the merits."
134 Ill. 2d R. 273. Defendant asserts that since the involuntary
dismissal of Pasch did not fall under one of these exceptions
outlined in Rule 273, and the order of dismissal did not specify
otherwise, the judgment in favor of Pasch operated as an
adjudication on the merits.
Defendant argues that Downing supports this interpretation of
Rule 273. The Downing court did recognize a distinction between an
involuntary dismissal and an order granting summary judgment,
stating that Rule 273 only applies to involuntary dismissals such
as when a motion to dismiss under section 2--615 or 2--619 is
granted. Downing, 162 Ill. 2d at 75. Furthermore, the court stated
in dicta that if Rule 273 had applied in Downing, it would compel
the opposite result because certain "involuntary dismissals do
indeed operate as judgments on the merits." Downing, 162 Ill. 2d at
75.
Following Downing, this court applied Rule 273 in Rein v.
David A. Noyes & Co., 172 Ill. 2d 325, 335-36 (1996), to hold that
the dismissal of a claim on statute of limitations grounds operated
as an adjudication on the merits barring plaintiffs from asserting
that claim in a successive action against the same defendants.
Rein, however, is distinguishable. Unlike that case, the matter
before us involves a separate claim against a different defendant.
This distinction is critical. Where a different defendant is
involved, as in the present case, Rule 273 cannot be applied
mechanically, because doing so would yield absurd and unjust
results. If the rule could be invoked here, plaintiff would be
precluded from seeking redress from A&B Freight, the employer,
simply because he made a belated attempt to join Pasch, the
employee. Had he never attempted to join the employee, the action
against A&B Freight would have proceeded normally. Considering that
the employee is not even a necessary party to the litigation
against the employer in cases such as this (see McCottrell v. City
of Chicago, 135 Ill. App. 3d 517, 519 (1985)), dismissal of A&B
Freight based on plaintiff's delay in adding Pasch makes no sense
at all.
To avoid such anomalies, we must look to the purpose and
intent of Rule 273 in determining whether a dismissal against one
defendant based on statute of limitations grounds should be deemed
to be an adjudication on the merits as to a different defendant.
Rule 273 was adopted in 1975 and was modeled after Federal Rule of
Civil Procedure 41(b). 58 Ill. 2d R. 273, Committee Comments.
Therefore, we will examine Rule 41(b) and its history to guide our
interpretation of Rule 273. At common law, a dismissal on grounds
other than the actual merits of the case would not constitute res
judicata in a later case. Madden v. Perry, 264 F.2d 169, 175 (7th
Cir. 1959); Haldeman v. United States, 91 U.S. 584, 585-86, 23 L. Ed. 433, 434 (1876). The Supreme Court has stated that it did not
discern in Rule 41(b) "a purpose to change this common-law
principle with respect to dismissals in which the merits could not
be reached for failure of the plaintiff to satisfy a precondition."
Costello v. United States, 365 U.S. 265, 286, 5 L. Ed. 2d 551, 565,
81 S. Ct. 534, 545 (1961). According to the Supreme Court, the res
judicata effect of Rule 41(b) dismissals was intended to apply to
situations where a defendant had to incur the inconvenience of
preparing to meet the merits of a controversy. Costello, 365 U.S.
at 286, 5 L. Ed. 2d at 565, 81 S. Ct. at 545.
Applying these principles, the Supreme Court, in Costello,
held that the dismissal of a previous complaint in a
denaturalization proceeding, for failure to file an affidavit of
good cause, was not an adjudication on the merits under Rule 41(b).
The Court reasoned that when determining whether dismissals, not
otherwise provided for under the rule, operate as adjudications on
the merits, "it seems reasonable to confine them to those
situations where the policy behind the enumerated grounds is
equally applicable." Costello, 365 U.S. at 286, 5 L. Ed. 2d at 565,
81 S. Ct. at 545. The Court further reasoned that obtaining a
dismissal, due to the government's failure to file an affidavit,
did not put the petitioner to the trouble of preparing a defense
and meeting the merits of the case. Costello, 365 U.S. at 287, 5 L. Ed. 2d at 565, 81 S. Ct. at 545. Therefore, the Supreme Court held
that the policy behind Rule 41(b) would not be furthered by
treating a dismissal for failure to file an affidavit as an
adjudication on the merits. Costello, 365 U.S. at 287, 5 L. Ed. 2d
at 566, 81 S. Ct. at 546.
Accordingly, where separate defendants are involved, we hold
that as with Rule 41(b), only those types of involuntary dismissals
that serve the policy behind Supreme Court Rule 273 should be
treated as adjudications on the merits. Since Rule 273 was modeled
after Federal Rule 41(b), the policy behind the rules is the same.
As with Rule 41(b) dismissals, the res judicata effect of Rule 273
dismissals was also intended to apply to situations where
defendants are put to the inconvenience of preparing to meet the
merits of the case. Rule 273 was designed to protect a defendant
from relitigating the same matter over again after the defendant or
his privy was dismissed in a prior proceeding.
That policy is not served by dismissing A&B Freight from this
case. From our previous analysis, it is apparent that A&B Freight
never had to incur the inconvenience of preparing a defense and
meeting the merits of this controversy. In this case, Pasch, A&B
Freight's agent, was dismissed from this action for the sole reason
that he was not properly named a defendant until after the statute
of limitations had expired. Such an order of dismissal only decides
the merits of Pasch's section 2--619 motion and was not a
determination of the merits of the underlying claim. Since the
merits were never examined, A&B Freight was never put to the
inconvenience of preparing a defense. A&B Freight merely asserted
that Pasch's involuntary dismissal, on grounds not even in
controversy in A&B Freight's suit, acted as res judicata to
plaintiff's claim against A&B Freight. In effect, Pasch's defense
was simply transferred to A&B Freight, and no issues between Leow
and A&B Freight were ever actually decided. We conclude that the
policy behind Rule 273, and its model, Federal Rule 41(b), would
not be furthered by treating an involuntary dismissal on statute
of limitations grounds as an adjudication on the merits under these
circumstances.
We further find that the fact that the employee in this case
utilized a section 2--619 motion to dismiss, rather than a motion
for summary judgment, does not warrant a different result from that
reached in Downing. The policy behind Rule 273 and its federal
counterpart supports a decision consistent with the reasoning in
Downing. To adhere to the policy behind Rule 273, an involuntary
dismissal as to the employee, like a summary judgment, should not
be automatically labeled a judgment on the merits with respect to
the employer. But rather, as directed in Downing, the basis on
which the judgment was granted should be examined to determine
whether the merits of the case were ever considered.
Moreover, on a section 2--619 motion to dismiss, a trial court
has even less of an opportunity to examine the real merits of a
plaintiff's case than on a motion for summary judgment. On motions
for summary judgment, trial courts normally examine pleadings,
depositions, admissions on file, and affidavits to determine
whether there is any general issue of material fact to be tried by
a jury. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511,
517-18 (1993). Section 2--619 motions to dismiss, on the other
hand, provide a mechanism for courts to dispose of issues of law
based on certain defects and defenses, outlined in the statute. 735
ILCS 5/2--619 (West 1994). In Downing, the court already determined
that an order granting summary judgment to an agent, on statute of
limitations grounds, was not a bar to the action against the
principal, the reason being that when summary judgment is granted
for failure to meet the statute of limitations, the actual merits
of the suit are never examined. Downing, 162 Ill. 2d at 77. The
standard should not be higher for section 2--619 dismissals, where
a court has even less chance to look at the merits of the
underlying cause of action. We conclude that there is no reason to
treat a section 2--619 motion to dismiss differently than a motion
for summary judgment when both motions were granted on the same
grounds.
In this case, as in Downing, Pasch was dismissed from the suit
for reasons bearing no relationship to the actual merits. We
conclude that the involuntary dismissal of Pasch was not an
adjudication on the merits as to A&B Freight. The first element of
res judicata was not present in this case; therefore, it was error
to grant A&B Freight's motion to dismiss. As in Downing, in the
present case, plaintiff's action against the principal was not
barred by the doctrine of res judicata. Accordingly, we reverse the
judgments of the circuit and appellate courts and remand to the
circuit court for further proceedings.
Appellate court reversed;
circuit court reversed;
cause remanded.
JUSTICE McMORROW, specially concurring:
I agree that plaintiff's complaint against A&B Freight should
not be dismissed under the doctrine of res judicata, but not for
the reasons offered by the majority. In my view, the majority's
analysis is flawed and likely to cause unnecessary confusion in
future cases. I reach this conclusion for several reasons, and
write separately to address each in turn.
I
A. Flawed Analysis
The dispositive issue in this appeal is whether an employer
may assert the involuntary dismissal of its employee, obtained on
statute of limitations grounds, as a basis for its own dismissal by
virtue of the doctrine of res judicata. That doctrine provides that
a final judgment on the merits bars a subsequent action between the
same parties or their privies on the same cause of action. People
ex rel. Burris v. Progressive Land Developers, Inc., 151 Ill. 2d 285, 294 (1992). Three requirements must be met for res judicata to
apply: (1) there must be a final judgment on the merits rendered by
a court of competent jurisdiction; (2) there must be an identity of
causes of action (or defenses); and (3) there must be an identity
of parties or their privies. Progressive Land, 151 Ill. 2d at 294.
In this case, the majority begins its analysis by noting that
"the only element of res judicata in serious dispute is the first
element concerning whether the granting of the involuntary
dismissal in favor of [the employee] constitutes a final judgment
on the merits barring the remaining claim against A&B Freight."
Slip op. at 3. As to the final two elements, the majority
concludes:
" `The second element of res judicata is clearly present
since [plaintiff] is suing both A&B Freight and [its
employee] for the same injuries arising out of the same
accident. Furthermore, [plaintiff's] claim against A&B
Freight is based on a theory of vicarious liability and
under such a theory the employer and employee are
considered to be "one and the same" defendant.' " Slip
op. at 3, quoting Downing v. Chicago Transit Authority,
162 Ill. 2d 70, 74 (1994).
Despite this early conclusion that the same claim and same
party requirements have been satisfied, the majority later insists
that "the matter before us involves a separate claim against a
different defendant." (Emphasis added.) Slip op. at 6. The majority
then uses this fact, i.e., the existence of a different defendant,
to ultimately conclude that the first element of res judicata has
not been satisfied. See slip op. at 7 ("where separate defendants
are involved, we hold that *** only those types of involuntary
dismissals that serve the policy behind Supreme Court Rule 273
should be treated as adjudications on the merits"). The majority
supports this novel theory by further suggesting that Supreme Court
Rule 273, which provides that all involuntary dismissals operate as
adjudications on the merits unless the dismissal was for lack of
jurisdiction, improper venue, or failure to join an indispensable
party, should be interpreted differently depending upon the party
which invokes the rule. According to the majority, "[w]here a
different defendant is involved, as in the present case, Rule 273
cannot be applied mechanically ***." (Emphasis added.) Slip op. at
6.
I do not believe that Rule 273 should be interpreted
differently merely because a different defendant is involved. On
the contrary, whether a judgment is or is not an adjudication on
the merits under Rule 273 does not depend upon whether there is an
identity of parties, as in the case of res judicata. Rather, it
depends solely on whether the dismissal at issue falls within one
of the three exceptions specified in the rule. See Towns v. Yellow
Cab Co., 73 Ill. 2d 113, 122 (1978) (holding that involuntary
dismissals for reasons other than those specified by Rule 273 are
adjudications on the merits). Where, as here, none of the three
exceptions apply, the dismissal operates as an adjudication on the
merits. Rein v. David A. Noyes & Co., 172 Ill. 2d 325 (1996).
In Rein, we held that a dismissal of an action based on the
running of a statute of limitations constituted an adjudication on
the merits by virtue of Rule 273. Rein, 172 Ill. 2d at 335-36. In
that case, plaintiffs filed an eight-count complaint against a
securities dealer and its agents, seeking, inter alia, to rescind
an agreement to purchase certain bonds. The circuit court dismissed
the complaint pursuant to section 2--619(a)(5) of the Code of Civil
Procedure (735 ILCS 5/2--619(a)(5) (West 1994)). The court held
that the action was barred by the applicable statute of
limitations. After an unsuccessful appeal, plaintiffs returned to
the circuit court and attempted to replead the rescission counts.
The court again dismissed the action, this time ruling that the
claims were barred by the doctrine of res judicata. We affirmed
that ruling on appeal, noting that the prior dismissal on statute
of limitations grounds served as an adjudication on the merits.
Justice Miller, writing for a unanimous court, held as follows:
"Supreme Court Rule 273 provides that, `[u]nless the
order of dismissal or a statute of this State otherwise
specifies, an involuntary dismissal of an action, other
than a dismissal for lack of jurisdiction, for improper
venue, or for failure to join an indispensable party,
operates as an adjudication upon the merits.' 134 Ill. 2d
R. 273. As this court has previously stated, Rule 273
applies only to an involuntary dismissal of an action,
such as that which occurs when a motion to dismiss under
section 2--615 or 2--619 of the Code is granted. Downing,
162 Ill. 2d at 74-75. Therefore, under Rule 273, the
trial judge's decision to grant defendant's motion to
dismiss the rescission counts in Rein I based on the
applicable statute of limitations is a final adjudication
on the merits and operates as a final judgment on the
merits for purposes of res judicata. See Downing, 162 Ill. 2d at 74-75." Rein, 172 Ill. 2d at 335-36.
Our holding in Rein is wholly consistent with the plain
language of Rule 273. That rule specifies that only involuntary
dismissals based on (i) lack of jurisdiction, (ii) improper venue,
or (iii) failure to join a necessary party shall not operate as
adjudications on the merits, unless the order of dismissal or a
statute states otherwise. 134 Ill. 2d R. 273. The rule does not
exempt involuntary dismissals based on the running of the statute
of limitations. Such dismissals, therefore, are adjudications on
the merits. Towns v. Yellow Cab Co., 73 Ill. 2d 113, 122 (1978).
That was the conclusion reached by this court in Rein, and that has
been the unanimous conclusion reached by our appellate court.
Greenfield v. Ray Stamm, Inc., 242 Ill. App. 3d 320, 327 (1993)
(holding that dismissal based on statute of limitations constitutes
an adjudication on the merits); Sankey Brothers, Inc. v. Guilliams,
152 Ill. App. 3d 393, 398 (1987); Muscare v. Voltz, 107 Ill. App.
3d 841, 843 (1982). Consequently, there can be no dispute over
whether the type of dismissal involved in this case, i.e., a
dismissal for failure to file a complaint within the applicable
limitations period, constitutes an adjudication on the merits
pursuant to Rule 273.
Notwithstanding the above, the majority asserts that "[u]nlike
[Rein], the matter before us involves a separate claim against a
different defendant." Slip op. at 6. The majority believes that
this distinction is "critical" because "[w]here a different
defendant is involved, as in the present case, Rule 273 cannot be
applied mechanically, because doing so would yield absurd and
unjust results." Slip op. at 6. Thus, from the majority's point of
view, the existence of a different defendant in this case is
relevant because it purportedly affects the way in which we should
interpret Rule 273. I question the validity of the majority's
argument on this point.
Although I agree with the majority that the existence of a
separate claim and a different defendant distinguishes the instant
case from Rein, I do not think that this distinction is relevant in
terms of how we should construe Rule 273. In my view, this
distinction simply has nothing to do with that rule or its
application. Rather, the existence of a separate claim and a
different defendant is relevant in determining whether the final
two elements of res judicata have been satisfied. After all, it is
the doctrine of res judicata, and not Rule 273, which speaks in
terms of separate claims and different defendants. Indeed, as noted
above, three requirements must be satisfied before courts will
apply the doctrine of res judicata: there must be a final judgment
on the merits, an identity of causes of actions, and an identity of
parties or their privies. People ex rel. Burris v. Progressive Land
Developers, Inc., 151 Ill. 2d 285, 294 (1992). In contrast, the
applicability of Rule 273 does not turn on whether separate claims
or different parties exist. A review of the plain language of that
rule reveals that the sole concern of Rule 273 is the determination
of whether an order of dismissal will be treated as an adjudication
on the merits. Nothing in the language of the rule supports the
notion that the existence of different defendants should result in
a different interpretation. Thus, there is no basis for the
majority's contention that our analysis of Rule 273 should vary, or
that the rule should be less than "mechanically" applied, simply
because a separate claim or a different defendant is involved.
Accordingly, to the extent that my colleagues view Rein as
factually distinguishable from the instant case, I agree. I do not,
however, believe that Rein is distinguishable in terms of
construing Rule 273, as the majority erroneously posits. Unlike the
majority, I think that Rein is distinguishable only in the context
of the doctrine of res judicata. In Rein, we barred any further
litigation between the parties because all three elements of res
judicata were satisfied. In this case, not all of the elements of
res judicata are present. As the majority repeatedly points out,
the case at bar involves a separate claim and a different
defendant; therefore, the doctrine of res judicata does not apply.
B. Inapposite Federal Precedent
Because of its insistence on deciding this case in terms of
Rule 273 rather than on the basis of the final two elements of res
judicata, the majority is forced to continue its analysis by
relying on inapposite case law in an attempt to circumvent the
plain language of Rule 273. Noting that our own rule shares a
common heritage with Federal Rule of Civil Procedure 41(b), the
majority cites to the United State's Supreme Court's decision in
Costello v. United States, 365 U.S. 265, 5 L. Ed. 2d 551, 81 S. Ct. 534 (1961). Costello, however, did not involve a dismissal of an
action based on the running of a statute of limitations. Instead,
the Court in Costello merely held that a dismissal of a complaint
in a denaturalization proceeding for the failure to file an
affidavit of good cause did not constitute an adjudication on the
merits under Rule 41(b). In reaching that conclusion, the Court
specifically noted that such dismissals were equivalent to
dismissals for "lack of jurisdiction." Costello, 365 U.S. at 285,
5 L. Ed. 2d at 564, 81 S. Ct. at 544. The Supreme Court further
observed that dismissals for lack of jurisdiction were expressly
exempt from the effect of Rule 41(b), which, like our Rule 273,
provides in pertinent part: " `Unless the court in its order for
dismissal otherwise specifies, a dismissal under this subdivision
and any dismissal not provided for in this rule, other than a
dismissal for lack of jurisdiction or for improper venue, operates
as an adjudication upon the merits.' " (Emphasis added.) Costello,
365 U.S. at 284, 5 L. Ed. 2d at 564, 81 S. Ct. at 544, quoting Fed.
R. Civ. P. 41(b). Consequently, the Supreme Court had no difficulty
in finding that the dismissal of a complaint for failure to file
the requisite affidavit, which it likened to a dismissal for lack
of jurisdiction, was not an adjudication on the merits.
I do not find Costello persuasive in resolving the precise
issue presented in the case at bar. Indeed, the opinion in Costello
contains not one reference to statutes of limitations, dismissals
obtained through them, or their effect under Rule 41(b). Yet
Costello is the sole federal case cited by the majority, and it is
the majority which believes that federal case law, rather than
state law precedent, is controlling. Even if federal precedent were
controlling, my research reveals that the federal judiciary has
uniformly held that an involuntary dismissal obtained on statute of
limitations grounds constitutes an adjudication on the merits under
Rule 41(b). See Murphy v. Klein Tools, Inc., 935 F.2d 1127 (10th
Cir. 1991) (dismissal on limitations grounds constitutes an
adjudication on the merits) (citing, inter alia, Steve D. Thompson
Trucking, Inc. v. Dorsey Trailers, Inc., 870 F.2d 1044 (5th Cir.
1989), Rose v. Town of Harwich, 778 F.2d 77 (1st Cir. 1985), and
Johnson v. Burnley, 887 F.2d 471 (4th Cir. 1989)); see also Schoup
v. Bell & Howell Co., 872 F.2d 1178 (4th Cir. 1989) (citing Nilsen
v. City of Moss Point, 701 F.2d 556 (5th Cir. 1983), PRC Harris,
Inc. v. Boeing Co., 700 F.2d 894 (2d Cir. 1983), and Nathan v.
Rowan, 651 F.2d 1223 (6th Cir. 1981)). In fact, the very analysis
utilized by today's majority was rejected by the Fourth Circuit
Court of Appeals in Schoup v. Bell & Howell Co., 872 F.2d 1178 (4th
Cir. 1989), where plaintiffs tried unsuccessfully to apply the
Costello rationale to the statute of limitations question.
In sum, I do not agree with the majority that the proper
resolution of the res judicata issue presented in this case turns
upon the meaning of Rule 273. In my view, it is not the first
element of res judicata (adjudications on the merits) which is at
issue here, but rather the final two elements (identity of claims
and parties). But even if I did agree with the majority in this
respect, I would not be swayed by their citation to federal case
law. For these reasons, I do not place any credence on the
majority's reliance on Costello.
II
At the outset, I pointed out the internal inconsistency in the
majority's analysis of the issue presented for our review. On the
one hand, the majority holds that the final two elements of res
judicata have been satisfied because (i) plaintiff is suing for the
same injuries arising out of the same accident, and (ii) A&B
Freight and its employee are considered to be " `one and the same'
defendant." Slip op. at 3. On the other hand, the majority spends
the remainder of its opinion arguing that this case actually
involves a separate claim against a different defendant. I would
now like to offer an explanation as why I think that the majority,
perhaps unwittingly, falls victim to its own analysis, and why my
approach to resolving the res judicata issue merits future
consideration by this court.
The record in the instant case reveals that plaintiff filed a
timely complaint against A&B Freight on March 8, 1994. The
complaint alleged that plaintiff suffered injuries as a result of
certain negligent acts committed by one of A&B Freight's employees.
Plaintiff later filed an amended complaint in which he attempted to
add the employee as a party defendant. Because this second
complaint was not filed within the applicable limitations period,
the employee moved to dismiss the complaint pursuant to section 2--
619(a)(5) of the Code of Civil Procedure. The circuit court granted
the motion to dismiss. Shortly thereafter, A&B Freight also moved
to dismiss plaintiff's complaint. A&B Freight argued that it could
no longer be liable under the theory of respondeat superior since
its employee had been dismissed from the case. In support of this
argument, A&B Freight relied upon what is now referred to as the
Towns doctrine, named after the case in which it finds its most
prominent expression. Towns v. Yellow Cab Co., 73 Ill. 2d 113
(1978). This doctrine may be summarized as follows:
"When an action is brought against a master based on the
alleged negligent acts of his servant, and no independent
wrong is charged on behalf of the master, his liability
is entirely derivative, being founded upon the doctrine
of respondeat superior. In this regard, it has been said
that the liability of the master and servant for the acts
of the servant is deemed that of one tortfeasor and is a
consolidated or unified one. *** A judgment, therefore,
adjudicating the master not liable, where a judgment to
the contrary could have only resulted from a finding that
the servant committed an actionable wrong against the
plaintiff, is a judgment in legal effect that the servant
is not liable." Towns, 73 Ill. 2d at 123-24.
Relying on this doctrine, the circuit court granted A&B
Freight's motion to dismiss, ruling that the order dismissing the
employee barred any further action against A&B Freight under the
principles of res judicata. The appellate court affirmed, finding
that all of the elements of res judicata had been met. 276 Ill.
App. 3d 985. On appeal before this court, A&B Freight once again
invokes the Towns doctrine. Unfortunately, the majority summarily
accepts A&B Freight's argument without fully considering the
ramifications of that decision. As a result, the majority is
compelled to hold that A&B Freight and its employee are deemed
" `one and the same' defendant" (slip op. at 3) despite the fact
that the majority later realizes that this case actually involves
different defendants. See, e.g., slip op. at 6-7.
In my view, however, the Towns doctrine does not apply to the
facts of this case. In Towns, this court recognized the general
principle that a prior judgment for an employee will ordinarily
terminate the employer's liability due to the fact that the
latter's liability is entirely derivative. Towns, 73 Ill. 2d at
123-25. In other words, if a trier of fact determines that an
employee was not negligent, then the employer cannot be held liable
under the theory of respondeat superior. On the other hand, if the
judgment in favor of the employee is based solely on a defense that
is personal to the employee, such as an expired statute of
limitations, then the employee's actual negligence has never been
determined. Under these circumstances, the employer may still be
found liable under the theory of respondeat superior. See, e.g.,
Restatement (Second) of Judgments 51 (1982) (judgment against
plaintiff based on defense personal to one defendant not given res
judicata effect in subsequent litigation against another defendant
who may be vicariously liable). In such a scenario, the Towns
doctrine would not apply. To hold otherwise would lead to the
unsound result that an employer who was timely sued would be
dismissed from a case simply because its employee was sued after
the statute of limitations had expired. The absurdity of that
scenario stems from the fact that the employee is not even a
necessary party to the employer's litigation. The Nebraska Supreme
Court recently utilized this very analysis when considering the
same issue under principles identical to the those found in Towns.
Kocsis v. Harrison, 249 Neb. 274, 543 N.W.2d 164 (1996).
In Kocsis, plaintiffs brought a medical malpractice action
against a doctor and his employer, the Omaha Primary Care
Associate, P.C. (hereinafter the Clinic). The trial court granted
summary judgment in favor of the doctor, ruling that plaintiff's
complaint was barred by the applicable statute of limitations.
Subsequently, the trial court granted the Clinic's motion for
summary judgment, concluding that under the doctrine of respondeat
superior, the Clinic could no longer be liable because the
plaintiffs' complaint against the doctor was time-barred. In
reversing the trial court, the Supreme Court of Nebraska
acknowledged that "[i]f an employee is not liable, the employer
cannot be liable under the doctrine of respondeat superior."
Kocsis, 249 Neb. at ___, 543 N.W.2d at 169. The court noted,
however, that "it is also well established that a plaintiff is not
required to join the employee when suing the employer under the
doctrine of respondeat superior." Kocsis, 249 Neb. at ___, 543 N.W.2d at 169. The court then stated:
"We hold that when a plaintiff initiates an action
under the theory of respondeat superior against an
employer before the statute of limitations has run as to
the employee, the plaintiff need not sue both the
employer and employee to prevent his action from being
time barred. The controlling statute of limitations
applicable to the employer is that which would apply to
the employee. Therefore, if the action is brought within
the limitations period that applies to the employee's
tortious conduct, the action is not time barred as to the
employer whose liability is solely vicarious." Kocsis,
249 Neb. at ___, 543 N.W.2d at 169.
I find the reasoning in Kocsis persuasive. Therefore, I would
also hold that when a plaintiff files a timely suit against an
employer and later seeks to join its employee as a party defendant,
the plaintiff's timely complaint against the employer should not be
dismissed simply because the employee successfully raises the
statute of limitations in his or her own defense. I would further
hold that the Towns doctrine does not apply in that situation, and
that the second and third elements of res judicata (identity of
claims and parties) have not been satisfied. In this way, this
court would not have to engage in a disingenuous interpretation of
Rule 273 in a contrived attempt to characterize that which is an
adjudication on the merits as not an adjudication on the merits.
For the foregoing reasons, I concur only in the judgment of
the court.
JUSTICES MILLER and FREEMAN join in this special concurrence.
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