Rourke v. Amchem
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In the Circu it Court for B altimore C ity Case No. 24-C-02-001240/CN IN THE COURT OF APPEALS OF MARYLAND No. 130 September Term, 2003 ______________________________________ EDNA O. ROURKE, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF FRANKLIN ADAMS, ET AL. v. AMCHEM PRODUC TS, INC., ET AL. ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Wilner, J. Bell, C.J., and Cathell, J., Dissent ______________________________________ Filed: December 14, 2004 -1- This case arises from a con solidated settlement of severa l hundred asbestos-related personal injury and wrongful death actions. The issue before us is whether the dispute that emanated from the settlement agreement and that forms the basis of this lawsuit is subject to arbitration, and that, in turn, depends in part on whether we a re required to give full fa ith and credit or common law collateral estoppel effect to a judgment of the Supreme Court of Virginia involving none of the plain tiffs and on ly three of the thirteen defendants in this case. The Circuit Cou rt for Baltimore City concluded that it would not apply the doctrine of offensive non-mu tual collateral es toppel base d on that judgment, and that, under Maryland and Federal law, the dispute was subject to arbitration. Upon those conclusions, the court granted a motion to compel arbitration. The Court of Special Appeals, addressing as well the issue of fu ll faith and credit, af firmed that rulin g, Rourke v. Amchem, 153 Md. App. 91, 835 A.2d 193 (2003), and so shall we. BACKGROUND In September, 1988, a number of asbestos manufacturers that had been named as defenda nts in multiple lawsuits pending in several States entered into a Producer Agreement Concerning Center For Claims Resolution. Among other things, that agreement created a non-prof it entity known as the Center for Claims Resolution (CCR), to act as a claims agent with respect to all asbestos-related claims made against the participating members. Each participating mem ber d esignate d CC R as its so le ag ent to adm inister, ev alua te, se ttle, p ay, and defend such claims. The agreement required CCR to handle each claim on b ehalf of a ll members and pre cluded it from s ettling a c laim on behalf of few er than a ll mem bers. We were apprized at oral argument, apparently as a result of that requirement, that, whenever CCR settled a claim, it obtained a release of all participating members, even those who had not been named as defendants in the particular case. Attachment A to the Producer Agreement ap portioned a mong th e memb ers their respective shares of three categories of expenses liability payments (sums paid in settlement of asbestos-related claims or in satisfaction of judgments on such claims), allocated expenses, and unallocated expenses (overhead, administrative, and operating expenses of CCR). The Attachment anticipated the prospect of new members joining CCR and current members terminating their membership, and it made provision for reducing apportioned shares when new members were admitted and increasing shares when members withdrew.1 Article III of the Producer Agreement permitted termination of membership in CCR only by (1) voluntary termination upon 60 days notice and a determination by the CC R Board of Directors that the withdrawing member had paid or made provision for the paym ent of all amounts due from it under the Agreemen t; (2) filing for bankruptcy protection or other 1 Paragraph F of Attachment A provided, in relevant part: In the event the Producer becomes a signatory, the corresponding shares of the other Participating Producers shall be reduced appropriately to make room for the shares of the new Participating Producer. In the event that a Participating Producer shall withdraw from membe rship in the C enter pursu ant to Sectio n IV of th e Agreem ent or have its membership terminated pursuant to Paragraph 3 of Section III, the corresponding shares of the other Participating Producers shall be increased appropriately to pick up the shares of the w ithdraw ing or te rminatin g Partic ipating P roduce r. -3- protection from creditors under Federal or State law; or (3) action of the Board of D irectors if a member was involuntarily placed in bankruptcy or was determined to be insolvent or if the Board found that the member had materially breached the Agreement. Article III further provided, however, that, notwithstanding termination of membership, the terminated member shall continue to have and to honor all of the obligations incurred by it hereunder or on its behalf as a member prior to the effective date of its membership termination. . . . In April, 2 000, two law firms that represented 882 plaintiffs with asbestos-related personal injury or wron gful death claims pen ding in M aryland courts entered into a global settlement of those claims with CCR which, at the time, had 16 members. 2 There were five categories of plain tiffs th ose w ith meso theliom a (5), those with lung cancer (29), those with other cancer (20), those with non-malignant I diseases (essentially asbestosis or significant bilateral pleural thickening, 359), and those with less significant non-malignant II conditions (469) and a settlement amount was agreed upon with respect to each plaintiff in each category. In ord er to receive th e money, eac h individua l plaintiff wo uld have to establish that he/she met the criteria for paym ent, agree to th e settlement a mount, an d execute a release. Because of those conditions and because of the prospect of new plaintiffs being added as the firms acquired additional clients, the agg regate amount actually to be paid was 2 The actu al pa rties to the agr eem ent, o ther than CCR, w ere W illiam F. M ulroney, David M. Layton, and Joseph F. Rice, individually and as agents for their respective law firms, Ashcraft & Gerel and Ness, Motley, Loadholt, Richardson & Poole, as agents for the plaintiffs presently represented or that may in the future be represented by those firms in asbestos personal injury litigation in Maryland. -4- not entirely certain, but, based o n counse l s representa tions at the time , it was estima ted to be $10,089,400. The agre ement calle d for CC R to mak e aggrega te payments to plaintiffs counsel, subject to change a s specified a fter the qua lification revie w, in three installments: $4,500,000 on July 1, 2000; $4,000,000 on June 1, 2001; and any balance on September 1, 2002. The procedure for payment of claims was set forth in Appendix C to the Settlement Agreem ent. That required, among other things, that the settling plaintiff sign a full release, in the form and subject to the conditions specified in the Appendix, of all CCR members, prior to payme nt. Three provisions of the Settlem ent Agre ement ha ve particular relevance to this case. Paragraph 7 made clear that the liability of the CCR member companies for payment of the settlement amounts was several and not joint, and it gave Plaintiffs Counsel certain options if one or more of the member companies failed to pay its apportioned share. In that regard, ¶ 7provid ed, in relevan t part: Payments to Plaintiff Counsel by the CCR under Paragraph 5 of this Settlement Agreement shall be funded by the CCR member companies in accordance with the terms of the Producer Agreement Concerning Center For Claims Resolution (as amended, effective February 1, 1994 ) and each CCR member company shall be liable under this S ettlement A greeme nt only for its individual share of such payments as determined under that Producer Agreement. (Emphasis add ed). In the event that, because of a default by on e or more C CR me mbers, C CR faile d to -5- make a payment due under the Settlement Agreement, plaintiffs counsel was given the option, as to any plaintiffs whose claim had not yet been paid in full, of either continuing the settlement as to the non-defaulting CCR members or, by written election made within 30 days after notice o f the defa ult, declaring th e entire settlement agreement void. Upon that election, the plaintiffs would hav e one year to bring a tort action. If cou nsel elected to continue the settlement as to the non-defaulting member companies, ¶ 7 provided: [A]s to the defaulting CCR member only, any and all plaintiffs whose claims have not been p aid in full by the C CR un der this Agreement shall have the option of (a) electing to enforce the Defaulting CCR member company s obligations under this Settlement Agreement or (b) electing to pursue such plaintiffs claims for asbestos-related injury against the Defaulting CCR member company in the tort system . . . . The second provision of note, contained in ¶ 12, was the requirement that the parties make a good faith effort to resolve any disputes that may arise while implementing the settlement agreeme nt and that, [ i]f the parties a re unable to resolve a dis pute, the issue shall be referred to a mutu ally agree able arb itrator fo r bindin g resolu tion. Finally, ¶21 provided that all disputes concerning the interpretation or performance of the agreement were to be resolved in accordance with Maryland law. It appears that CCR anticipated th at each installm ent wou ld pay, in full, the ag gregate claims of about one-third of the plaintiffs the plaintiffs chosen by counsel whose signed releases were forwarded to CCR . The first insta llment, und er that view , was intend ed to discharge the claims of 208 plaintiffs represented by Ashcraft & Gerel. When the time for -6- that first installment arrived, one CCR member, Asbestos Claims Management Corporation (ACM C), had failed to pay its apportioned share of $679,348. Accordingly, the first installment, sent by CCR on Octo ber 5, 2000 , did not inclu de that am ount. The check, in the amount of $3,822,501, was made payable to Ashcraft & Gerel, attorneys for 208 cla imants. Ashcraft & Gerel e ither had or form ed a dif ferent in tent. Perceiving a legal or ethical problem in drawing distinctions among its clients as to w hen they would be p aid, the firm decided that it would be necessary to pay all of its clients on a pro rata basis from the three installments and not pay any claims in full from the first one. That created a problem, as, under the settlemen t protocol, all plaintiffs who would be receiving any payment were required to sign and submit relea ses ackno wledging payment in full when, in fact, they might not receive full payment of their claim u ntil the final installment was paid tw o years later. After the CCR check was deposited, William M ulroney, an attorn ey with that firm, requested that CCR stop payment on the check and issue a new one to Ashcraft & Gerel as attor neys for various plaintiffs. In an October 23, 2000, follow-up letter to Michael Rooney, then the Chief Claims Officer for CCR, Mr. Mulroney advised that he had identified 88 plaintiffs whose claims were unaffected by the ACMC default, and he requested a check for $581,246 as the first payment for those clients. He also asked that C CR ack nowled ge that (1) all Ashcraft & Gerel M aryland clients subject to the CCR settlement are beneficiaries of the first installment payment, and (2) each of those clients retains his or her remedies under the settleme nt agree ment u ntil such time as th e settlem ent is pa id in full . -7- In an effort to resolve the problem, Mr. Rooney agreed to at least part of Mulrone y s request. In a letter to the two law firms dated October 31, 2000, he advised that CCR consented to the firms using the installments to make partial payment to all qualified plaintiffs rather than to make fu ll payment to thre e separate g roups of th em. In orde r to impleme nt that appro ach, CC R agreed that: Each settling plaintiff will execute a release to the CCR for the full amount of the settlement prior to receiving the first installment; however, it is specifically understood and agreed that these release s are not evid ence of f ull satisfaction of the contractual obligation of the CCR to pay the qualified plaintiffs the settlement values that have been agreed upon, and should the CCR fail to timely make any or all of the payments required by the Master S ettlement A greemen t, then in that event each settling plaintiff who has not received full payment may pursue a remedy in contract against the CCR members for any defi cien cy. If such action is required, the CCR membe rs shall be responsible to pay the deficiency with interest at 8% per annum, and the CCR m embers will reimburse each such settling plaintiff for reasonable attorneys fees and expenses that may be requ ired to co llect this d efic ienc y be lawsuit or otherwise. and This remedy in co ntract on the release will b e the sole legal remedy of each plaintiff who has executed a release for the full consideration of his settlement b ut fails to receiv e timely payment in full, with the exception of those plaintiffs who elect to renunciate the settlement because of the ACMC non-payment before accep ting the f irst settlem ent insta llment p ayment. 3 3 It seems that one exception was made to this arrangement in that the nonmalignant II plaintiffs those with the least serious injury were paid in full from the first insta llment. -8- (Emphasis add ed). Between October 25 and November 9, 2000, CC R sent new checks in the aggreg ate amount of $3,822,501 to replace the check on which, at Mr. Mulroney s request, payment had been stopped. That aggregate amount, as before, represented the first installment due under the settlement agreem ent less th e appo rtioned share o f AC MC . We assume that those check s were depos ited and the fun ds disb ursed. In December, 2000, another CCR m ember, Armstrong World Industries, Inc., went into bankruptcy and stopped paying its share of previously negotiated settlements. On June 1, 2001, when the second installment came due, CCR sent a check to Ashcraft & Gerel As Atto rneys For 250 Plaintiffs in the amount of $879,874, claiming, in a covering letter, that the check c onstitutes full a nd final payment of the amounts due under the settlement for each of the claims on the enclosed list by each of the CCR member companies other than ACM C. The letter noted that, under ¶ 7 of the settlement agreement, each CCR member company will be liable under the settlement agreement only for its individual share of the payment as determined under the CCR Producer Agreement, and that, [a]ccordingly, none of the other CCR members is liable for the share amounts that ACMC has failed to pay. Although the letter noted the bankruptcy of Armstrong six months earlier, it does not appear that Ar mstron g s sha re was deduc ted. Ashcraft & Gerel returned the check, stating that it was $181,195 less than what the contract called for, even after the ACMC and Armstrong defaults. In an August 13, 2001 -9- letter to Daniel Myer, Director of Claims for CCR, the firm, for the first time, asserted that Mr. Rooney s October 31, 2000 letter modified the Settlement Agreement by creating a joint and several obligation on the part of all CCR members to pay the settlement amounts and by giving additional rem edies to the plaintiffs. The firm demanded an alleged unpaid balance of $677,498 from the first installment (together with interest at 8% per annum) an d the entire $4,000,00 0, plus interest, d ue in the sec ond installm ent. When payment was not forthcoming, the plaintiffs filed this action in the Circuit Court for Baltimore City against CCR and its 12 then-remaining members, seeking a declaratory judgment that CCR m embers were jointly and severally liable for all payments due under the settlement agreeme nt and a m oney judgm ent based o n that princip le in the amo unt of $6,023 ,336 plus interest, costs, and attorney fees.4 The claim of joint and several liability was based not only on M r. Rooney s October 31, 2000 letter but also on the final provision in Attachment A to the Producer s Agreement, stating that, if a participating member withdraws from membership or has its membership terminated, the corresponding shares of the other Pa rticipating Pro ducers sha ll be increase d approp riately to pick up the shares of the with drawin g or term inating P articipati ng Pro ducer. The defendants responded to the complaint with a motion to compel arbitration under ¶ 12 of the Settlement Agreement and, because the dispute was arbitrable, to dismiss the 4 It appears that, by the time the suit was filed, two other CCR members had been terminated or had withdrawn, leaving 12 current members. -10- complain t. The plain tiffs conten ded, in opposition to the motion, that the October 31, 2000, letter from Mr. Ro oney expres sly gave the plaintiffs a judicial remedy for breach of contract against CCR members for any deficiency. That, they averred, superseded the arbitration provision in the origin al settlement agreement. They pointed out that this very issue of arbitrability, hinged on a similar letter from Mr. Ro oney, arose in V irginia with re spect to CCR and a number of Virginia plaintiffs and that the Virginia Supreme Court held that the dispute was n ot subje ct to arbi tration. See Amchem Products, Inc. v. Newp ort New s Circuit Court Asbestos Cases, 563 S.E.2d 739 (Va . 2002). Th e plaintiffs arg ued that the Circuit Court should apply the doctrine of c ollateral estoppel and not pe rmit the def endants to relitigate an issue that they trie d and lo st in Virg inia. After a hearing, the court granted the motion to compel arbitration but entered no order on the motion to dismiss CCR. Aggrieved, the plaintiffs appealed, arguing in the Court of Special Appeals that the Circuit Court erred (1) in failing to find that the initial Settlement Agreement had been modified by Mr. Rooney s October 31, 2000, letter and that the modification provided a judicial remedy for any deficiency in payment, and (2) by not giving collateral estoppel effect to the Virginia decision. The branch or form of collateral estoppel posited by the plaintiffs was offensive non-mu tual collateral estoppel. Traditional collateral estoppel, or issue preclusion, require s mutu ality of pa rties, i.e., in a secon d suit between the same parties, even if the cause of action is different, any determination of fact that was actually litigated and was essential to a v alid and fin al judgm ent is co nclusiv e. (Em phasis a dded). Welsh v. -11- Gerber Produc ts, 315 M d. 510, 516 , 555 A.2d 486, 489 (1989) an d cases cited there; also Colandrea v. Wilde Lake, 361 Md. 371, 387 , 761 A.2d 899, 908 (2000); Ashe v. Swenson, 397 U.S. 436, 443, 90 S. Ct. 1189, 1194, 25 L. Ed.2d 469, 475 (1970). Obviously, there was no mutuality of parties in the Maryland and Virginia litigation; none of the plaintiffs in the Maryland litigation were par ties in the Virg inia case, and , although C CR w as a party in both actions, only three of the CCR members named as defendants in the Maryland case were parties in the Virginia action.5 Some courts have modified the mutuality requirement by precluding, in an action between A and B, relitigation o f an issue d ecided in an earlier case to which either A or B, but not bot h, was a party. If the plaintiff in the second case seeks to foreclose the defendant from relitigating an issue that the defendant previously litigated unsuccessfully against other plaintiffs, the doctrine invoked is offensive non-mutual collateral estoppel; if the defendant seeks to preclude the plaintiff from relitigating an issue that the plaintiff previously litigated unsucce ssfully against othe r defenda nts, the doctrin e is referred to as defensive non-mutual collateral estopp el. See Welsh, supra, 315 M d. at 517-18 , n.6, 555 A .2d at 489, n .6. In this case, the plaintiffs invoked offensive non-mutual co llateral estoppe l, as they sought to 5 Under no branch of collateral estoppel would an existing judgment have preclusive effect against a person who was not a party, or in privity with a party, in the action leading to the judgment. We presume that the plaintiffs are seeking preclusive effect against the defendants which were not parties in the Virginia case on the ground that they were in privity with persons who were parties in that case. The validity of any such assertio n is not que stioned in this a ppeal, and we shall n ot address it. -12- preclude th e defend ants from relitigating the issue of arbitrability that some of them raised and lost in the Virginia case. The Court of Special A ppeals rejec ted that effo rt, largely on the basis of common law conflict of laws principles, although it injected into its discussion, albeit briefly, references to the Constitutional full faith and credit require ment, which none of the parties had raised in either the Circuit Court or the Court of Special Appeals.6 Citing Jessica G. v. Hector M., 337 Md. 388, 404, 653 A.2d 922, 930 (1995), the court noted that, under the Maryland law of conflict of laws, the res judicata effect to be given to the judgmen t of anothe r State is that which the judgm ent wou ld have in the State where it was rendered. Referencing Norfolk & W. Ry. Co. v. Bailey Lumber Co., 272 S.E.2d 217 (Va. 1980), the court further observed that Virginia did not recognize offensive non-mutual collateral estoppel but continued to require mutuality of parties as part of its collateral estoppel law. Thus, it held, as Virginia would not give preclusive e ffect to its Amchem decision and prevent the defendants here from litigating arbitrability in a Virginia court, preclusive effect should not be given to the judgment in a 6 We are inform ed by plaintiffs in their petition for certiorari that, during oral argument, the Court of Special Appeals directed the parties to file supplemental briefs on the issue of whether, where the plaintiffs have invoked the doctrine of offensive nonmutual collateral estoppel to preclude relitigation of issues of arbitrability and joint and several liability, the trial court was obligated to give effect to the Virginia judgment or had discretion to refuse recognition without having made a determination that the defenda nts did not h ave a full an d fair oppo rtunity to litigate those issues. In their supplem ental brief, the plaintiffs ad dressed tha t issue princip ally in terms of th e Full Faith and Credit Clause, rather than in the context of common law collateral estoppel principles. Whether they did so in response to comments made by the panel at oral argument is not clear to us. -13- Maryland c ourt. On the substantive issue of arbitrability, the appe llate court agre ed with the Circuit Court that the Rooney letter did not suffice to modify the arbitration provision in the initial Settlement Agreement. The plaintiffs relied on two provisions in that letter, one stating that a settling plaintiff who did not receive full payment could pursue a remedy in contract against the CCR m embers for any deficienc y and the other permitting the recovery of interest and costs if the plaintiffs are required to collect a deficiency by lawsuit or otherwise. The court did not view either provision as negating the arbitration clause and, to that extent, d isagreed su bstantively with the conclu sion of the V irginia court. The plaintiffs have presented four questions for our review: (1) whether, in light of the agreeme nt to apply M aryland law to any dispute arisin g from the Settlemen t Agreem ent, the Court of Special A ppeals erred in app lying Virginia collateral estoppel law as a basis for refusing to give the V irginia judgment preclusive effect; (2) w hether the F ull Faith and Credit clause and the implementing Federal statute, 28 U.S.C. §1738, prohibits Maryland from giving greater effect to the Virgin ia judgment than Virginia would give to it; (3) whether Maryland recognizes offensive non-mutual collateral estoppel and, if so, whether the lower courts erred in failing to make a fairness determination in accordance with Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed.2d 552 (1979); and (4) whether the Court of Special Appeals violated the full faith and credit clause by questioning the legal basis of the Virginia judgment. Because some of these questions overlap and are, in part, not -14- really presented, we shall address the issue s in a somewh at different manner. DISCUSSION Full Faith and Credit/Collateral Estoppel As noted, althou gh the Co nstitutional fu ll faith and credit requirement was not raised in or ruled up on by the Circ uit Court, it was addressed b y the Court of Specia l Appeals , albeit briefly. We agree with th e intermediate appellate court, that, under both a full faith and credit and a common law collatera l estoppel an alysis, Maryland is n ot required to give, and, indeed, may not ordinarily give, any greater preclusive effect to the Virginia judgment than Virginia would give to it, and that, in resolving that issue, we must apply Virginia, not Marylan d, collate ral estop pel law . Article IV, § 1 of the U.S. Constitution provides that full faith and credit shall be given in each Sta te to the public acts, records, and judicial proceedings in every other State, and that Congress may, by general laws, prescribe the Manner in which such Acts, Records and Procee dings s hall be p roved, and the E ffect thereof. (Emph asis added ). Congress enacted such a law in its very first session, in 1790, and, in fact, through that law, has expanded the Clause by requiring the Federa l courts to give full faith and credit to State court judgments. Title 28 U.S.C. §1738 prescribes the method by which legislative acts, records, and judicial proceedings are to be authenticated and proved. With respect to effect, the statute provides th at such acts, re cords, and judicial proce edings, so a uthenticated , shall -15- have the same f ull faith and c redit in every court within the United States and its Territories and Possession s as th ey have by law or usage in the courts of such State, Territory or Possession from which they are taken. The statute is clear and has been interpreted as meaning precisely what it says: with certain very limited exceptions, such as a showing that the rendering court had subject matter and personal jurisdiction, a Federal court or the cou rt of another State must give the same preclusive effect to the judgment of a State court as would the courts of the State that rendered the judgment, no more and no less. In contrast to the view of the plaintiffs, the United States Supreme Court has made clear that, in determining the preclusive effect to be given to the judgm ent of a Sta te court, the claim and issue preclusion rules of the State that rendered the judgment must govern. The point was first made in Board of Public Works v. Columbia College, 84 U.S. 521, 21 L. Ed. 68 7 (187 3). The Colum bia College case was a bit complex , but essentially it invo lved an ef fort in a District of Columbia court to reach property in the estate of a deceased partner of an insolvent firm. In order to recover, the plaintiff had to show that the partner s obligation was for a sum certain, and, to make that showing, the plaintiff relied on a judgment of a New York court that, in turn, had relied on a decree of a Virginia trial court. The problem was that a Virginia ap pellate court h ad held the trial court decree to be interlocutory and theref ore non-final. Because the Virginia decree would not be given preclusive effect in Virginia, the Supreme Court held that it could not be given p reclusive ef fect in New York or the District -16- of Columbia. Citing an earlier New York case, Suydam v. Barber, 18 N.Y. 468, 75 Am.Dec. 254 (1858), the Court held that [n]o greater effect can be given to any judgment of a co urt of one State in another S tate than is giv en to it in the State where rendered, as [a]ny other rule would contravene the policy of the provisions of the Constitution and laws of the United States on that subject. Columbia College, 84 U.S. at 529, 21 L. Ed. at 691.7 The subsequent cases in the Supreme Court on this issue have mostly involved the extent to which Federal courts must give preclusive effect to S tate court judgments, and that has hinged on the statute (§1738) rather than the Constitutional provision, but the analysis, to the extent the statute applies , is the same. In Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 1897, 72 L. Ed.2d 262, 280 (1982), the Court, in holding that a New York jud gment af firming, on judicial review , an admin istrative determ ination that an employment discrimination claim had no merit was entitled to preclusive effect in a subsequent Federal court action und er Title VII o f the Civil Rights Act of 1964, noted that 7 In Suydam v. Barber, the plaintiff sued three partners in New York on a bill of exchange. One of the partners defended on the ground that the plaintiff had sued another of the partners in Missouri and recovered a judgment, and that, under New York law, recove ry of a jud gmen t agains t one pa rtner ex tinguish ed the d ebt aga inst the o thers. Missouri law w as to the contrary, however, and the New Y ork court applied the M issouri law in determining that the M issouri judgment did no t have preclusive effec t. The court observed: [N]o case can be found where a greater effect is given to the judgment of any State in t he cou rts of an other th an belo ngs to it in the State where it was re ndered . Indeed, such a rule would be against all reason, and not only out of the policy of the provisions of the constitution and laws of the United States on that subject, but against and irreconcilable with all policy and with the plainest and fundamental principles of justice. 18 N.Y. at 472. -17- [i]t has long been established that §1738 does not a llow fede ral courts to employ their own rules of res judicata in determining the effect of s tate judgm ents. Rathe r, it goes beyond the common law and commands a federal court to accept the rules chosen by the State from which the judgment is taken. That view has been confirmed on a number of occ asions. See Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed.2d 308 (1980); Haring v. Prosise, 462 U.S. 306 , 103 S. Ct. 2 368, 76 L . Ed.2d 59 5 (1983); Migra v. Warren City School D ist. Bd. of Ed., 465 U.S . 75, 104 S . Ct. 892, 79 L. Ed.2d 5 6 (1984) (th e concern s of com ity reflected in §1738 generally allow States to determine the preclusive scope of their own courts judgmen ts.); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 10 5 S. Ct. 1 327, 13 32, 84 L . Ed.2d 274, 28 1 (198 4). In Migra, a discharged teacher recovered judgment in an Ohio State court against the school board for breach of contract. Although she sued the individual board members for conspiracy and interference with her contract, she did not bring a §1983 action against them, as she could have done. The State court awarded her a judgment for breach of contract but dismissed the claims against the individua l board members. Migra then filed a §1983 action in Federal court against the board members, and the question arose whether, having failed to make that claim in the Ohio litigation, she was barred by claim preclusion from bringing the action in Federal court. The Federal court dismissed the action on res judicata grounds. The Supreme C ourt made clear that the plaintiff s state-cou rt judgment in this litigation has the same claim preclusive effect in federal co urt that the jud gment w ould have in the Ohio -18- state courts. Id. at 85, 104 S. Ct. at 898, 79 L. Ed.2d at 64. Uncertain whether the District Court had applied the Ohio law of preclusion or its own , the Supreme C ourt remanded the case for the trial court to apply the Ohio law. In Marrese, the Court, in discussing Migra, observed that [s]uch a remand obviously would have been unnecessary were a federal court free to give greater preclus ive effect to a state court ju dgment th an wou ld the judgm entrendering State. Marrese, supra, 470 U.S. at 384, 105 S. Ct. at 1334, 84 L. Ed.2d at 284. The Marrese Court added that §1738 embodies concerns of comity and federalism that allow the States to determine, subject to the requirements of the statute and the Due Process Clause, the preclusive effect of judgments in their own courts. Id. at 380, 105 S. Ct. at 1332, 84 L. Ed.2d at 281. The expressions and holdings in these §1738 cases are entirely consistent with the pronoun cements of the Suprem e Court in C onstitutional f ull faith and c redit cases. See, for example, Ford v. Ford, 371 U .S. 187 , 192, 83 S. Ct. 27 3, 276, 9 L. Ed.2d 240, 244 (1962) ( The Full Faith an d Credit C lause, if app licable to a cu stody decree, w ould requ ire South Carolina to recogniz e the Virgin ia order as b inding on ly if a Virginia court would be bound by it. ); Riley v. New York Trust Co., 315 U.S. 343, 349, 62 S. Ct. 608, 612, 86 L. Ed. 885, 891 (1942) ( That clause compels that controversies be stilled so that where a state court has jurisdiction of the parties and subject m atter, its judgment controls in other states to the same extent as it does in the state where re ndered. ); Morris v. Jones, 329 U.S, 545, 551, 67 S. Ct. 451, 456, 91 L. Ed. 48 8, 496 (1947) ( T he full faith and credit to which a judgm ent is -19- entitled is the credit which it has in the State from which it is taken, not the credit that under other circumstances and conditions it might have had. ). Those expressions and holdings have been ech oed by low er Federal courts and by va rious State co urts 8 , and are consistent with language from our cases. 9 Where the full faith and credit issue invo lves full claim preclusion (traditional res judicata ), there seems to be little or no disagreement with the proposition that the rendering State s preclusion rules will apply, and that seems to be the majority rule as we ll when only issue preclusion (collateral estopp el) is at sta ke. See Gregory S. Getsch ow, If At First You Do Not Succeed: Recognition of State Preclusive Laws In Subsequent Multistate Actions, 35 Vill . L. Rev. 253 (1990). Some courts, however, have applied their ow n preclu sion rule s in the la tter cont ext. Id. Getscho w view s the first approach as effectively merging the preclusion rules into the judgment; the rendering State s preclusion law is applied because it has bec ome part of the judgment. The second approach, 8 See Clyde v. Hodge, 413 F.2d 48 (3rd C ir. 1969); United States v. Dominguez, 359 F.3d 839 (6th Cir. 2004); Far Out Productions, Inc. v. Oskar, 247 F.3d 986 (9th C ir. 2001); Federal Ins. Co. v. Gates Learjet Corp., 823 F.2d 383 (10 th Cir. 1987); Farred v. Hicks, 915 F.2d 1530 (11th Cir. 1990); Pruden tial Securities In c. v. Arain, 930 F. Supp. 151 (S.D .N.Y. 199 6); Centre Equities, Inc. v. Tingley, 106 S.W.3d 14 3 (Tex. App. 20 03); Columbia Cas. Co. v. Playtex FP, Inc., 584 A.2d 121 4 (Del. 1991). 9 See Weinberg v. Johns-Manville Sales Corp., 299 Md. 225, 234, 473 A.2d 22, 27 (1984) an d cases cited there ( Un der the princ iples of full f aith and cre dit, a state court is generally required to give judgments rendered in other states the same effect that they have in the rendering s tate. ); Jessica G. v. Hector M., 337 Md. 388, 405, 653 A.2d 922, 931 (1995) ( By giving to the New York judgment the same effect which the courts of New Y ork wou ld give to tha t judgmen t, we thereb y also honor th e Full Faith a nd Cred it Clause. ); also Wernwag v. Pawling, 5 G.& J. 5 00, 507 (M d. 1833); Brengle v. McClellan, 7 G.& J. 4 34, 440-4 1 (Md. 1 836); Madden v. Cosden, 271 Md. 118, 125, 314 A.2d 128, 132 (1974). -20- he says, views preclusion as independent of full faith and credit, allowin g the secon d State to apply its own rule. Whether one uses that analysis or some other, we believe that the view enunciated by the Suprem e Court is the better rule, eve n if it is not a Con stitutionally required one. The full faith and credit c lause wa s taken fro m a similar c lause in A rticle 4 of the Articles of Confederation. See Brengle v. McClellan, 7 G.& J. 434, 439 (Md. 1836). Although, as noted in Johnson v. Muelberger, 340 U.S. 581, 584 , 71 S. Ct. 474, 476, 95 L . Ed. 552, 556 (195 1), there is little or no legislative history to explain the purpose and meaning of either the Constitutional provision or the statute, from judicial experience there has emerged the succinct conclusion that the Framers intended it to help weld the in dependent states into a nation by giving judgments within the jurisdiction of the rendering state the same faith and credit in sister states as they have in the state of the original foru m. See also M agnolia Petroleum Co. v. Hunt, 320 U.S. 430, 439, 64 S. Ct. 208, 214, 88 L. Ed. 149, 155-56 (1944) ( It altered the status of the several states as independent foreign sovereign ties, each free to ignore rights and obligations created under the laws or established by the judicial proceedings of the others, by making each an integral p art of a single nation, in w hich rights jud icially established in any part are given nation -wide application. ). 10 10 The actual holding in Magnolia, supra, that a person having rec eived workers compensation benefits in one state could not then receive them in another State for the same injury, was significantly limited in Industrial C omm n of Wiscon sin v. McC artin, 330 U.S. 622, 67 S. Ct. 886, 91 L. Ed. 1140 (1947), and later overruled in Thomas v. (contin ued...) -21- Neither that unifying role of the clause nor its complementary function of preserving to the States the power to determine the e ffect to be g iven to their o wn judg ments is w ell served when, ab sent some truly compelling and Constitutionally permissible circumstance, States treat the judgment of a sister State differently than it would be treated in the State of rendition. That is especially the case with respect to failing to resp ect the rendering State s issue preclusion law. Whether and how far to depart from the traditional requirement of collateral estoppel that there be mutuality of parties has been, and ought to remain, a policy decision for each S tate to make . This Court has gone so far as to recognize defensive nonmutual collateral estoppel, at least where the p arty sought to be bound by the existing judgmen t had a full an d fair oppo rtunity to litigate the issue s in questio n. See Pat Perusse Realty v. Lingo, 249 Md. 33, 238 A.2d 100 (1968). We have acknowledged, however, that there are many situations where application of the doctrine of nonmutual collateral estoppel would be ma nifestly un fair, Welsh, supra, 315 Md. at 517, 555 A.2d at 489, and we have yet to formally embrace offensive non-m utual co llateral es toppel. The Supreme Court, as an aspect of Federal law, has departed from the mutuality requireme nt, although in Parkla ne Ho siery C o., Inc. v. Shore, 439 U.S. 322, 99 S. Ct. 645, 58 L. Ed.2d 552, it expressed some concerns about, and refrained from blessing the broad application of, offensive non-mutuality. The Court articulated two reasons posited for why 10 (...continued) Washington Gas Light Co., 448 U.S. 261, 100 S. Ct. 2647, 65 L. E d.2d 757 (1980 ). -22- offensive and defensive non-mutuality should not be treated the same. First, offensive use of collateral estop pel does n ot promo te judicial eco nomy in the same manner as defensive use does. Id. at 329, 99 S. Ct. at 650, 58 L. Ed.2d at 561. The Court exp lained that, whereas defensive collateral estoppel gives a plain tiff a strong in centive to join all potential defendan ts in the first action, if possible, offensive collateral estopp el creates a contrary incentive: [s]ince a plaintiff w ill be able to rely on a previous judgmen t against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a w ait and see a ttitude, in the ho pe that the first action by ano ther plaintiff w ill result in a favorable judgment. Id, at 330, 99 S. Ct. at 651, 58 L. Ed.2d at 561. A second argument against offensive non-mutual collateral estoppel is that it may be unfair to the defe ndant, for several reasons. The Court noted (1) that [i]f a defendant in the first action is sued for small or nominal damages, he may have little incentive to defend vigo rous ly, particularly if futu re suits are not foreseeab le, (2) offen sive use m ay be unfair as well if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more prev ious judgm ents in favo r of the defendant, and (3 ) such use m ay be unfair where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a differe nt result. Id. at 330-31, 99 S. Ct. at 651, 58 L. Ed.2d at 562. Each State supreme court should resolve these policy questions for itself and not have other courts determine the effect of the judgments rendered by the courts of that State. -23- Professor Charles Alan Wright makes the appropriate point that [t]he first court should have the power to limit the effect of its own proceedings, and that that power would be destroyed if the parties could not rely on the mutuality rule adopted by the first court. 18B C HARLES A LAN W RIGHT ET AL,. F EDERAL P RACTICE AND P ROCEDURE §4467, at 50 (2d ed. 2002). Wright observes elsewhere: If the court that rendered judgment would deny nonmutual preclusion, later courts should honor that policy. Assertion of nonmutual preclusion in such circum stances w ould mak e it impossible for the first court to give effect to policies that may include broad freedom in selecting parties, freedom to litigate a particular case according to its own needs without concern about the impact on other cases, and acceptance of results that seem just between particular parties even though a new trial or directed verdict or at least an appeal would be required if the stakes w ere grea ter. 18A C HARLES A LAN W RIGHT, F EDERAL P RACTICE AND P ROCEDURE §4465.5 at 806 (2d ed. 2002). Virginia has made its choice. In Norfolk and W. Ry. Co. v. Bailey Lumber Co., 272 S.E.2d 217, 218 (Va. 1980), the Virginia Supreme Court explored the reasons favoring and disfavoring the adoptio n of offe nsive non -mutual co llateral estoppel and dec ided to retain the traditional requirement of mutuality. In that case, the court reaffirme d Virginia s adherence to the principle of mutuality which holds that a litigant is generally prevented from invoking the preclusive force of a judgment unless he would have been bound had the prior litigation of the is sue rea ched th e oppo site resu lt. Rawlings v. Lopez, 591 S.E.2d 691, 692 (Va . 2004), quo ting in part from Bates v. Devers, 202 S .E.2d 9 17, 921 (Va. 19 74). In -24- Rawlings, the Virginia court maintained its adherence to that pr inciple. See also TransDulles Center, Inc. v. Sharma, 472 S.E.2d 274 (V a. 1996). For all of these re asons, we hold that, in ap plying full faith a nd credit to th e Virginia judgmen t, a Maryland court must treat the judgment precisely the same as it would be treated in a Virginia court, and that requires that we apply the preclusion rules that would be applied in Virginia.11 That is also the approach this Court has taken in applying principles of common law collatera l estoppel. See Jessica G. v. Hector M., supra, 337 Md. 388, 404, 653 A.2d 922, 930, where, citing two earlier cases, we confirmed that [u]nder the Maryland law of conflict of laws, the res judicata effect to be given to the judgment of a court of a foreign state is the res judicata effect that th at judgme nt has in the state where the judgment was 11 The plaintiffs rely on Hart v. American Airlines, Inc., 304 N.Y.S.2d 810 (Sup. Ct. N.Y. Co. 1969) and Finley v. Kesling, 433 N.E.2d 1112 (Ill. App. 1982) in support of their arg umen t that we should apply M aryland p reclusio n law. Hart, a trial court decision, did not rest on a full faith and credit analysis, as the earlier judgment was rendered by a Federal court, not the court of another State, and, in any event seems inconsistent with the holding of the New York Court of Appeals in Schultz v. B oy Scouts of America, Inc., 491 N .Y.S.2d 90 (19 85). Finley supports the plaintiffs po sition, but is simply no t persua sive in lig ht of the overw helmin g contr ary autho rity. Plaintiffs also assert that, because of ¶ 21 of the Settlement Agreement, which requires that any dispute concerning the interpretation or performance of the agreement be resolved in accordance with Maryland law, we should give the Virginia judgment the same e ffect a s we w ould gi ve a M aryland ju dgme nt, i.e., we should not ap ply Virginia s requireme nt of mutu ality. We are no t persuaded . For one th ing, for plain tiffs to preva il, we would have to apply, as Maryland law, offensive non-mutual collateral estoppel, and, as noted, w e have no t yet embraced that aspect o f non-m utuality and dec line to do so in this case . We sh all hono r ¶ 21 b y applying M aryland la w to the issue at h and, i.e., determining whether the dispute is subject to arbitration. One aspect of that issue is the effect to be given to the Virginia jud gment. T he Mar yland law reg arding that a spect is that we give the judgm ent the s ame ef fect as V irginia w ould gi ve it. -25- render ed. As the parties agree th at Virginia c ontinues to r equire mu tuality as part of its collateral estoppel law and would therefore not give preclusive effect to its Anchem judgment in a second action by different plaintiffs, and clearly would not, and could not, give preclusive effect to it ag ainst defen dants wh o were n ot parties, or in p rivity with parties, in the Virginia action, the Circuit Court and the Court of Special Appeals were correct in not giving preclusive effect to it in this action. Whe ther the P laintiffs Cla ims Are Arbitra ble Because the Circuit Court was not bound in any way by the Virginia judgment, it had to decide for itself whether the claims asserted by the plaintiffs were subject to arbitration under either (or both ) the Fe deral A rbitration Act (T itle 9, U.S .C.) or the Maryland U niform Arbitration Act (Maryland Code, title 3, subtitle 2 of the Cts. & Jud. Proc. Article ). Both statutes make a provision in a written agreement to submit to arbitration any controversy arising between the parties in the future valid and enforceable and, upon pe tition by a party seeking to compel arbitration, require a court, upon finding tha t an agreem ent to arbitrate the dispute exists, to order arbitration. See title 9, U.S.C. §§2 and 4, and Maryland Code, §§3206(a) and 3-207 of the Cts. & Jud. Proc. Article. The only issue for the court in such a proceeding is whether an enforceable agreement exists to arbitrate the unde rlying dispute; the court is n ot conc erned w ith the m erits of th at dispu te. Allstate Ins. Co . v. Stinebaugh, 374 Md. 631, 642, 824 A.2d 87, 94 (2003) and cases cited there. -26- There can be no doubt that the arbitration provision set forth in ¶ 12 of the Settlement Agreement is an all-inclusive one, requiring that any disputes that may arise while carrying out the terms an d condition s of this Ag reement not resolve d by the parties am icab ly be submitted to binding a rbitration. Tha t provision is certainly broad enough to include a dispute over whether non-defaulting members of CCR are liable for the unpaid shares of defaulting members. The issue is whether that provision has been abrogated or mitigated by Mr. Rooney s letter of October 31, 2000. We dealt with a similar issue in Allstate. Two issues were framed in that case: (1) whether it is for the court or the arbitrator to determine arbitrability when the parties entered into a gene ral arbitration ag reement b ut subsequ ently bound themselves to a consent order that contemplated a judicial remedy; and (2) the effect of an agreement that contemplates a judicial remedy for the particular dispute upon a prior general arbitration agreement that would have required arbitration of the dispute. We concluded, as to the first issue, that courts, not arbitrators, sh ould decide w hether a prio r agreeme nt to arbitrate disputes applies when a subsequent agreement calls for a judicial resolution of the particular contro versy. Allstate, supra, 374 Md. at 635, 824 A.2d at 89. As to the second issue, we held that the subsequent consent order did, indeed, provide a judicial remedy for the dispute at hand and therefore superseded the earlier general arbitration provision. The first issue in Allstate is presented here as well. Although it rests on a matter of contract construction the effect of the Rooney letter the issue relates directly to and -27- indeed determines whether there is a currently viable agreement to arbitrate, which is an issue that the court must decide.12 In construing contracts, Maryland follows the objective interpretation principle. If the language of the con tract is unambiguous, we give effect to its plain meaning and do not delve into what the parties may hav e subje ctively inte nded. Wells v. Chevy Chase Bank, F.S.B., 363 Md. 232, 250-51, 768 A.2d 620, 630 (2001). W here the contract com prises two or more documents, the docum ents are to be constru ed togethe r, harmonio usly, so that, to the extent possible, all of the provisio ns can b e given effect . See Rocks v. Brosius, 241 Md. 612, 637, 217 A.2d 531, 545 (1966); Rothman v. Silver, 245 Md. 29 2, 296, 226 A.2d 308, 310 (1967 ); Bachmann v. Glazer & Glazer, Inc., 316 Md. 405, 415, 559 A.2d 365, 369 (1989). In terms of the issue before us, that require s looking a t the Roon ey letter to see w hat, if anything, in it precludes g iving effe ct to ¶ 12 of the Settleme nt Agree ment. The Roone y letter, as noted, w as intended to resolve the problem o f requiring a ll settling plaintiffs to execute a release fo r the full amount of their respective settlemen ts in advance of receiving only a partial payment of the settlement. Some provision needed to be 12 It is important to keep clear that the issue here is not the scope of an arbitration clause w hether it app lies to the particu lar dispute. W here scop e is the issue an d there is any ambigu ity as to whethe r the agreem ent covers th e particular d ispute, we h ave held that the is sue of arbitrab ility is, at least in itially, for the arbitrato r to deter mine. Gold Coast Mall v. Larmar Corp., 298 M d. 96, 107, 4 68 A.2d 91, 97 (19 83). The iss ue here is whether , by virtue of the R ooney letter, the a rbitration agre ement tha t clearly covered this dispute continues to apply. That goes to the continued existence, rather than the scope, of an arbitration agreeme nt. -28- made for reserving their rights if they did not ultimately rec eive all that they w ere entitled to receive under the settlement agreement. To that end, the letter stated: [S]hou ld the CCR fail to timely mak e any or all of th e payments required by the Mas ter Settlemen t Agreem ent, then in that event each settling plaintiff who h as not receiv ed full payment may pursue a remedy in contract against the CCR members for any deficiency. If such action is required, the CCR members shall be responsible to pay the deficiency with interest at 8% per annum, a nd the CC R mem bers will reim burse each such settling plaintiff for reasonable attorneys fees and expenses that may be req uired to c ollec t this defi cien cy by lawsuit or otherwise. (Emphasis add ed). The plaintiffs view the italicized langua ge a remed y in contra ct, suc h action , and by lawsuit or otherwise as providing a judicial rem edy in the event o f any shortfall in full payment. We do not agre e. Permitting a remedy in con tract does not foreclose arbitration as the reme dy. To state that if such action is required to collect the deficiency the plaintiffs will be entitled to interest, attorneys fees, and expenses does not indicate that the collection action is to be other than a claim subm itted to arbitration . Indeed, if the two sentences are to be rea d together h armoniou sly, such action would necessarily refer to the remedy in contract. In the absence of a general arbitration clause in the contract, those provisions certainly would permit a judicial action to collect the deficiency and ancillary expenses, but they are in no way inconsistent with the arbitration provision and can be given full me aning in harmo ny with th at prov ision. The language that gave the C ircuit Court some pause was the last provision, requiring -29- the CCR m embers to pay the ancillary fees and expenses that may be required to collect the deficiency by lawsuit or otherwise. That language the reference to lawsuit is not necessarily inconsistent with the arbitration prov ision, how ever, and c an be read in full harmony with it. Under th e Settlemen t Agreem ent, plaintiffs c ounsel is giv en certain options in the even t an installmen t is short becau se one or m ore CC R mem bers failed to contribute their share of the installment. Counsel could declare the entire settlement agreem ent void , in whic h even t the plain tiffs co uld sue the def endan ts in tort. If counsel elected to continue the settlement agreement as to the non-defaulting CCR members, the plaintiffs had the option, as to the defaulting members, of (a) electing to enforce the Defaulting CCR member company s obligations under this Settlement Agreement or (b) electing to pursue such plaintiffs claims for asbestos-related injury against the Defaulting CCR member company in the tor t system. Implicit in that c onstruct is tha t, if counsel elected to con tinue the settlement with the no n-defaulting CCR members, the agreeme nt, and, with it, the arbitration requirement, would be terminated as to the defaulting members. That would allow, as an alternative to a tort action, a lawsuit for breach of contract against the defaulting mem bers to collect the deficiency and, und er the Rooney letter, interest, expen ses, and attorneys fees as well. Read in that manner, the language is entirely consistent with maintaining the arbitration requirement as to any dispute with the nondefaulting CCR members, which is precisely what this case involves. That construction of the Ro oney letter is favored not only by the requirem ent that all -30- provisions of a contract be read together harmoniously, so that each can be given eff ect, but also by the ordinary m andate that, where an arbitration agreement exists, ambiguities as to arbitrability be resolved in favor of arbitration. Notwithstanding the contrary conclusion of the Virginia co urts in their Amchem decisions, we find no basis in the record before us for refusing to enforce ¶ 12 of the S ettlement A greemen t. JUDGMENT OF COURT AFFIRMED, WITH COSTS. -31- OF SPECIAL APPEALS IN THE COURT OF APPEALS OF MARYLAND No. 130 September Term, 2003 EDNA O. ROURKE, AS PERSONAL REPRESENTATIVE FOR THE ESTATE OF FRANKLIN ADAMS, ET AL. V. AMCHEM PRODUC TS, INC., ET AL. Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C.J., which Cathell, J., joins Filed: December 14, 2004 This case involves the collateral estoppel effect of a prior judgment, entered in a case in which the defenda nts in this case participated,13 and interpreting a settlement ag reement, which, except that it was with different plaintiffs, was virtually identical to the one at issue in this case. The issue would be a straight-forward, even simple, issue of a State applying its rules of issue preclusion, but for a complicating and seemingly perpetually confusing factor, the p rior judgmen t was entered by a neighboring State court. While I do not believe that that factor does, or should, change the analysis, the majority does. Thus, it affirms, and on the same rationale, the judgment of the Court of Special Appeals, which, affirming the judgment of the Circuit Court for Baltimore City, but unlike that court, invoked the full faith and credit clause of the United States Cons titution. Rourke v. Amchem, 153 Md. App. 91, 116-18, 835 A . 2d 193 , 207-2 08 (20 03). Rourke v. Amchem, ___ Md. ___, ___, ___ A. 2d ___, ___ (2004) [slip op. at 1, 14-2 5]. For the re asons that f ollows, I diss ent. Collateral estoppel is an aspect of the finality of judgm ents betw een the pa rties to litigation. Welsh v. Gerber Prods., Inc., 315 M d. 510, 5 17, 555 A.2d 4 86, 489 (1989 ). Often characterized as issue preclus ion, id.; Kent County Bd. of Educ. v. Bilbrough, 309 Md. 487, 490, 525 A.2d 232, 23 3 (198 7). While [c]laim preclusion refers to the effect of a judgment 13 The majority points out that not all of the appellees in this case were actual parties in the Vir ginia ca se. Rourke v. Amchem. Products, Inc., ___ Md. ___, ___, ___ A.2d ___, ___ (2004) [slip op. at 11]. It also points out, and this is more to the point, that no issue ha s been pre sented w ith respect to th e privity of these appellees to the parties in the Virginia case. in foreclosing litigation of a matter that never has been litigated, because of a determination that it should h ave been advance d in an earlie r suit, Bilbrough, 309 Md. at 490, 525 A.2d at 233, it is concerned with the issue implications of the earlier litigation of a different case. Colandrea v. Wilde Lake Community Ass'n, Inc., 361 Md. 371, 390, 761 A.2d 899, 909 (2000). We hav e explained the principle as being that in a second suit between the same parties, even if the cause of action is different, any determina tion of fac t that was ac tually litigated and was essential to a valid an d final judg ment is conclusive. Welsh, 315 Md. at 490, 525 A .2d at 23 3. See Murray International v. Graham, 315 Md. 543, 547, 555 A.2d 502, 504 (1989), quoting Restatement (Second) of Judgments, § 27 (1982)( [w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgmen t, the determin ation is conc lusive in a subsequent action between the part ies, whether o n the sa me or a differe nt claim . ). See also Janes v. State, 350 Md. 284, 295, 711 A.2d 1319, 1324 (19 98); MPC, Inc. v. Kenny, 279 Md. 29, 32, 367 A.2d 486, 489 (1977); Frontier Van Lines v. Md. B. & Tr. Co., 274 Md. 621, 624, 336 A.2d 778, ___ (1975); Travelers Insur. Co. v. Godsey, 260 Md. 669, 676, 273 A.2d 431 (1971); Sterling v. Local 438, etc., 207 Md. 1 32, 143 , 113 A .2d 389 , cert. denied, 350 U.S. 875, 76 S. Ct. 11 9, 100 L . Ed. 77 3 (195 5). This is consistent w ith the form ulation of th e test by the Un ited States Su preme C ourt. In Ashe v. Swenson, that Court stated the principle as follows: Collateral estoppel is an awk ward ph rase, but it stand s for an ex tremely -2- important principle in our adversary system of justice. It means simply that when an issue of ultimate fact has once been determined by a valid and final judgmen t, that issue cannot again be litigated between the same parties in any future lawsuit. 397 U.S. 436, 44 3, 90 S . Ct. 118 9, 1194 , 25 L. E d. 2d 46 9, 475 ( 1970) . It stated the principle a little differently in Mon tana v. U . S., 440 U.S. 147, 153, 99 S. Ct. 970, 973, 59 L. Ed. 2d 210, 217 (1979), quoting Southern Pacific R. Co. v. United States, 168 U.S. 1, 4849, 18 S. Ct. 18, 27, 42 L . Ed. 355, 376-377 (1897): A fundamental precept of common-law adjudication, embodied in the related doctrines of collateral estoppel and res judicata, is that a right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . .. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 326 n. 5, 99 S. Ct. 645, 649 n. 5, 58 L. Ed. 2d 552, 559 n. 5 (1979) ( Under the doctrine of collateral estoppel ... a second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issue s actuall y litigated a nd nec essary to th e outco me of the first a ction. ). Underlying the doctrine of collateral estoppel, as well as its cousin, res judicata, are policy, practica l necess ity and just ice con sideratio ns. Pat Perusse Realty v. Lingo, 249 Md. 33, 42, 238 A.2d 1 00, 106 (1968), quoting Williams v.Messick, 177 Md. 605, 615, 11 A.2d 472, 476 (1940). Thus, we have stated: -3- The functions o f this doctrine, and the allied doctrine of res judicata, are to avoid the expense and vexation of multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inco nsistent decisio ns. Graham, supra, 315 Md. at 547, 555 A.2d at 504, citing Montana v. United States, 440 U.S. 147, 153-5 4, 99 S . Ct. 970 , 973-7 4, 59 L . Ed. 2d 210, 21 7 (197 9). See MPC, Inc. v. Kenny, 279 Md. at 34 -35, 367 A .2d at 490 (p ublic policy against interminab le litigation); Pat Perusse, 249 Md. a t 45, 238 A.2d at 107-108 (public policy against repetitive identical litigation, which u nderlies the ru le of res judic ata, applies he re with logic and force to provide that P erus se's rights were satisfied by hav ing had its day in court on an issue, and that it is not entitled to another day in court against a particular defendant on that issue ); Prescott v. Coppage, 266 M d. 562, 5 70-73 , 296 A .2d 150 , 154-1 55 (19 72). See also Powers v. State, 285 Md. 269, 283-284, 401 A.2d 1031, 1039 (1979) ( Thus, the primary purpose of the doctrine of collateral estoppel is to protect an accused from the unfairness of being required to relitigate an issue which has o nce been determ ined in his favor by a verdict of a cquittal. ). Stated differently, collateral estoppel is based on the judicial policy that the losing litigant deserves no rematch after a defeat fairly suffered, in adversarial proceedings, on issues raised and decided. Colandrea v. Wilde Lake Community Ass'n, Inc., 361 Md. at 391, 761 A.2d at 909, citing Department of Human Resources v. Thompson, 103 Md. App. 175, 194, 652 A2d 1 183, 1192 (199 5). The Supreme Court has articulated the purpose of collateral estoppel in a similar manner: -4- Collateral estoppel, like the related doctrine of res judicata, has the dual purpose of protectin g litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preven ting nee dless litig ation. Parklane Hosiery, 439 U.S. at 326, 99 S. Ct. at 649, 58 L. Ed. 2d at 559, citing BlonderTongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328-29, 91 S. Ct. 1434, 1442-1443, 28 L. Ed. 2d 788, 799 (1971). It has concluded, moreover, that [a]pplication of both doctrines is central to the purpose for which civil courts have been established, the conclusive resolution of disputes within their jurisdictions. Montana, 440 U.S. 14 7 at 153 , 99 S. C t. at 973, 5 9 L. Ed . 2d at 21 7. Collateral estoppel is not concerned with the legal consequences of a judgm ent, ... only with the findings of ultimate fact ... that necessarily lay behind that judgment. Colandrea v. Wilde Lake Community Ass'n, Inc., 361 Md. at 391, 761 A.2d at 909, citing Burkett v. State, 98 Md. App. 459, 465, 63 3 A.2d 902, 90 5 (199 3), cert. denied 334 Md. 210, 638 A.2d 7 52 (19 94). It is, rather, a tool that is designed to facilitate and promote the most efficient and most produ ctive processing of case s by a court system. When applied effe ctive ly, it results in the most effective and productive allocation of judicial resou rces. Thus, collateral estoppel, true also of res judicata, is a judiciary s docket and workload control device; it is not a tool designed to assess the effect or effectiveness of foreign judgments. This is evide nt by the test that this Court has develope d to test the ap plicability of collateral estoppel in a given fact situation. That test is set out in Washington Suburban Sanitary Commission v. TKU Associates, 281 M d. 1, 18-19, 3 76 A.2d 505, 514 (1977): -5- 1. Was the issue decided in the prior adjudication identical with the one presented in the action in question? 2. Was there a final judgment on the merits? 3. Was th e party against w hom the p lea is asserted a party or in privity w ith a party to the prior adjudication? 4. Was the party against whom the plea is asserted given a fa ir opportun ity to be heard on the issue? A corollary to the rule of res judicata and collateral estoppel is, and has been, the theory of mu tuality. Pat Perusse, 249 Md. at 35, 238 A.2d at 102. That corollary is, estoppels must be mutual and one ... who himself was bound by the prior judgment cannot assert res judicata against him to whom it was adverse. Id. Its rationale is straightforward: Justice requires that every cause be once fairly and imp artially tried; but the public tranquility demands that having been once so tried, all litigation of that question, and between those parties, should be closed forever. It is also a most obvious principle of justice, that no man ought to be boun d by proceed ings to which he wa s a strang er. Cecil v. Cecil, 19 Md. 72, 79, 1862 WL 2345, *5 (1862). Thus, in its most rigid form, the mutuality requirement provided a party who had litigated and lost in a previous action an opportun ity to relitigate iden tical issues w ith new parties. Parklane Hosiery, 439 U .S at 327, 99 S. Ct. at 649, 58 L. Ed. 2d a t 559-560 . Moreo ver, [b]y failing to recognize the obvious difference between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception. Id. Like the ru les to which it is corollary, the theo ry of mutuality is also : -6- based upon policy an d pra ctica l nec essit y and justice ... and on the same grounds of policy and justice there wo uld be no o bjection to d eparting fro m it where the party affec ted has bee n given an adequate opportun ity to be heard either pe rsonally o r by repres entation . Pat Perusse, 249 Md. at 42, 238 A.2d at 106. Relevant to the policy and justice groun ds is the determination of the desirability of granting or imposing the benefit or burden of issue preclusion in situations where there is not a complete identity of parties. Welsh v. Gerber, 315 Md. at 517, 555 A.2d at 489. In that regard , it is clear that a critical d eterminan t is whether the party to be bound, estopped, had a full and fair opportunity to litigate the issue in questio n. Id.; Blonder-Tongue Laboratories, Inc. v. Univers ity of Illinois Foundation, 402 U.S. at 329, 91 S. Ct. at 1443, 28 L. Ed. 2d at 799. Another policy consideration was identified by the Supreme Court: whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. at 328, 91 S. Ct. at 1442, 28 L. Ed. 2 d at 799 . 1 1 The Supreme Court s response was emphatic, strongly suggesting that the answer to the question posited should be, no. Parklane Hosiery, 439 U.S. at 328, 99 S. Ct. at 650, 58 L. Ed. 2d at 560. The Court s response was: In any laws uit where a defenda nt, because of the mu tuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior ac tion, there is an arguable (contin ued...) -7- Fueled by the criticism of the mutuality principle and policy and justice concerns, the 1 (...continued) misallocation of resourc es. To the e xtent the de fendant in the second suit may not win by asserting, w ithout contra diction, that the plaintiff had fully and fairly, but unsuccessfully, litigated the same claim in the prior suit, the defendant's time and money are diverted from alternative uses--productive or otherwise--to relitigation of a decided issue. And, still assuming that the issue was resolved correctly in the first suit, there is reason to be concerned about the plaintiff's allocation of resources. Permitting repeated litigation of the same issue as long as the supply of unrelated defendants holds out reflects either the aura of the gaming table or a lack of discipline and of disinterestedness on the part of the lower courts, hardly a worthy or wise basis for fashioning rules o f procedure. Kerotest Mfg. Co. v. C-O-Two Co., 342 U.S. 180, 185 , 72 S. Ct. 219, 222, 96 L . Ed. 200, 204 (195 2). Although neither judges, the parties, nor the adversary system performs perfectly in all cas es, the require ment of d etermining whether the party against w hom an e stoppel is asse rted had a f ull and fair o pportunity to litigate is a most sig nifican t safegu ard. Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329, 91 S. Ct. 1434 , 1443, 28 L. Ed. 2d 789, 799-800 (1 971). -8- principle of non-mutual collateral estoppel2 relatively recently has developed, as an exception to the mutuality principle. After noting the exceptions and modifications that had been made to the theory of mutuality, over time, an d the rea sons th erefor, Pat Perusse, 249 Md. at 35-41, 238 A.2d at 102-105, this Court upheld the application of defensive nonmutual collatera l estopp el. Id. at 45, 238 at 107-108. Subsequently, acknowledging the validity of the criticism of the mutu ality doctrine, the Supreme Cou rt abandoned the mutuality requirement, also in th e case o f defe nsive n on-mu tual colla teral esto ppel. BlonderTongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. at 328-334, 91 S. Ct. at 14 34-14 45, 28 L . Ed. 2d at 799- 803. To be sure, the Court, in Parklane Hosiery, identified the difference between the use of non-mu tual collateral es toppel for defensive purposes and for offensive purposes and catalogued some of the problems that may be encountered when non-mutual collateral 2 In Parklane Hosiery Co ., Inc. v. Shore, 439 U.S. 322, 326 n. 4, 99 S. Ct. 645, 649 n. 4, 58 L. Ed. 2d 552, 559 n. 4 (1979), the Court observed: In this context, offensive use of collateral estoppel occurs when the plaintiff seeks to foreclose the defendant from litigating an issue the defendant has previously litigated unsuccessfully in an action with another party. Defensive use occurs when a defendant seeks to prevent a plaintiff from asserting a claim the plaintiff has previously litigated and lost against anothe r defen dant. -9- estoppel is used offensively. 439 U.S. at 329-331, 99 S. Ct. at 650-51, 58 L. Ed. 2d at 561562. Nevertheless , the Court did not preclude the use of offensive non-mutual collateral estoppel, rath er it: concluded that the preferable approach for dealing with these problems in the federal courts is not to preclu de the use o f offensiv e collateral esto ppel, but to grant trial courts broad discretion to determ ine wh en it sho uld be a pplied. ... The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensiv e collateral estopp el. Id. at 331, 99 S. Ct. at 651-52, 58 L. Ed. 2d at 562. The Court of Appeals discussed non-mutual collateral estoppel in Welsh v. Gerber Prods., Inc., 315 M d. 510, 5 55 A.2 d 486, supra, a case involving a certified question from the federal court which required the Court to address the attempted defensive use of nonmutual collateral estoppel. In addition to defining the two kinds of non-mutual collateral estoppel, id. at 517 n.6, 555 A.2d at 490 n. 6, and noting the pertinent developments, including the Supre me Cou rt s refusal, des pite its recogn ition of problems in its implementation, to preclude use of non -mutua l offen sive co llateral es toppel, id. at 517-18, 555 A.2d at 489-90, pertinent to this case, we said: Co ncep tuall y, there will be instances in which a party who has had the benefit of a full and f air adjudication of an issue should be bound by that adjudication, even in a subsequent proceeding involving a different party. The difficulty is, however, that there are many situations where application of the doctrine of nonm utual co llateral es toppel w ould be manif estly unfa ir. Id. at 517, 5 55 A. 2 d at 489 . The Court also emphasized the necessity that the party to be -10- bound must have had a full and fair opportunity to litigate the issue in ques tion, characterizing that requirement as [t]he fo undation of the ru le of nonmutual collateral estopp el. Id. at 518, 5 55 A.2d at 490. Accordingly, characterizing the Welsh v. Gerber case, the Court of Special Appeals correctly observes, that this Court has indicated that [non-mutual offensive collateral estoppel] may be emplo yed und er prop er circu mstanc es. Amchem I, 153 Md. App. at 112, 835 A.2d at 204. While it set out the test developed by this Court to determine the applicability of collateral estoppel, addressed some of the factors, enumerated the arguments of counsel on the point and reviewed some of the pertinent facts concerning the Virginia litigation, contrasting it to that in this case, id. at 108-115, 835 A.2d at 202-206, rather than determining the correctness of the trial cou rt s refusal to apply offensive non-mutual collateral estop pel, the intermediate appellate court dec ided the cas e on the ba sis of a full fa ith and cred it analysis,3 thus adopting one of the two arguments advanced by the appellees. 3 The majority characterizes the Court of Special Appeals consideration of the Constitutional full faith and credit issue as brief and suggests that that court also decided this case on the b asis of c omm on law collatera l estopp el. Rourke v.Amchem P roducts, Inc., ___ Md. ___, ___ , ___ A.2d ___, ___ (2004) [slip op. at 14]. While, when considered in the context of the entire discussion, the full faith and credit portion may have been brief, approximately 2 of the 10 1/3 pages devoted to the subject of Offensive (contin ued...) -11- 3 (...continued) Non-mutual Collateral Estoppel, Rourke v. Amchem. Products, Inc., 153 Md. App. 91, 108-118, 835 A.2d 193, 202 -208 (2003), the fact is, it was that discussion that was dispos itive. The reco rd does no t support the majority s sugg estion that the intermediate appellate court relied on common law collateral estoppel for the decision in this case. As indicated, the discussion o f offensiv e non-m utual collatera l estoppel co vered som e 10 1/3 pages. To be sure, the intermediate appellate court acknowledged the pedigree of collatera l estopp el, noting its comm on law beginn ings, id. at 109, 835 A.2d at 203, citing Collandrea v. Wilde Lake Community Ass n, Inc, 361 Md. 371, 387, 761 A. 2d 899, 907 (2000 ); how ever, the balanc e of the discuss ion, see 153 Md. App. at 113, 835 A.2d at 205, involved the review of the arguments of counsel and of the doctrine of non-mutual collateral estoppel and a discussion of Parklane Hosiery, and Welsh v. Gerber. Then, after stating that it was going to find use of the doctrine inappropriate to the circumstances of this case, 153 Md. App. at 113, 835 A.2d at 205, the Court of Special Appeals discussed the test for collateral estoppel, the Virginia Supreme Court decision and the arguments of counsel on the issue of the appropriateness of applying offensive non-m utual co llateral es toppel. Id. at 113-115, 835 A.2d at 205-206. The last portion of the discussion was introduced, as follows: We address the two arguments they (contin ued...) -12- The majority follows suit, agree[ing] with the intermediate appellate court that, under both a full faith and credit and a common law collateral estoppel analysis, Maryland is not required to give, and , indeed, ma y not ordinarily give , any greater preclusive effect to the Virginia judgment than Virginia would give it, and that, in resolving that issue, we must apply Virginia, not Maryland, collateral estoppel law. ___ Md. at ___, ___ A. 2d at ___ [slip op. at 14]. The majority, unlike the Court of Special appeals, may have discussed 3 (...continued) [presumably, the appellees] present that we find pertinent to this case: the effect of conflicting opinions and the proper application of Full Faith and Credit. Id. at 115, 835 A.2d a t 205. A fter rejec ting the c onflictin g prior o pinion s rationa le, id. at 115-116, 835 A.2d at 206, the court concluded: Although Maryland may not require mutuality of parties in actions invoking collateral estop pel, Virginia does. Full F aith and C redit commands that we apply Virginia law to determine th preclusive effect of the Amchem decision. Virginia would not permit appellants to invoke collateral estoppel in order to prevent appellees from relitigating the arbitrability of the dispute over the liability of CCR s Pro ducer Mem bers for he debts of former members. We, therefore, decline appellants invitation to giv e the Virgin ia decision g reater effec t than it wou ld have in that state. Id. at 118, 835 A.2d at 208. -13- common law collateral estoppel, at least from the federal perspective, nevertheless, it grounds its decision on the same basis as the intermediate appellate court. The common thread binding the majority and the Court of Special Appeals is the conclusion, reached by both, that, in this case, Maryland is required to f ollow the V irginia law o f collateral esto ppel. More particularly, the majority posits that its conclusion is required by the reasoning of the Supreme Court, which, it says, has made clear that, in determining the preclusive effect to be given to the judgm ent of a Sta te court, the cla im and issue preclusion rules of the State that rendered the judgment must govern. ___ Md. at ___, ___ A.2d at ___ [slip op. at 15.] It relies on Board of Public Works v. Columbia College, 84 U.S. 521, 21 L. Ed. 687 (1873), which it says first made the point, and subsequent Supreme Court cases, decided pursuant to 28 U.S .C. § 1738 , in which the Court a ddressed th e extent to w hich fede ral courts must give pr eclusiv e effec t to State court ju dgme nts. E.g., Kremer v. Chemical Construction Corp., 456 U.S. 461, 481-82, 102 S. Ct. 1883, 1897, 72 L. Ed. 2d 262, 2 80 (1982 ); Migra v. Warren City School Dist. Bd. Of Ed., 465 U.S. 75, 85, 104 S. Ct. 892, 898, 79 L. Ed. 2d 56, 64 (1984); Marrese v. American Academy of Orthopaedic Surgeons, 470 U. S. 373, 380, 105 S. Ct. 1327, 1332, 84 L. Ed . 2d 274, 28 1 (1984). N ot only are these cases con sistent with the Supreme Court s Constitutional full faith and credit cases, the majority submits, ___ Md. at ___, n. 8 and 9, ___ A.2d at ___, n. 8 and 9 [slip op. at 18-19, n. 8 and 9], but they have been followed by lower federal courts, state courts and are consistent with our cases. To demons trate the latter, the majority cites Weinberg v. Johns-Manville Sales Corp., 299 Md. -14- 225, 234, 473 A.2d 22, 27 (1984); Jessica G. v. Hector M., 337 Md. 388, 405, 653 A.2d 922, 931 (1995); Wernwag v. Pawling, 5 G. & J. 500, 5 07 (Md . 1833); Brengle v. McClellan, 7 G. & J. 434, 440-41 (Md. 1836); Madden v. Cosden, 271 Md. 118, 125, 314 A. 2d 128, 132 (1974). The proposition for which these cases stand, it says, ___ Md. at ___, n. 9, ___ A.2d at ___ n. 9 [slip op. at 19 n. 9], is, U nder princip les of full fa ith and credit, a s tate court is generally required to give judgments rendered in other states the sam effect that they have in the rendering state. Weinberg, 299 Md. at 234, 473 A.2d at 27. At the outset, I want to be clear, I do no t believe that c ollateral estopp el impacts, in any way, the effect of the Virginia judgment. That judgment remains valid and effective, and enforceable against the appellees, just as it would be in Virginia. Application of the doctrine offensively has, to be sure, collateral consequences, but those consequences do not result in the judgm ent not bein g given fu ll effect. Those collateral consequences are driven, not by a desire or inte nt not to give the judgm ent full faith a nd credit or effect, but by a policy rationale aimed at case /docket management and the economical and judicious use of scarce judicial resources, counter-balance d, of course, by a desire to ensure that justice is accomplished. That is the same purpose of the collateral estoppel policy adopted by Virgin ia, I wou ld subm it. By not permitting the use of offensive non-mutual collateral estoppel, Virginia does not render, or, indeed, intend to render, the judgment it entered invalid or ineffective as to the parties as which the judgment was entered, in this case, the appellees; it simply has -15- chosen to utilize its scarce judicial resources in a differen t manner th an Mar yland has, to relitigate issues alread y decided, pres umably bec ause, given its conceptio n of it, it believes to do so will serve the ends of justice. I certainly do not believe that the Virginia policy choice is tied to any sense that justice was not done in the case which resulted in the judgment that is the source of the issues sought to be used offensively. There is nothing, moreover, in this record to suggest that the Virginia collateral estoppel policy is premised on an intent to shield those with Virginia judgments from the stricter preclusive collateral estoppel policies of other States. In any event, to give a foreign jud gment fu ll faith and cre dit does not mean that the receiving court is compelled to subordinate its local policies to the policies and laws of the rendering State. Williams v. State of North Carolina, 317 U.S. 287, 296, 63 S. Ct. 207, 212, 87 L. Ed. 279, 284 (1942) ( Nor is there any authority which lends support to the view that the full faith and credit clause compels the courts of one state to subordina te the local policy of that state, as resp ects its domiciliaries, to the statutes of any other state. ). Critical to the achievement of the policy objective of collateral estoppel is ensuring that the party who will be bound b y the doctrine h as a fair and full opportunity to litigate the issue in question. While the appellees are unhappy with the result in the Virginia litigation, there is nothing in this record to indicate that th ey did not have a full and fa ir opportun ity to litigate the case . They have had the benefit of a review of the proceedings b y the State s highest court. And, of course, the Virginia de fendants, a s far as the re cord reflec ts, did not -16- try the Virginia case with a n expecta tion that, shou ld they lose, they w ould receive the benef it of the more lenient Virginia preclusion rule. Such an expectation simply is not, and would not have been, reasonable. In addition , I am pers uaded by Finley v. Kesling, 433 N.E .2d 1112 (Ill. App. 1982). 4 That a judgme nt has no c onstitutional claim to a greater effect in the state in which enforcement is sough t than it h ad in the state fro m wh ich it issu ed, the c ourt no ted, does not mean that a state cannot give greater effect to the adjudication of the issue therein than would the [rendering] state. Id. at 1117. It reasoned: Finley has cited no case, and we hav e found n one, wh ich holds tha t a state is barred either by the Full Faith and Credit Clause or by section 1738 of the United States Code of Judiciary and Judicial Proced ure (Titl e 28 U .S.C. s 1738), (which, enacted, pursuant to the constitutional mandate, requires that such acts, records and judicial proceedings have the same full faith and credit as in the courts of the state from which they were taken) from applying its own doctrine of collateral estoppel but instead must give effect not only to the judgment of the first state but to the rules of that state as to when collateral estoppel is to be applied. Id. The Finley v. Kesling court cited Hart v. American Airlines, 61 Misc.2d 41, 304 N.Y.S.2d 4 Althoug h acknow ledging tha t Finley v. Kesling, 433 N.E.2d 1112 (Ill. App. 1982) stands for the contrary proposition to that espoused by it, the majority dismisses it, noting that it is simply not persuasive in light of the overwhelming contrary authority. ___ Md. at ___ n.11, ___ A.2d at ___ n. 11 [slip op. at 24 n. 11]. The persuasiveness of an authority is not judged, however, by the numerical strength of its supporters, but rather by the logic of its rea soning . -17- 810 (Sup. Ct. 1969)5 and Clark v. Clark, 389 P.2d 69 (N ev. 1964) as recognizing that the forum state ma y apply its ow n rules o f collate ral estop pel. In Hart, the c ourt put it thusly: De fend ant's reliance on full faith and credit to def eat the appli cation of collateral estoppel herein is misplaced. This is not a situation where the judgmen t, as such, of the Texas court is sought to be enforced. Wha t is here involved is a policy determination by our courts that One who has had his day in court should not be permitted to litigate the question anew ... and, further, refusal to tole rate a cond ition where , on relatively the same set of facts, one fact-finder, be it c ourt or jury may find a party liable while another exonerates him leading to the inconsistent results which are always ways a blemish on a judicial system . ... It is in order to carry out these policy determinations in the disposition of cases in this jurisdiction that an evidentiary use is being made of a pa rticular is sue det ermina tion ma de in the Texas action. Id., 61 Misc. 2d at 44, 304 N.Y.S.2d at 813-814 (citations omitted). The Clark court reached a similar conclusion with respect to the effect of full faith and credit on the question of choice of law: 5 The majo rity is u nimpres sed b y Hart v. American Airlines, 61 Misc.2d 41, 304 N.Y.S.2 d 810 (Su p. Ct. 1969 ) because it is a trial court decis ion, involve d not with full faith and c redit, but com ity, as a federal co urt decision w as the prior d ecision, and it believes tha t it is inconsistent w ith a subseq uently decided New Y ork Cou rt of App eals case, Shultz v. Boy Scouts of America, Inc., 480 N.E .2d 679 (1 985). As in dicated, it is the analysis that co unts, not the le vel of cou rt. Notwiths tanding tha t the case is no t a full faith and c redit case, its ana lysis is relevant and instructive. N or do I agre e that it is in conflict with Shultz. -18- Howev er, we do not believe that the constitutional command of full faith and credit poses a choice of law problem. ... Rather, the mandate of full faith and credit to judgments is limited to their effect as res judicata, and should not be extended to include questions of choice of law which may later arise. Clark, 389 P.2d at 71 (citations omitted). I am not persuaded by the cases on which the Majority relies. I find many of them inapposite. In Columbia College, for example, the Virginia Court of Appeals, at that time the high est cou rt of V irginia, stated in its order that the judgment rendered by the Circuit Court was interlocutory and not final, and thus nonappealable. It was in this context that the Court commented: ... [T]he comp lainant, relying upon the decree of the court as evidence of his demand against Withers, invoking for it full faith and credit under the clause of the Cons titution, canno t object to the character which the highest court of Virginia has given to it, or insist that it is entitled to any other consideration or weight. No greater effect can be given to any judgme nt of a cou rt of one S tate in another State than is given to it in the S tate where render ed. Any other ru le would contravene the policy of the provisions of the Constitution and laws of the Un ited Stat es on th e subje ct. 84 U.S. at 529, 21 L. Ed. at 691 (footno te omitted). The case on which Columbia College relied, Suydam v. Barber, was to similar effect. Rather than having the limitation of the judgment noted in the court order, the law of Missouri clearly stated the limitation, thu s both the plaintiff and the defendant to the action were on notice of that limitation . In this case, there is neither a notation o f the effec t of the judg ment in the court order , nor is there a law to that effect passed by the Virginia Legislature. As the majority acknowledges, § 1738 requires federal courts to give the same preclusive effect to state court judgments as those judgments are given in the states in which -19- entered. ___ Md. at ___, ___ A 2d at ___ [ slip op. at 14-15 ]; Kremer, 456 U.S. at 466, 102 S. Ct. at 1889, 72 L. Ed. 2d at 270. By contrast, the courts of each State have the rig ht to determine the preclusion rules applicable to jud gments in that State. Theref ore, I do not agree that the analysis is the same. The Maryland cases and their reference to giving a foreign judgment the same effect that judgm ent has in the S tate from which it issued are not in consiste nt with my positio n. The effect to w hich they refer pertains to the judgment itself, not to any collateral rules or policy of that S tate as to wh en collateral e stoppel ma y be applied. T he point is well made by the Court in Brengle, wherein th e Court state d the scop e of the fu ll faith and cre dit requirement: the doctrine has never been carried further, than to give to the judgment of another State, the same conclusive e ffec t, and obligato ry for ce in ever y State in the Union, that it had in the State where it was rendered. 7 G. & J. at 439-40, 1836 WL at * 1. Stated differently, quoting 3d Story s Comm. on the Constitution U.S. 183: If a judgment is conclusive in the State where it w as pronou nced, it is equally conclusive every where. If re-examinable there, it is open to the same inquiries in every other State. It is therefore put upon the same footing as a dome stic judg ment. The terms faith and credit, as used in the Constitution and act of con gress, evide ntly point to the attributes and qualities, which such records an d judicial pro ceedings s hall have as evidence, and such appe ars to have b een the constru ction giv en to the m in the Com menta ries. Id. at 440, 1836 WL at * 4. The C ourt also op ined on w hat effec t does no t mean in th e full faith and c redit contex t: can it be supposed, that [the founding fathers] inten ded, or con templated to vest in Congress the power of giving to a judgment obtained in one State, all -20- the legal properties, rights, and attributes, when used in another State, to which it was entitled by the law of the State where it was rendered? We think that such could not have been the purpose or intention of those enlightened men who framed th at instrumen t; more espe cially, as such a pr inciple in its tendency and operation, might lead to a conflict and collision between the laws of the differen t States, in the administration of their internal policy, and domestic concerns; and it would in effect, put it in the power of one State, to pass laws to regulate and control the administration of assets in another State; which would be an anomaly in jurisprudence, and a violation of the genius and spirit of all our institutions. Id. at 441-442, 1836 WL at * 5. While I am inclined to believe, given the office of collateral estoppel and the fact that these appellees h ave once already litigated the identical issue, that the record in this case presents at least a good reason to apply the doctrine of offensive non-mutual collateral estoppel, at the very least, I w ould rema nd the case to the Cou rt of Specia l Appeal f or its review, on the me rits, unobscu red by full faith and credit and other such concepts, of the trial court s r efusal t o apply th e doctrin e. Judge Cathell joins in the views herein expressed. -21-
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