Recently read a decision from the First Appellate District that sends a clear message to lawyers electing to take voluntary dismissals – PROCEED WITH CAUTION!!!!
In Kiefer v. Rust-Oleum, plaintiff Colin Kiefer filed a complaint in the Circuit Court of Cook County against Rust-Oleum, an Illinois corporation. Kiefer, a resident of British Columbia, alleged that he was seriously injured when a can of aerosol spray paint sold by Rust-OIeum exploded. The incident happened while Kiefer was working for a company located in British Columbia. The complaint was in two counts, strict product liability and negligence. The case was then transferred to Lake County, pursuant to forum non conveniens motion.
While the case was pending, Rust-Oleum moved to dismiss, arguing that the law of British Columbia governed the claim, and British Columbia does not recognize the law of strict product liability. On November 5, 2003, the trial court agreed, and dismissed those counts based upon strict liability. Leave was given to plaintiff to file a second amended complaint. There was no reference to the order being “with prejudice” or “without prejudice”.
Kiefer ultimately did file amended pleadings, sounding in negligence. There were additional motions filed but plaintiff got past them. Just a few weeks before trial, plaintiff voluntarily dismissed his remaining negligence claims pursuant to 5/2-1009 of the Illinois Code of Civil Procedure.
In August, 2006, Keifer refiled his negligence claims in Cook County against Rust-Oleum and U.S. Can. Both defendants moved to dismiss, arguing the claims were barred by res judicata. The trial court agreed, and dismissed both counts “with prejudice” on September 28, 2008, applying the Supreme Court’s recent ruling in Hudson. Plaintiff appealed.
The Appellate Court first looked at the Hudson decision which held that where a plaintiff asserts multiple claims arising from the same set of operative facts in a single action and one of those claims is dismissed on the merits, res judicata will bar the plaintiff from not only refiling those claims but also any claims the could have been determined as part of that action.
The Court then considered, but dismissed Kiefer’s arguments that his claims were not barred – with some pretty broad language that trial lawyers should remember. Kiefer’s arguments that he was given leave to amend and that the order was not “with prejudice” made little impact. The Court noted that “…a trial court’s description of a final judgment as being “without prejudice” or “with prejudice” is not determinative. The Court emphasized that the res judicata impact of the November 5, 2003 order extends “…not only to every matter that was actually determined in the first suit, but also every matter that might have been raised and determined in that first suit.” Negligence claims could have been raised, and in fact were raised in the initial complaint. As a result, they were barred by res judicata
Moral of the story – res judicata is broader than you might think. Be afraid. Be very afraid.