Little v. V & G Welding Supply, Inc.

For the Court:

¶ 1. In this ease, the appellants challenge the lower court’s granting of a summary judgment. Because the appellants had every opportunity in the prior federal suit to litigate the claims they now raise and because the appellees-defendants are in privity with one of the original defendants in the federal court case, we conclude that this cause of action is barred under the doctrine of res judicata. We therefore affirm the judgment of the lower court.

I.

¶2. In July 1988, Marvin Joe Little and Charles Carter were working as welders for Mainstream, Inc. when an explosion occurred which resulted in the death of both men. There is much speculation as to the precise cause of the explosion; however, the fire department cited two possible causes:

I can find only two (2) possible causes for the explosion: (1) the oxy-acetylene rig was left on during lunch and the area filled with gas and ignited when the torch was re-lit, or (2) the victims may have been using the oxygen line to cool themselves down because of the heat, thus creating an oxygen enriched atmosphere.

¶ 3. The U.S. Coast Guard also conducted an informal investigation of the accident and discovered that the cutting torch line used to supply propylene gas for welding purposes was leaking shortly before the explosion and that the decedents knew the line was leaking.

¶4. After the welders’ tragic deaths, the appellants (Little and Carter) sued in federal court the propylene gas manufacturer (Chevron) and the bulk distributor of the gas (Liquid Air Corporation) under a theory of products liability. Chevron and Liquid Air Corporation filed a motion for summary judgment, which was granted by the district court and later affirmed by the Fifth Circuit Court of Appeals. See Little v. Liquid Air Corp., 37 F.3d 1069 (5th Cir.1994). The Fifth Circuit found that Little and Carter failed to adduce any evidence upon which a juror could determine that the deaths of the welders were caused by a defect in the product and by a failure to warn by the manufacturer and bulk distributor (the claims advanced by Little and Carter in the federal products liability action). Id. at 1079.

¶ 5. On September 24, 1993, Little and Carter filed a wrongful death action in the Circuit Court of Washington County, Mississippi against the downstream distributors of the gas, Mid-South Oxygen Company (Mid-South) and V & G Fire Extinguisher Service, Inc. (V & G). Mid-South and Y & G, in turn, filed third-party complaints against Liquid Air, the bulk distributor, asserting that they were entitled to indemnification from Liquid Air Corp. in case a judgment of liability was rendered against them. The trial court agreed and granted the motion for summary judgment against Liquid Air regarding indemnification. Mid-South and V & G also filed motions for summary judgment against the plaintiffs’ claims, arguing that res judica-ta barred the plaintiffs’ cause of action and, alternatively, that Liquid Air Corp. had been ordered to indemnify them in the event they were held liable. The trial court granted this motion for summary judgment also.

¶ 6. Aggrieved, Little and Carter perfected timely appeal of the lower court’s granting of summary judgment to this Court.

II.

¶ 7. The issue before this Court is whether the federal court case precluded the instant complaint filed by Little and Carter in the circuit court of Washington County under the doctrine of res judicata.

¶8. The doctrine of res judicata reflects the refusal of the law to tolerate a multiplicity of litigation. Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa.Super. 225, 464 A.2d 1313, 1316 (1983). It is a doctrine of public policy “designed to avoid the ‘expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance on judicial action by minimizing the possibilities of inconsistent decisions.’” Montana v. United States, 440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210 (1979). Res judicata bars all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action. Estate of Anderson v. Deposit Guaranty National Bank, 674 So.2d 1254, 1256 (Miss.1996).

¶ 9. For the bar of res judicata to apply, four identities must be present: (1) identity of the subject matter of the action; (2) identity of the cause of action; (3) identity of the parties to the cause of action; and (4) identity of the quality or character of a person against whom the claim is made. Dunaway v. W.H. Hopper & Associates, Inc., 422 So.2d 749, 751 (Miss.1982); Estate of Anderson, 674 So.2d at 1256. Here, all four of the required identities are present, and the doctrine of res judicata is therefore applicable and bars the instant action.

¶ 10. First, the subject matter of the federal suit and- the subject matter of the instant cause of action is the same—the deaths of the welders. The second identity of the cause of action is likewise the same. In this ease and in the federal suit, the cause of action concerns determining which company is liable for the welders’ deaths.

¶ 11. Even though the federal suit was labeled a products liability case premised upon a design defect and the instant suit is deemed a wrongful death action based upon a manufacturing defect, this distinction does not destroy the second identity. In Riley v. Moreland, 537 So.2d 1348 (Miss.1989), this Court explained that “[identity of the cause of action exists when there is a commonality in the ‘underlying facts and circumstances upon which a claim is asserted and relief sought from the two actions.’ ” Id. at 1354 (citing Walton v. Bourgeois, 512 So.2d 698, 701 (Miss.1987)). Whether Little and Carter claim that the cause of action was attributable to a design defect or a manufacturing defect, the crucial fact is that they are seeking to hold an entity liable for the deaths of the welders. They rely on the same facts and circumstances that were alleged in the federal suit, i.e., the release of a dangerous gas caused an explosion which killed two men. In light of their reliance on the same facts and circumstances, the identity of the cause of action is the same, for when there is a commonality of the underlying facts and circumstances the second identity is met. Riley, 537 So.2d at 1354.

¶ 12. Similarly, this Court has stated that “[wjhere one has a choice of more than one theory of recovery for a given wrong, the party may not assert them serially in successive actions but must advance all at once on pain of the bar of res judicata.” Walton, 512 So.2d at 702. Recently in City of Jackson v. Lakeland Lounge, 688 So.2d 742, 749 (Miss.1996), we cautioned that a party cannot reliti-gate a matter and attempt to elude the bar of res judicata by raising a new legal theory. There, the City of Jackson was involved in a zoning ordinance battle with the owners of an adult entertainment lounge (Lakeland Lounge). Lakeland Lounge challenged the constitutionality of the zoning ordinance in federal court. Lakeland Lounge also filed suit in a district court here. The City argued, however, that because Lakeland Lounge had generally challenged the constitutionality of the ordinance in the federal court, it was precluded from raising additional constitutional issues before this Court under the doctrine of res judicata, even though the issues were more specific.

¶ 13. We reasoned that, while the federal court cases dealt with the constitutionality of the City’s public policy consideration involving the secondary effects of adult entertainment, the underlying issue was still topless entertainment. Id. at 749. As such, this Court concluded that Lakeland Lounge’s subsequent suit in the Mississippi district court was barred under the theory of res judicata because the party should have raised its specific constitutional challenge to certain language in the ordinance when it generally challenged the constitutionality of the City’s conduct and intentions in the federal court. We refused to allow Lakeland Lounge to relitigate the same issue and to attempt to elude the doctrine of res judicata by raising a new legal theory. Id.

¶ 14. Such is the case here. By deeming the instant cause of action a wrongful death action premised upon a manufacturing defect instead of a design defect as alleged in the federal suit, Little and Carter attempt to avoid the doctrine of res judicata. We did not allow this in Lakeland Lounge, and we cannot allow it here. We find that the second identity of cause of action is satisfied under these facts.

¶ 15. The third factor that must be present in order for res judicata to apply is identity of the parties to the cause of action. To satisfy this identity element, strict identity of parties is not necessary. A nonparty defendant can assert res judicata if it is in “privity” with the named defendant. Russell v. SunAmerica Securities, 962 F.2d 1169, 1173 (5th Cir.1992) (citing Nevada v. United States, 463 U.S. 110, 129, 103 S.Ct. 2906, 2917-18, 77 L.Ed.2d 509 (1983); Baylor v. HUD, 913 F.2d 223, 225 (5th Cir.1990)). There is no prevailing definition of privity that can automatically be applied to all cases. Olivarez v. Broadway Hardware, Inc., 564 S.W.2d 195, 199 (Tex.Civ.App.—Corpus Christi 1978). “ ‘Privity’ is ... a broad concept, which requires us to look to the surrounding circumstances to determine whether claim preclusion is justified.” Russell, 962 F.2d at 1173. The comment to section 83 of the Restatement of Judgments (1942) instructs that:

Privity is a word which expresses the idea that as to certain matters and in certain circumstances persons who are not parties to an action but who are connected with it in their interests are affected by the judgment with reference to interests involved in the action, as if they were parties. The statement that a person is bound ... as a privy is a short method of stating that under the circumstances and for the purpose of the case at hand he is bound by ... all or some of the rules of res judicata by way of merger, bar or collateral estop-pel.

Restatement of Judgments § 83 cmt. (1942).

¶ 16. Although the named defendants in the instant matter are different from the named defendants in the federal action, this Court finds that Mid-South and V & G are the privies of Liquid Air, the bulk distributor originally sued in the federal cause of action. Understanding how this Court reaches this determination is not difficult when the facts of this matter are considered.

¶ 17. Chevron, the manufacturer of the propylene gas, sold the gas to Liquid Air. Liquid Air repackaged the gas and sold it to Mid-South, which in turn sold it to Y & G. V & G ultimately sold the gas to Mainstream, the employer of the deceased welders. In the federal court case, it was determined that the gas sold to Mainstream by V & G carried Liquid Air’s name and warnings. In addition, the president of V & G, Inc., Roy Pur-vis, submitted an unrefuted affidavit which stated that the propylene gas was delivered to V & G in a sealed, prepackaged container, that V & G was not provided an opportunity to inspect the propylene gas product, and that the product was not altered, changed, or modified prior to its delivery to Mainstream by V & G.

¶ 18. Mid-South and V & G fall squarely within the “chain of sale” of the gas and are in privity with Liquid Air due to their relationship as downstream distributors of a product repackaged by and sold under Liquid Air’s name. See Thompson v. Karastan Rug Mills, 228 Pa.Super. 260, 323 A2d 341 (1974) (recognizing that a manufacturer— supplier of goods stands in “vertical privity” in the “chain of sale” to the retailer and purchaser); see also West v. Kawasaki Motors Manuf. Corp., 595 So.2d 92 (Fla. 3d DCA 1992) (noting the weight of authority precludes successive suits in products liability cases against parties in the distribution chain of a product — the manufacturer, the wholesale distributor, and the retailer — when based on the same claims and underlying facts).

¶ 19. Mid-South and V & G’s dealings with the propylene gas were attenuated at best. These companies merely passed along Liquid Air’s gas in the “chain of sale.” Indeed, the trial court’s granting of indemnification by Liquid Air if Mid-South and V & G were held accountable for the welders’ deaths buttresses our determination that Mid-South and V & G are Liquid Air’s privies. Thus, the third identity of parties is satisfied as well.

¶ 20. The final identity, the quality or character of the person sued, is likewise satisfied under these facts. Mid-South and Y & G are distributors — retailers of the propylene gas. Liquid Air is a bulk distributor as well. It is obvious that the quality or character of these companies are, for the most part, the same for purposes of res judicata. The four identities that must be present in order for the doctrine of res judicata to apply are satisfied. As such, the instant cause of action was properly barred.

CONCLUSION

¶ 21. While the result is harsh, it is nevertheless necessary and proper, for the well established doctrine of res judicata must, when appropriate, be applied even in a case such as this one. The plaintiffs chose a federal forum and lost. They are precluded by law from trying the matter again in the courts of our state. Based upon the reasons set out above, we affirm the lower court’s granting of a summary judgment in favor of Mid-South and V&G.

¶ 22. AFFIRMED.

PRATHER, P.J., and PITTMAN, JAMES L. ROBERTS, Jr., SMITH and MILLS, JJ., concur.

DAN LEE, C.J., dissents with separate written opinion joined by SULLIVAN, P.J., and MeRAE, J.

MeRAE, J., dissents with separate written opinion joined by DAN LEE, C.J.

. Mid-South and V&G also assert the defense of collateral estoppel. We decline to reach this issue, however, in light of our disposition of this matter under the doctrine of res judicata.