Slaughter, J.
The Indiana Comparative Fault Act does not apply to “tort claims” against government defendants. But it does require the factfinder to consider the fault of “all persons who caused or contributed to cause” the plaintiff’s alleged injury. Here, after obtaining a judgment in Lake County against a non-government defendant for injuries sustained in a highway collision, the plaintiff sued again in Monroe County, seeking relief against other defendants (both government and non-government) for injuries arising out of the same accident. We hold that the claims asserted in Monroe County are barred by the doctrine of issue preclusion. To avoid this result, a plaintiff seeking tort damages from both government and non-government defendants must sue all such tortfeasors in one lawsuit.
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Davidson raises two issues on appeal. First, she argues the trial court erred in dismissing her action under doctrines of claim splitting (also known as claim preclusion) and collateral estoppel (also known as issue preclusion). We hold that claim preclusion does not apply here, but issue preclusion does, and the trial court was correct in dismissing her action on the latter ground. Second, she argues the court erred in refusing to treat the Rule 12 motions as motions for summary judgment, in dismissing her action with prejudice, and in violating her due-process rights under the Fourteenth Amendment. We hold there was no error. The court was not obliged to review the Rule 12 motions as motions under Rule 56. And it was entitled to dismiss the action with prejudice, so it did not violate her due-process rights.
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The trial court, though, was correct in dismissing the Monroe County action based on issue preclusion. Issue preclusion bars relitigating the same fact or issue when that fact or issue was necessarily decided in a prior lawsuit by a court of competent jurisdiction. Nat’l Wine & Spirits, Inc. v. Ernst & Young, LLP, 976 N.E.2d 699, 704 (Ind. 2012) (holding defensive collateral estoppel barred plaintiff’s claim). The party to be estopped must also have been a party (or its privy) in the prior suit. Ibid. Here, the defendants argue that Davidson is barred from litigating the negligent cause of her injuries and damages in Monroe County because this issue was necessarily adjudicated in Lake County. We agree. Under our comparative fault act, Ind. Code ch. 34-51-2, the Lake County court determined, conclusively, that only J Trucking was at fault for Davidson’s injuries.
When applying issue preclusion to actions under the Act, we embrace the approach of our court of appeals in Bornstein v. Watson’s of Indianapolis, Inc., 771 N.E.2d 663, 666 (Ind. Ct. App. 2002). Bornstein held that because the Act requires the trial court to apportion 100 percent of the fault for both parties and nonparties, a judgment under the Act necessarily adjudicates the negligent cause or causes of a plaintiff’s alleged injuries in their entirety. Ibid. Under the Act, plaintiffs can recover damages only from named defendants. Defendants, in turn, can limit their own liability to plaintiffs by naming nonparties that contributed to plaintiffs’ loss. The jury must determine “the percentage of fault of the claimant, of the defendants, and of any person who is a nonparty.” Ind. Code § 34-51-2-8 (applies to two or more defendants); id. § 34-51-2-7 (single-party defendant). The jury then multiplies the percentage of fault by the claimant’s total damages regardless of fault and enters a verdict against each defendant for its share of the damages. Ibid. When the action is tried without a jury, the court sitting as factfinder must award damages according to the same principles specified for juries. Id. § 34-51-2-9. The result is that a single action under the Act necessarily adjudicates all the liability and damages for the plaintiff’s alleged injury. Bornstein, 771 N.E.2d at 666.
By establishing a system that apportions all liability and damages in the same lawsuit, the Act functionally requires plaintiffs to name all defendants in a single suit. Otherwise, serial suits against different tortfeasors in connection with the same injury could lead to inconsistent judgments. Id. at 667. For example, a Monroe County judgment apportioning any fault to Davidson or the six defendants here would be at odds with Lake County’s assignment of all fault to J Trucking. The Act does not countenance such inconsistencies. Tort claimants in a later lawsuit are thus foreclosed from recovering from tortfeasors omitted from the first lawsuit. Ibid.
At the same time, defendants bear the burden of naming non-parties against which the jury can apportion fault.“…
Here, both the Lake County and Monroe County lawsuits are subject to the Act because in both suits Davidson has sought damages for injuries to her person resulting from the collision. The Act “governs any action based on fault that is brought to recover damages for injury or death to a person or harm to property”. I.C. § 34-51-2-1(a). In the Lake County action, after a bench trial, the trial court found Nicholson’s negligence, which it imputed to his principal, J Trucking, was a proximate cause of Davidson’s claimed injuries. The court apportioned all fault to J Trucking. The court found only Nicholson a proximate cause of Davidson’s injuries, attributed all of Davidson’s damages to Nicholson’s negligence, and entered a verdict against J Trucking for the full judgment amount. The Lake County court could not apportion fault to any Monroe County defendant named below because none was a party or named nonparty in Lake County. In effect, then, Davidson seeks to relitigate in Monroe County the apportionment of fault already adjudicated in Lake County.
Davidson counters that defensive issue preclusion does not apply here because she did not “lose” her suit in Lake County. We disagree. Defensive issue preclusion, to be sure, applies when the plaintiff previously litigated the issue and lost. Hayworth v. Schilli Leasing, Inc., 669 N.E.2d 165, 167 n.3 (Ind. 1996). But relevant here, when a plaintiff fails to name a potential defendant in an action under the Act, as Davidson failed to do in Lake County, the plaintiff “loses” against the unnamed defendant by failing to obtain an allocation of fault against that defendant. For example, in Bornstein, defensive issue preclusion barred the plaintiff’s wrongful-death claim against the later-sued defendant because 100 percent of the fault had been apportioned in a prior suit the plaintiff brought for the same underlying incident, leaving no fault to apportion to the subsequent defendant. 771 N.E.2d at 666. In suits brought under the Act, “a plaintiff is obliged to name all alleged joint tortfeasors as defendants in one suit or face the possibility of being estopped from pursuing a remedy against the unnamed tortfeasor in a subsequent lawsuit.” Id. at 667. Thus, Davidson really did “lose” on the issue of whether to apportion any fault to persons omitted as defendants or non-parties in Lake County.
Next, Davidson argues that even if the Lake County suit necessarily adjudicated who caused the injuries of which she complains, that suit could not adjudicate any such cause vis-à-vis the State and the department because government tort claims are excluded from the Act. Again, we disagree.
The Act’s plain language shows it applies here to the Monroe County suit and to all its defendants, including the government defendants…
While the Act thus applies to “actions” against government defendants, it does not apply to “tort claims” asserted within such actions against government defendants. “This chapter [the comparative fault act] does not apply in any manner to tort claims against governmental entities or public employees under IC 34-13-3[.]” Id. § 34-51-2-2 (emphasis added). But the jury must nevertheless consider the fault of “all persons who caused or contributed to cause the alleged injury” regardless of whether they could be named as parties. Id. §§ 34-51-2-7(b)(1), 34-51-2-8(b)(1). Thus, if one claim is subject to the Act, the method of apportioning fault requires joinder of all claims against persons “who caused or contributed to cause the alleged injury” for full apportionment of fault. Ibid.
In practice, when a plaintiff brings a mixed-theory case that alleges both government and non-government defendants are at fault for the plaintiff’s injuries, the Act applies to require the jury to apportion a percentage of fault and damages to all defendants and nonparties. But this apportionment of damages has no effect on the underlying government tort claims, which are still governed by common-law principles such as contributory negligence.
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Government defendants are not excluded from actions (as opposed to claims) governed by the Act. Relevant here, that means the Lake County court needed to consider the fault of both the State and the department of transportation if Davidson wanted to recover from them. Thus, the apportionment of fault solely to J Trucking in Lake County necessarily determined that these government defendants had no fault—and thus no liability—to Davidson for purposes of issue preclusion.
A court applying issue preclusion must also consider (1) whether the party against whom the prior judgment is being asserted—here Davidson—had a full and fair opportunity to litigate the issue in the first suit; and (2) whether it would be unfair under the circumstances for the Monroe County defendants to use issue preclusion against her in the second suit. Sullivan v. Am. Cas. Co. of Reading, Pa., 605 N.E.2d 134, 138 (Ind. 1992). Davidson argues a question of fact remains on whether issue preclusion should apply under these two factors. We disagree.
First, because Davidson was able to discover the defendants through reasonable, diligent investigation before obtaining a judgment in Lake County, she had a full and fair opportunity to litigate against the defendants there…
Second, it is not unfair on this record to find Davidson’s Monroe County claims barred by issue preclusion….
Davidson also argues that financial and health considerations make it unfair to apply issue preclusion here. But materials supporting these considerations were not before the trial court, and we decline to consider them here in the first instance. The trial court considered only the pleadings, certain filings in the Lake County action, the tort-claim notice, and the public-records request. None of these documents concern her financial and health considerations when she sued only J Trucking in the first suit.
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For these reasons, we affirm the trial court’s judgment dismissing the Monroe County action with prejudice and denying Davidson’s motions to correct error and to amend her complaint.
Rush, C.J., and Massa and Molter, JJ., concur.
Goff, J., concurs in the judgment with separate opinion
Goff, J., concurring in the judgment.
I agree with the Court that Kathryn Davidson is precluded from relitigating the allocation of fault in this case. However, in the course of ruling for the State, I believe the Court is making new law in a vexingly complicated area: the interplay between Indiana’s common-law and comparative-fault negligence schemes. Our predecessors recognized the dangers lurking here. I would not lay down a hard and fast rule of procedure in mixed-theory cases involving both private and governmental defendants. Rather, I would encourage all parties to make use of the flexibility provided by the Comparative Fault Act and to consider how the difficulty of litigating cases like this may be eased.
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