NH Construction Law
  • Home
  • Blog
  • Links

#79:  Res Judicata and the Privity Element

7/21/2019

0 Comments

 
How many bites at the apple is a litigant given to prove his claim?  Generally, only one.  This principle finds expression in a legal doctrine called res judicata, also known as claim preclusion, which “prevents parties from relitigating matters actually litigated and matters that could have been litigated in the first action.”  Merriam Farm, Inc. v. Town of Surry, 168 N.H. 197, 199 (2015). “[I]t applies if three elements are met: (1) the parties are the same or in privity with one another; (2) the same cause of action was before the court in both instances; and (3) the first action ended with a final judgment on the merits.”  Id. (quotation omitted).  The doctrine applies not only to court cases but to arbitrations.  Finn v. Ballentine Partners, LLC, 169 N.H. 128 (2016).
 
In this context “privity with one another” is shorthand for a substantive legal relationship between a party to the prior action and a non-party, one which makes it fair to conclude that “the interests of the non-party were in fact represented and protected in the prior litigation,” Cook v. Sullivan, 149 N.H. 774, 779 (2003), such as “when a person controls or substantially participates in controlling the presentation or if a non-party authorizes a party in litigation to represent his or her interests,” id.   Representation of interests is to be distinguished from commonality of interests.  As noted in New Hampshire Motor Transport Ass’n v. Town of Plaistow, 67 F.3d 326, 328 (1st Cir. 1995), “normally something more is required for privity between the prior and present litigants than merely a common interest in the outcome.”
 
Is the relationship between a general contractor and its subcontractors enough to establish the necessary privity?  If we analogize the contractor–subcontractor relationship to the employer–employee relationship, the answer would seem to be No.  In Daigle v. City of Portsmouth, 129 N.H. 561, 573 (1987), the Court “reject[ed] privity by employment for the basic reason that an employer representing himself does not necessarily defend the interest of the employee whose behavior has become the occasion for legal action. There is, rather, a potential for conflict between their respective interests, and this case illustrates it well: the employer’s option to defend by claiming that its employee acted outside the scope of his employment is an option to defend the employer by sacrificing the employee.”  The same is true when a GC defends against an owner’s tort claims on grounds that its subcontractor is an independent contractor for whose negligence the GC bears no responsibility.
 
It follows that a subcontractor is not automatically stuck with the outcome when the GC botches the claim – unless he had a duty to intervene in the case to assert his own rights, or authorized the GC to spearhead his claims (see Blog #55: Pass Through Claims).  But he may still stick the owner with the outcome if the GC won the prior case.  Say an owner litigates claims and counterclaims with his general contractor, and then sues the subcontractors for the same alleged sins.  The subs should be able to invoke res judicata even though they were not parties to the first lawsuit.  This result is suggested by Fiumara v. Fireman’s Fund Ins. Companies, 746 F.2d 87, 92 (1st Cir. 1984), where an insured litigated a case against his insurers in state court, and later sued the insurer’s investigators and testing laboratory in federal court:
 
“While these appellees were not parties to the state suit, the application of res judicata and collateral estoppel, both in the federal courts and in New Hampshire, is no longer grounded upon mechanical requirements of mutuality.  Instead, the significant question is whether a party has had a full and fair opportunity for judicial resolution of the same issue.  That opportunity was palpably present in the state court proceedings. And, given the allegations of the federal complaint that [appellees] were each and all acting as agents of the insurers when they committed the putative misdeeds for which they have now been sued, they clearly qualify as persons in privity with FFIC and DMFIC.  Thus, the res judicata defense is unmistakably available to them.”

0 Comments



Leave a Reply.

    Author

    Frank Spinella

    Archives

    May 2025
    April 2025
    March 2025
    January 2025
    December 2024
    November 2024
    October 2024
    September 2024
    August 2024
    July 2024
    June 2024
    April 2024
    March 2024
    February 2024
    December 2023
    November 2023
    October 2023
    September 2023
    August 2023
    July 2023
    June 2023
    May 2023
    April 2023
    March 2023
    February 2023
    January 2023
    December 2022
    November 2022
    October 2022
    September 2022
    August 2022
    July 2022
    June 2022
    May 2022
    April 2022
    March 2022
    February 2022
    January 2022
    December 2021
    November 2021
    October 2021
    September 2021
    August 2021
    July 2021
    June 2021
    May 2021
    April 2021
    March 2021
    February 2021
    January 2021
    December 2020
    November 2020
    October 2020
    September 2020
    August 2020
    July 2020
    June 2020
    May 2020
    April 2020
    March 2020
    February 2020
    January 2020
    December 2019
    November 2019
    October 2019
    September 2019
    August 2019
    July 2019
    June 2019
    May 2019
    April 2019
    March 2019
    January 2019
    November 2018
    October 2018
    September 2018
    August 2018
    July 2018
    June 2018
    May 2018
    April 2018
    March 2018
    February 2018
    December 2017
    November 2017
    October 2017
    September 2017
    August 2017
    July 2017
    June 2017
    April 2017
    March 2017
    February 2017
    January 2017
    December 2016
    November 2016
    October 2016
    September 2016
    August 2016
    July 2016
    June 2016
    May 2016
    April 2016
    March 2016
    February 2016
    January 2016
    December 2015
    November 2015
    October 2015
    September 2015
    August 2015
    July 2015
    May 2015
    April 2015
    March 2015
    February 2015
    January 2015
    December 2014
    November 2014
    October 2014
    September 2014
    August 2014
    July 2014
    June 2014
    May 2014

    Categories

    All

    RSS Feed

Proudly powered by Weebly