The Illinois Supreme Court ruled that res judicata does not stop plaintiffs from alleging a defendant's apparent agency after their claim alleging actual agency was dismissed.

The Illinois Supreme Court has ruled that the doctrine of res judicata does not prohibit plaintiffs from refiling an action alleging doctors' apparent agency status with a hospital after the plaintiffs' previous claim alleging actual agency was dismissed by the trial court.

In so doing, the high court expressly overruled a recent appellate court ruling that plaintiffs in a medical-malpractice action raised two separate negligence claims when they alleged that doctors were either actual or apparent agents of the hospital.

"We reject the hospital's argument that actual agency and apparent agency are 'separate and distinct, stand-alone legal theories of recovery,' thus each constituting a separate cause of action," a unanimous supreme court stated in Wilson, et al., v. Edward Hospital, et al., 2012 IL 112898.

"If the hospital is correct that actual agency and apparent agency are separate claims, then plaintiffs did not split a single claim or cause of action when they voluntarily dismissed their complaint [alleging actual agency] and later refiled it [alleging apparent agency]," the court reasoned. "However, a theory of recovery is not a cause of action as this court has defined it.…Thus, 'claim' and 'cause of action' are synonymous."

Wilson facts and holding

In the Wilson case, plaintiffs filed a med-mal action in 2004 against defendants Edward Hospital, two doctors, and a nurse. The plaintiffs alleged the hospital was liable for the doctors' negligence because each doctor was an "agent in law or in fact" of the hospital.

The trial court granted the hospital's motion for partial summary judgment, finding that the doctors were not actual agents and the hospital therefore was not liable for the single agency claim contained in the plaintiffs' complaint.

In 2009, the plaintiffs voluntarily dismissed their action pursuant to section 2-1009 of the Code of Civil Procedure, and a year later they refiled the same negligence action, but this time asserted that the doctors acted as apparent agents of the hospital.

According to the supreme court decision, the hospital moved to dismiss the refiled action, claiming it was barred by res judicata because "(1) a final judgment on the merits was rendered on plaintiffs' actual agency claim; (2) the causes of action against the hospital pleaded in the original and refiled actions are identical; and (3) there is an identity of the parties." Thus, according to the hospital, since res judicata bars the refiling of every matter that might have been raised or determined in the first action, the plaintiffs' second action should be barred.

The trial court denied the hospital's motion to dismiss the second action, but certified the following question of law to the appellate court pursuant to Supreme Court Rule 308:

Are actual agency and apparent agency separate claims for purposes of the res judicata doctrine and the prohibition against claim-splitting…so that a summary judgment entered on the actual agency claims in plaintiff's [sic] initial suit bars plaintiff's apparent agency claims in this refiled suit, even in the face of [the trial court's] ruling that there is a question of fact as to the apparent agency claims?

The appellate court answered the question in the affirmative, relying in part on a similar appellate decision from 2011, and reversed the trial court. In Williams v. Ingalls Memorial Hospital, 408 Ill.App.3d 360, 944 N.E.2d 421 (2011), the appellate court held that vicarious liability based on apparent agency was a separate claim for purposes of res judicata from a claim of actual agency.

But in the case at hand, a unanimous supreme court disagreed.

"We conclude that Williams was incorrectly decided," the supreme court wrote in Wilson. "Without the underlying cause of action for negligence against the doctors, plaintiffs would have no legal claim against the hospital.…It is clear that plaintiffs could not sue the hospital for vicarious liability in any of its forms because vicarious liability is not itself a claim or cause of action."

The court noted that the purpose of the res judicata doctrine "is to protect the defendant from harassment and the public from multiple litigation." Since the cause of action brought by the Wilson plaintiffs was for negligence, and since vicarious liability is not itself a cause of action, there was no final ruling on the merits of plaintiffs' case when the trial court dismissed the actual agency claim.

"The trial court's grant of partial summary judgment on actual agency merely removed some of the allegations against the hospital from the case," the supreme court wrote. "Allegations of agency remain in the case. Plaintiffs still may be able to prove the hospital liable for negligence based upon their remaining allegations of apparent agency."

Since the trial court's grant of partial summary judgment did not dispose of the rights of the parties, the order was not final and plaintiffs were not barred from asserting their allegations of apparent agency in their refiled action, the court held.

Unanswered questions

Chicago attorney Karen Kies DeGrand, who defends professionals at the trial level and is president of the Appellate Lawyers Association, said the Wilson decision brings some clarity to the definitions of "claim," "cause of action," "theory of recovery," and "final order" for res judicata purposes. However, not all of those questions have been answered, she cautioned, and courts and lawyers are wise to analyze these issues with fresh eyes for every case they handle.

"The definition of claims has to be a flexible one," DeGrand said. "What seems like a definition that would be very helpful in one setting might not seem right when you look at it in another setting. There has to be some flexibility on a case-by-case basis."

Some questions of law seem like they should have easy answers, DeGrand said, but when the courts start to answer those questions, their answers might raise others.

"When you look at [the Wilson] case you see that maybe what should be a simple question isn't actually that simple," DeGrand said. "Is one count of a complaint necessarily a claim? Can there be separate claims under one theory of recovery?…If you have multiple negligence claims, is resolution of one of those claims a final order?

"I think the answer might be yes, but the case law is not definitive yet on that point," she said. "I think that's just the nature of the way the law develops."