Wilde v. Mid-Century Insurance Co. , 1981 Utah LEXIS 855 ( 1981 )

STEWART, Justice:

Subsequent to receiving benefits from their no-fault insurer and obtaining a judgment against a third-party tortfeasor, plaintiffs brought this action against their no-fault insurer seeking additional no-fault insurance benefits in the amount of $6,543.50. The district court granted summary judgment in favor of the defendant insurer and dismissed plaintiffs’ action. Plaintiffs appeal that dismissal.

Carrielee Wilde was insured under her husband’s no-fault automobile insurance policy by Mid-Century. On March 24, 1978, she was injured in an automobile accident. Mid-Century paid her no-fault insurance benefits totaling $3,587.98, apportioned as follows: $889.48 for medical expenses; $1,402.50 for loss of wages; and $1,296 for loss of services. In an action against the tortfeasor — in essence against the liability insurer Nationwide Insurance Co. — for all damages incurred as a result of the accident, Carrielee was awarded $3,989 apportioned as follows: medical expenses $989; lost wages $2,000; lost future income benefits $-0-; and general damages $1,000. From the $3,989 judgment the court subtracted $3,587.98 received by plaintiff pursuant to her no-fault insurance contract. The money deducted was used to reimburse fully the no-fault insurer. Nationwide tendered plaintiff a check for the remaining amount of $401.02, plus interest. Plaintiff refused the tender.

Plaintiffs then brought the instant action against Mid-Century for payment of no-fault benefits pursuant to §§ 31-41-1 et seq., Utah Code Ann. (1953), as amended, claiming entitlement to benefits under the Act for which Carrielee had not been fully compensated, either by the prior no-fault payments or the judgment against the tort-feasor. Plaintiffs contend that they are now entitled to recover the maximum allowable no-fault benefits from their no-fault insurer notwithstanding the prior judgment awarding Carrielee damages for personal injuries against a third-party tort-feasor. Specifically, plaintiffs seek in this suit to recover full benefits for loss of wages and household services.

Plaintiffs also contend that Mid-Century, plaintiffs’ no-fault insurer, was not entitled to subrogation rights in their recovery from the tortfeasor. However, we do not address this issue because it is not properly before the Court. The issue arose as a result of the trial court’s judgment in the action against the tortfeasor. That judgment was not appealed and may not be attacked here.¹ We are therefore left this issue: are plaintiffs entitled to recover additional no-fault insurance benefits after having obtained a judgment against the tortfeasor?

Defendant contends that Jones v. Trans-America Insurance Company, Utah, 592 P.2d 609 (1979), is dispositive of this case. In Jones an injured party accepted some no-fault benefits from his own insurer and later entered into a settlement agreement which released the tortfeasor from all further claims based on personal injury and property damage. The opinion does not indicate whether household expenses were included in the settlement figure, but seems to assume as much. The injured person then sued his no-fault carrier for additional damages. This Court held that the action could not be maintained because in accepting the recovery from the tortfeasor, the plaintiff did so in lieu of any additional benefits to which he may have been entitled. A central concern was that the no-fault carrier’s right of subrogation was terminated by the settlement agreement. But compare Allstate Insurance Company v. Ivie, Utah, 606 P.2d 1197 (1980).

Jones does not control the questions here. Plaintiffs here did not give up all additional insurance benefits as a result of the judgment against the tortfeasor, as was the case in Jones.

The doctrine of collateral estoppel governs the resolution of the issues in this case. The purpose of that doctrine is to prevent the relitigation of issues which a party has once actually litigated. As the doctrine was originally formulated, it required that the parties be the same in the first and the second litigation. Mutuality of parties is no longer essential, however. This jurisdiction, following the landmark decision in Bernhard v. Bank of America Nat’l Trust & Savings Assoc., 19 Cal.2d 807, 122 P.2d 892 (1942), dispensed with mutuality in collateral estoppel cases. Searle Bros. v. Searle, Utah, 588 P.2d 689 (1978).

Accordingly, Mid-Century, even though it was not a party to the first action, may invoke the doctrine of collateral estoppel against plaintiffs, provided that the other requirements are met.

To invoke the doctrine, it must be demonstrated (1) that the issue decided in the previous action was identical to that tried in the subsequent action; (2) that the issue was decided in a final judgment on the merits; and (3) that the issue in the first case was competently, fully, and fairly litigated by the party against whom the doctrine is invoked. Searle Bros. v. Searle, Utah, supra, at 691. See also Teitelbaum Furs, Inc. v. Dominion Ins. Co., 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439 (1962). If these conditions are met, the party against whom the original judgment was rendered is bound, and so are those in privity with that party.

In the instant case, Mid-Century asserts collateral estoppel as a defense against plaintiffs based on the judgment rendered in the earlier action against the tortfeasor. In that action, plaintiffs had the opportunity to prove the full extent of their damages. Although they obtained a judgment against the tortfeasor, so that it cannot, in one sense, be said to be against the plaintiffs, that judgment was, for practical purposes, against them because their claim is that the judgment was too low and did not adequately compensate them. Therefore, we hold (1) that the earlier judgment was against the plaintiffs, even though the judgment made an award of money to them, and (2) that, as to the issues actually litigated, the prior judgment is binding.

We next determine whether the issues actually litigated in the first action are precisely the same as those raised in the instant action. The suit against the tort-feasor was brought after the one-year period for which no-fault benefits are payable under the Act. Section 31-41-6. The No-Fault Act requires the payment of certain benefits by the no-fault insurer but also preserves the right of an injured person to pursue a customary tort claim once certain damage thresholds are met, see §§ 31-41-2 and 31-4-9.

Plaintiffs’ first claim in the instant case is for lost wages under the No-Fault Act. In the tort action, plaintiff Carrielee Wilde was awarded $2,000 for lost wages. In that action she was entitled to recover for lost wages both past and future. Although that sum is less than what she claims she was entitled to, the amount recoverable on the tort theory included, although was not necessarily limited to, whatever she was entitled to for lost wages under the No-Fault Act. Therefore, that issue was litigated in the earlier case, and plaintiffs are therefore estopped from relitigating the issue.²

Plaintiffs also claim recovery for household expenses under the No-Fault Act. Application of the above principles results in a different outcome with respect to this issue. In proving damages in the tort action, the right of plaintiffs to recover for household expenses may not have been litigated in the earlier action. Under the No-Fault Act provisions in force during the one year immediately following Carrielee’s accident, disability benefits at the rate of $12 per day were payable “in lieu of reimbursement for expenses which would have been reasonably incurred for services that, but for the injury, the injured person would have performed for his household and regardless of whether any of these expenses are actually incurred.” [Section 31-41-6(l)(b)(ii)].³ [Emphasis added.] Therefore, plaintiffs were entitled to a sum for lost services for a period of time up to one year during which Carrielee was unable to perform household services due to disability, whether she actually incurred expenses for those services or not.

This benefit was a creature of the No-Fault Act and not dependent in any way on whether expenses for household services were actually incurred as a result of injuries sustained. In the tort action, plaintiffs, to recover damages for household expenses, would have had to prove that they suffered actual damages. Under the circumstances of that case, the finding of no damages by the jury may have been based on a failure to prove actual damages. Cf. Paul v. Kirkendall, 1 Utah 2d 1, 261 P.2d 670 (1953). Therefore, we cannot hold that the judgment in the tort action necessarily determined the amount, if any, to which plaintiffs are entitled under the No-Fault Act for household expenses.

The benefit provided under the No-Fault Act entitled plaintiffs to recover $12 per day for a maximum of 365 days simply by a showing that Carrielee was disabled so that she could not perform household services which, “but for the injury, [she] would have performed for [her] household.” But if the jury in Carrielee’s prior action made a determination of the number of days, if any, of Carrielee’s disability, that finding is final and binding, and plaintiffs’ claim for additional compensation for loss of services would be subject to that finding. If, however, no determination of disability were made in the earlier case, then neither res judicata nor collateral estoppel can prevent plaintiffs from litigating that issue in the instant case.⁴ Searle Bros. v. Searle, supra. On the record before us, that issue is not clearly resolved. Accordingly, we find no alternative but to remand the case to the trial court to determine that issue and what recovery, if any, plaintiffs are entitled to for household expenses.

Finally, we note that the no-fault statutory scheme, § 31-41-8, provides for payment of loss of services by the no-fault insurer on a monthly basis. The initial payment by Mid-Century to Carrielee, and her acceptance thereof, clearly does not terminate the contractual obligation to make additional payments for subsequently accrued claims. In light of the periodic nature of the payment required under § 31-41-8, Mid-Century must have contemplated further payments for loss of services to plaintiffs if required by the terms of the contract.

It is therefore necessary to reverse the summary judgment insofar as it applies to household expenses and to remand for further proceedings.

No costs awarded.

HOWE and OAKS, JJ., concur.

1 . For the procedure outlined by this Court to handle such problems, see Allstate Insurance Company v. Ivie, Utah, 606 P.2d 1197 (1980); Street v. Farmers Insurance Exchange, Utah, 609 P.2d 1343 (1980); and Dupuis v. Nielson, Utah, 624 P.2d 685 (1981).

2 . Had the court in the first case found no negligence, and not ruled on damages, that judgment might not constitute collateral estoppel in a subsequent action against the no-fault carrier.

3 . This subsection was amended in 1979 and now provides for:

(ii) a special damages allowance not exceeding $12 per day for services actually rendered or expenses reasonably incurred for services that, but for the injury, the injured person would have performed for his household commencing not later than three days after the date of the injury and continuing for a maximum of 365 days thereafter, but if the person’s inability to perform these services shall so continue for in excess of a total of fourteen days after the date of the injury, this three-day elimination period shall not be applicable.

This amendment became effective May 8, 1979, Laws of Utah, Chapter 119, § 1. Plaintiff Car-rielee Wilde was injured on March 24, 1978, and so the 365-day period mentioned in the statute would have ended on March 23, 1979. At that time Carrielee had a fully accrued right to the benefit mandated by the prior law, and her action here should be governed by that law.

4 . Since the record in the tort action, Wilde v. Caffey, is not before us, we do not know if the jury in that case made any determination as to the number of days of Mrs. Wilde’s disability.