I am troubled by the majority's holding in its second assignment of error. All matters in this case were resolved on April 11, 1991, when judgment was granted in favor of appellant in the Court of Common Pleas of Cuyahoga County, Herman Bentleyv. Grange, case No. 193127. Relying on Hill v. Allstate Ins. Co. (1990), 50 Ohio St.3d 243, 553 N.E.2d 658, the court inBentley disposed of the case in accordance with the then prevailing law, finding that, because the tortfeasor's insurance policy limits were identical to that of the Bentleys, the Bentleys were not entitled to underinsured motorist coverage under their policy with Grange. Apparently, no appeal was filed from that trial court decision. Although Bentley was accurately decided at that time, two and one-half years later the Supreme Court of Ohio expressly overruled Hill in Savoie v. Grange Mut.Ins. Co. (1993), 67 Ohio St.3d 500, 620 N.E.2d 809, prompting appellants to seek additional recovery under the underinsured motorist portion of their policy pursuant to the Savoie holding. The trial court held that, while the doctrine of res judicata precluded the parents from bringing another action, the siblings of the decedent, as separate parties, were not precluded from bringing a wrongful death action for underinsured motorist coverage. In reaching that decision, it was necessary for the trial court to find that the parents, and Herman Bentley, in particular, brought the action individually and not as a representative of their decedent son's estate.
I respectfully dissent from the majority view, in that I believe that appellees are collaterally estopped from asserting their wrongful death claim. The Ohio Supreme Court inThompson v. Wing (1994), 70 Ohio St.3d 176, 183, 637 N.E.2d 917,922-923, established a three-prong test necessary for collateral estoppel: *Page 104
"Collateral estoppel applies when the fact or issue (1) was actually and directly litigated in the prior action, (2) was passed upon and determined by a court of competent jurisdiction, and (3) when the party against whom collateral estoppel is asserted was a party in privity with a party to the prior action." Id., citing Whitehead v. Gen. Tel. Co. (1969), 20 Ohio St.2d 108, 49 O.O.2d 435, 254 N.E.2d 10, paragraph two of the syllabus.
As the first two prongs are satisfied, it is the third prong of the Thompson test that is at issue here, i.e., whether the siblings were in privity to the parties of the first action.
First, I point out that R.C. 2125.02(A)(1) provides:
"[A]n action for wrongful death shall be brought in the name of the personal representative of the decedent for the exclusive benefit of the surviving spouse, the children, and the parents of the decedent, all of whom are rebuttably presumed to have suffered damages by reason of the wrongful death, and for the elusive benefit of the other next of kin of the decedent." (Emphasis added.)
The language contained in this statute mandates that the action for wrongful death be brought only by a personal representative. A major policy reason behind the enactment of this statute is so that defendants "`may not again be haled into court to answer for the same wrong.'" Burwell v. Maynard (1970),21 Ohio St.2d 108, 110, 50 O.O.2d 268, 269-270, 255 N.E.2d 628,629, quoting Douglas v. Daniels Bros. Coal Co. (1939), 135 Ohio St. 641,647, 15 O.O. 12, 15, 22 N.E.2d 195, 198. The Ohio Supreme Court in Ramsey v. Neiman (1994), 69 Ohio St.3d 508,511, 634 N.E.2d 211, 213, states:
"[G]ood policy reasons exist for requiring, as a condition precedent to the maintenance of a wrongful death action, that the person bringing the action be appointed by a court. Such a requirement eliminates the possibility that the defendant will face more than one lawsuit. It also allows for potential conflicts of interest to be revealed in advance of the filing of the action. And it ensures to some degree that the wrongful death action will be brought by a person who will act in the best interests of the beneficiaries, the real parties in interest."
I believe that the claim in the instant case is predicated upon a wrongful death. Keeping in mind R.C. 2125.02(A)(1) and its mandate, we look, first, at the fact that the probate court approved the settlement of a wrongful death claim made by the father and administrator, Herman Bentley. Whether the caption or style of the case showed Herman Bentley as administrator is irrelevant because the wrongful death action could have been brought only by Herman Bentley, administrator of the estate of Millard Bentley. The court, in its disposition of the matter, treated the case like a wrongful death case. Second, in the parents' action for declaratory judgment in the Cuyahoga County court, they unsuccessfully sought *Page 105 to recover underinsured motorist benefits for the wrongful death of their son. Further, in appellees' current action filed in the Franklin County Court of Common Pleas, Count One, paragraph 5, of appellees' complaint reads: "The decedent is survived by next of kin who have sustained damages pursuant to the Ohio Wrongful Death Statute as a result of the death of the decedent." Clearly, both actions sought to relitigate the wrongful death claim in the instant action. Appellees are collaterally estopped from bringing this claim because it is the same issue that was previously decided by the Cuyahoga County Court of Common Pleas.Tennant v. State Farm Mut. Ins. Co. (1991), 81 Ohio App.3d 20,610 N.E.2d 437. While siblings of the decedent are, by statute, entitled to pursue a wrongful death claim as "next of kin,"Shoemaker v. Crawford (1991), 78 Ohio App.3d 53,603 N.E.2d 1114, appellees may not bring a claim that is barred by collateral estoppel.
Further, appellees are collaterally estopped because they are, by way of privity, the same parties to the original action. "Privity" has been defined as "mutual or successive relationships to the same right of property, or such as identification of interest of one person with another as to represent the same legal right." Black's Law Dictionary (6 Ed. 1990) 1199. Assuming, as we would have this court do, that Herman Bentley brought a wrongful death claim in his capacity as administrator of Millard Bentley's estate, we should hold that appellees are in privity with Herman Bentley as administrator. "`It is the duty of a fiduciary of an estate to serve as representative of the entire estate. Such fiduciary, in the administration of an estate, owes a duty to beneficiaries to act in a manner which protects the beneficiaries' interests. We believe that this duty places the beneficiaries in privity with the executor.'" Weisberger v. Home Ins. Cos. (1991), 76 Ohio App.3d 391,394, 601 N.E.2d 660, 662-663, citing Elam v. HyattLegal Serv. (1989), 44 Ohio St.3d 175, 541 N.E.2d 616. The privity, then, is between the beneficiaries (the siblings) and the administrator (Herman Bentley). Under any reasonable definition, these parties were in "privity" and, therefore, are bound collaterally by the judgment of the Cuyahoga County Court of Common Pleas.
For the foregoing reasons, I would sustain the second assignment of error and reverse the judgment of the trial court. *Page 106