dissenting: I find no support in the record for the majority’s conclusion that Beck raised the controlling issue for the first time on appeal. The controlling issue in the underlying disability action was whether Veatch’s disability claim was time barred. Beck argued in the disability action that “the statute of limitations did not begin to run until there was a breach of contract” and that occurred when KPERS denied the claim on June 30, 1981.
The district court rejected Beck’s argument, made on Veatch’s behalf, that “the disability payments are a continuing obligation and therefore each payment, when due, begins a separate period for the statute of limitations to run.” Beck cited Sharp v. Sharp, 154 Kan. 175, 117 P.2d 561 (1941), which the district court distinguished on the ground that Sharp’s installment payments were ordered as part of a final judgment. With regard to Veatch’s disability claim, the district court stated that the “issue is unresolved as to whether the installments were or are owed and, in addition, there is no judgment.” The court reasoned that Veatch’s cause of action accrued when his proof of loss was due 90 days after he became disabled. That date was December 16, 1980. Legal action had to be filed within five years. The action filed on February 27, 1986, was filed after the limitations period expired on December 16, 1985.
On appeal, Beck asserted that under the policy the first periodic payment was due after 180 days of continuous total disability, the proof of loss was due 90 days later, and no judicial action could be filed more than five years after the deadline for the proof of loss. He asserted that Veatch’s continuous total disability began on September 17, 1980, the day following his final day of employment. Applying that theory to Veatch’s circumstances, he *1086argued that the disability action was timely filed on February 27, 1986, because it was within five years and 270 days of the onset of continuous disability. The last possible day for filing the disability action would have been, pursuant to this reasoning, June 14, 1986.
As noted by the majority, the Court of Appéals affirmed the district court pursuant to Supreme Court Rule 7.’042 (1992 Kan. Ct. R. Annot. 35). The controlling issue in that appeal was whether the district court had correctly ruled that Veatch’s disability claim was time barred.
In the present malpractice action, the decision dismissing Veatch’s claim states that counsel for the parties “admitted in their statements to the court that the controlling issue of law to be determined in advance of trial is whether the [disability action] was timely filed.” The district court ruled that it was timely filed.
In dismissing the malpractice action, the district court stated that the “interpretation of the Court in Goff [v. Aetna Life and Casualty Company, Inc., 1 Kan. App. 2d 171, 563 P.2d 1073 (1977),] ... of the statutory provisions found in K.S.A. 40-2203(A)(7) cannot reasonably be distinguished from the case now before this court and the provisions of the policy relating thereto, and at issue herein.”
In the malpractice action, neither Beck nor the district court identified the problem with the disability action court’s analysis as being its choice as to which phrase of the “Written Proof of Loss” provision applied. The district court’s analysis tracks the argument made by Beck in the appeal in the disability action. The only departure is in the district court’s adding 30 days to the limitations period to accommodate the period, following the 180-day waiting period, for which the first monthly benefit payment would be payable. Thus, the district court figured that Veatch’s disability action could have been filed anytime within 300 days following the onset of continuous disability, i.e., on or before July 13, 1986.
Although in the disability action Beck did not cite Goff, the case on which he now relies, to the district court, he did so in the appeal. He filed an eight-page brief which contains citation to Goff for the proposition that the limitation , period for an action on installment benefits must be calculated with regard to the due *1087dates of each installment and each corresponding proof of loss. Although he fails, to note that the lower court used the inappropriate phrase from the “Written Proof of Loss” provision, it was obvious from the opinion which phrase the court relied on. In addition, on appeal, Beck cited the Goff case, which was ultimately determined to control the limitation issue in the present case, and he consistently argued that Veatch’s claim was not time barred.
The question of Beck’s raising an issue for the first time on appeal was never raised in the disability case or by Veatch in the present case.. Obviously, Beck does not raise an issue for the first time in the. present appeal since he is not the appellant. Veatch, not Beck, appeals the district court’s decision that his liability claim was timely filed. Nor did the Court of Appeals, whether overburdened or not, find that Beck raised an issue for the first time on appeal in the disability case.
The majority is not reversing the district court on the ground that Beck raised an issue for the first time in this appeal or in the appeal on behalf of Veatch in the disability case. Rather, the majority goes one step further, stating, “[hjaving failed to raise the point at trial, it could not be raised on appeal; thus, the trial court erred in allowing Beck to use a point he failed to use in the disability case as a defense in the malpractice action.” Simply stated, the majority rules that Beck is estopped from raising the issue in the present case. The majority cites no authority for its ruling.
Veatch does not specifically argue estoppel, but he implies that some principle of estoppel does or should apply. Res judicata is not the applicable estoppel form, as it is the “[rjule that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an. absolute bar to a subsequent action involving the same claim, demand or cause of action.” Black’s Law Dictionary 1305 (6th ed. 1990).
Collateral estoppel, at least in its traditional form, is not the appropriate estoppel form as it, like res judicata, involves the same parties. It is defined as follows: “When an issue of ultimate fact has been determined by a valid judgment, that issue cannot *1088be again litigated between the same parties in future litigation.” Black’s Law Dictionary 261.
The absence of a requirement of complete privity, however, is what some commentators denote as differentiating collateral estoppel from res judicata. In their treatise on legal malpractice, Mallen and Smith state that collateral estoppel is available where the following four questions can be answered affirmatively:
“(1) Was the issue decided in the prior adjudication identical to the issue presented in the present action? (2) Was there a final judgment on the merits? (3) Is the party against whom the defense is asserted a party or in privity with a party to the prior adjudication? (4) Will the application of the defense work an injustice?” 2 Mallen & Smith, Legal Malpractice § 17.13, p. 51 (3d ed. 1989).
Where applicable, the defense “prevents the party from relitigating the issue in a subsequent action.” 2 Mallen & Smith, Legal Malpractice § 17.13, p. 51.
Mallen and Smith recognize that an erroneous underlying judgment presents the “most difficult problem” to be resolved. In this regard, they state:
“Some courts have held that an attorney cannot collaterally attack a ruling of law. This view may be justified under circumstances where the attorney authored and urged that position to the client as being correct. Otherwise, it is obviously unfair to fault an attorney for the court’s error and preclude him from challenging an issue which may be the very basis for his alleged liability. The illogic and impropriety of such estoppel has been recognized.” 2 Mallen & Smith, Legal Malpractice § 17.13, p. 54.
One cited authority for the above-quoted paragraph is Johnson v. Baker, 11 Kan. App. 2d 274, 719 P.2d 752 (1986), a legal malpractice case based on dual theories of breach of contract and negligence. Baker represented Joyce Johnson in a divorce. When the former husband failed to perform the obligation stated in the journal entry of the divorce action, Johnson filed a motion to compel. It was denied on the ground that the journal entry was not binding on the former husband. Johnson sued Baker. The district court denied relief on the breach of contract claim on the ground that the journal entry was binding on the former husband. Damages were awarded on the negligence claim.
On appeal Johnson argued that, because the divorce court refused to enforce the journal entry, Baker should have been col*1089laterally estopped from claiming that he. obtained an enforceable agreement in the divorce action and therefore had not breached his contract with Johnson to do so. The Court of Appeals disposed of the argument,as follows:
“Plaintiffs argue thát the trial court erred in permitting a collateral attack on the earlier judgment. However, collateral estoppel only bars relitigation of an issue when the parties to the subsequent action are the same or in privity therein. Wells v. Davis, 226 Kan. 586, 589, 603 P.2d 180 (1979). Defendant was not' a party to the prior case, nor was he in privity with either party in the' proceeding brought to enforce the divorce decree. Collateral estoppel wás- not applicable.” 11 Kan. App. 2d at 276.
The Court of Appeals’ stated, reason for allowing relitigation of an issue decided in the divorce action was the lack of complete privity, although, as ,the commentators suggest, perhaps it was a desire to avoid any . unfairness which, .lies , at the heart of the decision.
In the present case, Veatch seeks to. prevent Beck from, collaterally attacking, the court’s determination that the disability claim was time barred. That is, the person who was a party to the previous action seeks to prevent the person who was not a party from collaterally attacking a matter previously adjudicated. It is the same line-up as in Johnson. Mallen and Smith cite Johnson for the proposition that estoppel should not apply where an attorney would be unfairly faulted for a court’s error.
Beck’s position is that the judgment in the disability áction should be re-examined because it is incorrect and allowing it to stand exposes him to liability for negligence he did not commit. He argues that “an error by the attorney is’a necessary ingredient in any legal malpractice action.” In this regard, Beck relies on the following:
“Since the determination of whether an attorney erred raises a question of law, the opinions of expert witnesses on the issue are not admissiblé evidence. Even though • the point of law may have been decided in the underlying action, the.'cobrt shobld not assume that the issue was properly decided nor that the. attorney is bound by the decision unless it was caused by the attorney’s misconduct.” 2 Mallen & Smith, Legal Malpractice § 27.10, p. 654.
This is not a case where the attorney’s conduct, or misconduct, caused the decision.: r.
*1090If Beck is correct that Veatch’s claim was timely filed, it would be unfair to hold Beck responsible for the error committed by the trial and appellate courts in the underlying disability action. He should not be precluded from collaterally attacking the decision rendered in the underlying disability case. Thus, the district court should not be reversed absent a finding by this court that the disability claim was time barred.
I agree with the district court that the rationale and result of Goff, 1 Kan. App. 2d 171, is applicable and requires the conclusion that the claim was timely filed. I would affirm the district court.
Holmes, C.J., and Herd, J., join in the foregoing dissenting opinion.