dissenting.
I write this dissent because I believe the majority interprets our res judicata statute too broadly. According to the majority, if a party chooses to bring certain permissive transactionally-related claims, he must bring all such claims he has or be barred by res judicata.
There are three requirements for the application of res judicata: that the parties to both suits be identical, that the subject matter of both suits be identical, and that the party to be precluded have had a full and fair opportunity to litigate. This case does not meet the first and third criteria.
Identity of Parties
In this case, the majority states that the parties are identical. I disagree. There are three suits in this case: the suit between the bus-passengers and Mr. Vineyard, MARTA, and the Hi-Lift defendants (primary suit), the cross-claim by Mr. Vineyard, and Mr. Vineyard’s personal injury claim. For res judicata, there must be at least two suits. In suit one, the parties to be later precluded must have been adverse. Adversity goes to the first and third criteria. In suit two, if the three requirements for res judicata are met, the party will be precluded. Mr. Vineyard and the Hi-Lift defendants were co-parties in the primary suit. To involve identical parties, a second suit would have to be an adversarial proceeding between the plaintiff-passengers and Mr. Vineyard. Res judicata only applies to adverse parties, parties seeking affirmative relief or parties from which affirmative relief is sought. Friedenthal, Kane, and Miller, Civil Procedure, § 14.13.
The majority contends that Mr. Vineyard’s claim for indemnity made him adverse to the Hi-Lift defendants; that it was suit one. There are two reasons why this cannot be so. First, the settlement between the passengers and the co-defendants extinguished the claim for indemnity. Second, a claim for indemnity or contribution cannot *461be looked upon separately from the underlying cause of action.
A claim for indemnity or contribution dies with the primary cause of action. No dismissal is necessary. This statement only holds true in the situation where, as here, a co-defendant seeking indemnity is dismissed without liability from the primary suit. Mr. Vineyard had no claim to dismiss against the Hi-Lift defendants once the suit against him was dismissed. His claim for indemnity no longer existed. There was no reason for Mr. Vineyard not to accede to the MARTA and Hi-Lift attorneys’ request that he dismiss his claim with prejudice. He had nothing to dismiss “with prejudice.”
Additionally, indemnity is a defensive measure. It cannot be passed upon until the determination of the underlying action. It is wholly identifiable with the first action, without which it could not exist.
Thus, the suit between the passengers and Mr. Vineyard, MARTA, and the Hi-Lift defendants must be suit one for res judicata purposes. The claim for indemnity did not create the necessary adversity, and the cross-claim was rendered moot by the dismissal of the primary cause of action. Mr. Vineyard did not seek affirmative relief in his cross-claim, thus the Hi-Lift defendants were not adverse to him.
Full and Fair Opportunity to Litigate
The majority analogizes this case to the situation in which a plaintiff seeking affirmative relief sues a defendant, an adverse party. In that situation, the plaintiff must assert all transactionally-related claims to avoid preclusion by res judicata. OCGA § 15-12-40. Likewise, according to the majority, a co-defendant need not bring a cross-claim for indemnity or contribution, and if he does not, he can bring it later. His only other choice is to possibly compromise his claim for affirmative relief and bring everything at once. Thus, a co-defendant must choose either to bring a premature claim or forego a legitimate claim to indemnity or contribution. Such a choice directly contradicts the majority’s third criterion for the application of res judicata, that the party have a full and fair opportunity to litigate.
(1) The majority cites Rowland v. Vickers, 233 Ga. 67 (209 SE2d 592) (1974) and Marchman &c. v. Nelson, 251 Ga. 475 (306 SE2d 290) (1983) for the proposition that a voluntary dismissal “with prejudice” between co-parties seeking indemnity or contribution should have the same preclusive effect as a court-ordered dismissal between a plaintiff and a defendant. Neither case supports this reasoning. In both cases, as the majority points out, the dismissal was effected by court order. The majority overlooks the fact that in both cases, the plaintiff, seeking affirmative relief, was the one precluded by the preceding dismis*462sal. For support, the majority states that three voluntary dismissals under OCGA § 9-11-41 (a) operate as an adjudication on the merits for res judicata purposes. But OCGA § 9-11-41 (a) applies to “plaintiffs” seeking affirmative relief from adverse parties and not to cross-claimants seeking indemnification or contribution from co-parties. Furthermore, the statute requires three voluntary dismissals before the claim is considered finally adjudicated. Compare FRCP 41 (a) (requiring only two voluntary dismissals before deemed finally adjudicated). Concededly, the parties stipulated “with prejudice” as to the claim for indemnity. However, claims for indemnity or contribution are defensive and stand on a different footing than claims for affirmative relief.
(2) The majority misinterprets Wright & Miller, Moore, and Astron Industrial Assoc. v. Chrysler Motors Corp., 405 F2d 958 (5th Cir. 1968). Each of these authorities addresses the issue of a voluntary dismissal by the plaintiff. None says anything about cross-claimants seeking indemnity or contribution. Indeed, “co-parties in the first suit are not prevented from litigating the same issues between themselves in a second lawsuit if they remained in a non-adversarial position toward one another throughout the first action.” (Emphasis supplied.) Friedenthal, Kane, and Miller, Civil Procedure, § 14.13 (citing Wright, Miller, and Cooper, Jurisdiction and Related Matters, § 4450). The authorities referred to by the majority go on to define adversarial in our context to mean opposing parties by virtue of an affirmative claim for something more than indemnity or contribution. See, e.g., Hellenic Lines, Ltd. v. Exmouth, 253 F2d 473 (2nd Cir. 1958).
(3) Why make a distinction between claims for affirmative relief and claims for indemnification or contribution? The majority opinion answers this question in its third criterion for res judicata — “the party against whom the doctrine of res judicata is raised must have had a full and fair opportunity to litigate the issues in the first action.” It is clear that Mr. Vineyard did not have such an opportunity under the facts of this case.
A co-defendant who seeks indemnity or contribution has reason to challenge res judicata, whereas a plaintiff who seeks affirmative relief does not. A plaintiff has every reason to be fully aware of his rights and to be adequately represented. After all, he initiated the action and brought everyone else into court. In short, a plaintiff chooses when, where, and whom to sue. A defendant must come to court or face default. He has no choice. The majority points out that the plaintiff does not have to bring suit, but if he does, he must assert all transactionally-related claims or risk preclusion by res judicata. From this firm premise, the majority mistakenly concludes that a similar rule should apply to cross-claimants seeking indemnity or con*463tribution. This conclusion does not follow.
That the answers of both parties . . . sought to put the blame on the other is no bar. [W]here a person is injured by the concurrent negligence of two tortfeasors who are joined in one action, the fact that each of them attempts to show that the other was solely responsible for the accident or that the other alone was negligent does not make the issue of negligence res judicata between them. Hellenic, supra at 477.
Such claims are really defenses and should not be allowed to unfairly blindside a co-defendant who sought only to fully defend the first action.
The . majority also contends that cross-claims are permissive so that friendly co-parties will not be forced to immediately oppose one another or forever hold their peace. The majority thus reasons that once a party files a cross-claim, this concern goes out the window. But cross-claimants can still work together as allies against a common adversary when the cross-claim is for indemnity or contribution and not affirmative relief. No one needs to be indemnified against a losing plaintiff.
The majority contends that the appellee had a full and fair opportunity to litigate in the first action. They stress that he had hired an attorney and filed this suit only one month after the dismissal of the first suit. Thus, the majority reasons that the court could have granted a continuance for a month until the extent of the injuries became known. This conclusion is suspect for two reasons. First, it penalizes Mr. Vineyard for retaining an attorney, but not having that attorney represent him for the purposes of the dismissal. Why should he when he had every reason to believe that the MARTA attorneys would fully and fairly represent him? Second, the fact that Mr. Vineyard filed this complaint only one month after the dismissal of the prior suit proves nothing.
Mr. Vineyard’s retained counsel was not present at the dismissal, nor was he informed of the transaction. While Mr. Vineyard could have alerted his attorney, he had no reason to believe that the MARTA attorneys would not fully and fairly represent him. They certainly did nothing to let him know otherwise.
This Court has not yet worked out the full application of res judicata in this area; we are attempting to do so today. How was Mr. Vineyard to know he risked preclusion by relying on the only counsel he believed he needed? Mr. Vineyard, in asserting his cross-claim for indemnification, was merely defending himself. Surely he did not intend to surrender all rights to recovery for his injuries.
At the time of the dismissal, Mr. Vineyard did not know the full *464extent of his injuries. Such discovery could have taken a month, a year, or ten years. So, according to the majority, Mr. Vineyard could have recovered for his injuries in three situations: 1) if he could have predicted when his injuries would manifest themselves; 2) if his injuries had not manifested themselves until a longer period of time had elapsed, but before the statute of limitation had run; or 3) if he had requested an indefinite continuance (a continuance that, for all anyone knew at the time, could have lasted ten years). If Mr. Vineyard had acted as the majority now says he should have, the parties would not have settled. The primary purpose of res judicata is to promote judicial economy in claims for affirmative relief. Res judicata, as applied by the majority, is too broad for this situation because it does not fit an action brought solely for indemnity or contribution.
At least one member of this Court has stated that cross-claims are permissive only and that it is “axiomatic” that a party bringing a cross-claim will not be barred by res judicata, as would be the case with a compulsory counterclaim. Citizens Exchange Bank of Pearson v. Kirkland, 256 Ga. 71 (344 SE2d 409) (1986) (Bell, J., dissenting).
Finally, if the majority insists upon forcing a co-defendant to make such a disconcerting choice, Mr. Vineyard should be allowed to bring suit under the facts of this case, where he did not discover the nature and extent of his injuries until after the dismissal of the first suit and has no way of knowing how long the injuries will take to manifest themselves.
I am authorized to state that Chief Justice Clarke joins in this dissent.