dissenting.
I would not permit the defendant-appel-lee insurance company to employ an estop-pel against the plaintiffs-appellants in this case for several reasons:
1. The plaintiffs did not choose to have their claims against CIGNA litigated in federal court, but were forced out of their chosen state court in Elkhart County by CIGNA.
2. The plaintiffs’ claims against Allstate are based upon separate and distinct contracts for which separate consideration was provided.
3.The common law and state law pronouncing duty of Indiana courts will be diminished if we do not maintain mutuality of estoppel where the first court to speak on an issue is a federal court.
In addition to the above, I would not order summary judgment for Allstate affirmed were I to agree with the reasoning of the majority opinion, but would instead remand to permit plaintiffs an opportunity to show that the defense of collateral es-toppel should not be applied in their case. While Allstate’s motion for summary judgment laid an estoppel claim, the law in Indiana at the time did not support that estoppel claim. Plaintiffs properly relied upon such law in making a defense to the motion for summary judgment and were not pressed to investigate and support rational procedural or factual reasons for rejecting the motion for summary judgment.