Richter v. Asbestos Insulating & Roofing

SULLIVAN, Judge,

concurring in result.

In my estimation the issue here involved is more correctly determined upon the ba*1005sis of issue preclusion as embodied in the doctrine of collateral estoppel. The doctrine of collateral estoppel is closely related to res judicata and has been said to constitute a “branch” of res judicata. But issue preclusion is not identical to claim preclusion. Wedel v. American Elec. Power Serv. Corp., 681 N.E.2d 1122 (Ind.Ct.App.1997), trans. denied. See also Small v. Centocor, Inc., 781 N.E.2d 22 (Ind.Ct.App.2000), trans. denied; Indiana Ins. Co. v. American Cmty. Servs., Inc., 718 N.E.2d 1147 (Ind.Ct.App.1999).

Here, Richter correctly asserts that the wrongful death claim was not and could not have been litigated because the damage or injury, i.e. death, had not yet taken place when the earlier personal injury litigation was dismissed. In this regard, I think Small, supra, is to be distinguished.3

Nevertheless, every issue underlying this wrongful death claim, except the issue of the death itself, was essential to the earlier claim. There is no cause of action if the only issue left for the plaintiff is the issue of death. The issues of negligence, products liability, and lung cancer causation were all essential elements of the earlier claim brought by Richter when he was still alive. Those issues are precluded from being relitigated by application of the doctrine of collateral estoppel.

For this reason I concur in the affir-mance of the trial court’s judgment.

. In Small, this court held that Small’s 1998 complaint for damages related to the hospitalization and death of his father was barred by res judicata. There, the father’s hospitalization and death were the subject of Small’s 1994 claim as personal representative of the father’s estate which had been dismissed with prejudice. The two claims were identical in the sense that the father’s death had preceded the filing of the 1994 lawsuit as well as the subsequent 1998 claim.