dissenting:
Based upon the specific facts of this case, I cannot agree with the Majority’s conclusion that Appellant’s claim for personal injuries was properly dismissed in an award of Summary Judgment.
The Brearmans, Appellees, and Mr. Hunsicker, Appellant, were involved in an automobile accident. A negligence action was initially filed by the Brearmans in January 1987. An Answer and a New Matter was filed on behalf of Mr. Hunsicker, which included a counterclaim for property damage. In 1988, prior to the conclusion of this first action, Mr. Hunsicker brought a separate claim for personal injuries suffered as a result of the accident, to which the Brearmans responded with an Answer and New Matter. On August 31, 1989 the first action, including Mr. Hunsicker’s counterclaim, was marked settled, discontinued and ended with *357prejudice. Shortly thereafter, on October 2, 1989, the Brearmans filed an amended Answer and New Matter in the second action, alleging that the settlement and discontinuance of the first action was res judicata to the claim which was presently pending and should result in a dismissal of the second action. A Motion for Summary Judgment was later filed, the grant of which forms the basis of this appeal.
The Majority’s decision to affirm the award of summary judgment based upon the application of the doctrine of res judicata is particularly troubling in view of the fact that both parties were aware of the pendancy of the second action and apparently made no reference to it in the settlement and discontinuance of the first action. If the parties desired to have the outcome of the first action to also result in a termination of Mr. Hunsicker’s claims for his personal injuries it is likely that this fact would be contained in the settlement and discontinuance of the first action.
In reaching the decision in this case, we should be mindful of the role played by insurance carriers in personal injury auto litigation. In reviewing the record in both cases, it is apparent that Mr. Hunsicker’s defense in the first suit and representation in the second suit were undertaken by different counsel. This leads me to conclude that the strong probability exists that in the first action, the Appellant was being represented by counsel for his insurance carrier and that the property damage counterclaim, representing that carrier’s subrogated collision payment, was a defensive counterclaim. If this is the case, it cannot be argued that Mr. Hunsicker meant to relinquish his personal injury rights at the time the first action was concluded. Under these circumstances, I would vacate the Judgment and remand this matter to the trial court for a determination of the true intent of the parties at the time of settlement of the first action. The interest of the insurers should not operate to defeat the personal rights of the individuals.
*358Because both lawsuits were pending at the time the first suit was settled and marked discontinued and it does not appear that the settlement attempted to encompass the parties rights or obligations under the second action, and because there exists the strong probability that Appellant’s interest in the first action were those of his insurer, I believe it was inappropriate to enter an order of Summary Judgment in this case.