MILLER, Justice:
In this original prohibition case, we are asked to apply the doctrine of collateral estoppel and hold that the trial court had exceeded its legitimate authority in failing to grant a summary judgment in favor of the plaintiffs, Marjorie Long and Floyd Conley, petitioners herein, and against the defendants, the City of Weirton and Manufacturer’s Light & Heat Company (hereinafter Gas Company). The latter is an inter-venor herein. We granted a motion to intervene to the two other prior defendants, Tri-State Asphalt Corporation and James White Construction Company, who were found not to be liable at an earlier trial and who assert the benefit of collateral estoppel. For the reasons set out herein, we decline to issue a writ of prohibition.
The petitioners in this case are husband and wife. The wife sustained personal injuries in a gas explosion and her husband brings his derivative claim for loss of consortium and for necessary medical and hospital expenses incurred on behalf of his wife. The gas explosion which gave rise to this litigation was the subject matter of previous litigation which was appealed to this Court in
Long v. City of Weirton,
158 W.Va. 741, 214 S.E.2d 882 (1975). The plaintiff in that case was the minor daughter of Mrs. Conley, the petitioner herein. Mrs. Conley acted as
guardian ad litem
or next friend along with her husband in bringing the suit for her daughter’s injuries.
The jury in the trial of
Long v. City of Weirton, supra,
returned a verdict against the Gas Company and the City of Weirton. It returned no verdict against the two other defendants. The trial court set the judgment aside as to the City of Weirton based on its claim of municipal immunity and an appeal followed. We determined that the defense of municipal immunity was no longer available and reversed the trial court’s exoneration of the City of Weirton and reinstated the jury verdict. We also affirmed the jury verdict against the Gas Company as well as the exoneration of Tri-State Asphalt Corporation and James White Construction Company. 158 W.Va. 973, 214 S.E.2d at 864.
As might be expected, the petitioners in this case who prevailed in the first case are arguing for collateral estoppel. The Gas Company’s main argument against collateral estoppel is that Mrs. Conley is pursuing her own cause of action in this case, while in the earlier case, she was merely a nominal party as a next friend or
guardian ad litem
pursuing the personal injury claim of her injured daughter. It contends that this is a separate cause of action which under principles of
res judicata
is not controlled by
Long v. City of Weirton.
It also asserts that there has been a substantial change in our law of contributory negligence as a result of
Bradley v. Appalachian Power Co.,
163 W.Va. 332, 256 S.E.2d 879 (1979), which was decided after
Long v. City of Weirton.
Consequently, the Gas Company maintains that it should have the benefit of these new principles in the present litigation.
As a preliminary consideration, it is necessary to differentiate between the doctrine of
res judicata
and collateral estoppel. We have defined
res judicata
in somewhat varying, although not inconsistent, degrees of terminology. In Syllabus Point 1 of
In re Estate of McIntosh,
144 W.Va. 583, 109 S.E.2d 153 (1959), we summarized
res judicata
based on one of our earlier cases:
“ ‘An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined,
but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the
status
of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being
res judicata.’
Point 1, Syllabus,
Sayre’s Adm’r v. Harpold,
33 W.Va. 553 [11 S.E. 16].”
The underlying purpose of the doctrine of
res judicata
was initially to prevent a person from being “twice vexed for one and the same cause.”
State ex rel. Connellsville By-Product Coal Company v. Continental Coal Company,
117 W.Va. 447, 449, 186 S.E. 119, 120 (1936). There are also additional public policy reasons as expressed in
Montana v. United States,
440 U.S. 147, 153-54, 99 S.Ct. 970, 973-74, 59 L.Ed.2d 210, 217 (1979):
“To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions.” (Footnote omitted)
These same policy considerations also support the doctrine of collateral es-toppel which is related in some degree to
res judicata.
Collateral estoppel is designed to foreclose relitigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit. We have made this summary of the doctrine of collateral estoppel:
“But where the causes of action are not the same, the parties being identical or in privity, the bar extends to only those matters which were actually litigated in the former proceeding, as distinguished from those matters that might or could have been litigated therein, and arises by way of estoppel rather than by way of strict
res adjudicata.” Lane v. Williams,
150 W.Va. 96, 100, 144 S.E.2d 234, 236 (1965).
The doctrine of collateral estoppel also requires as does
res judicata
that the first judgment be rendered on the merits and be a final judgment by a court having competent jurisdiction over the subject matter and the parties.
Because collateral estoppel recognizes that the second suit may be on a different cause of action, its focus is on whether the issues which are being sought to be litigated in the second suit were actually litigated in the first suit. Whereas, the central inquiry on a plea of
res judicata
is whether the cause of action in the second suit is the same as in the first suit. This distinction was summarized in
note 5 of
Parklane Hosiery Co. v. Shore,
439 U.S. 322, 326, 99 S.Ct. 645, 649, 58 L.Ed.2d 552, 559 (1979):
“Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action. Under the doctrine of collateral estoppel, on the other hand, the second action is upon a different cause of action and the judgment in the prior suit precludes relitigation of issues actually litigated and necessary to the outcome of the first action.”
A common requirement for the application of
res judicata
and collateral estoppel was that there had to be mutuality of parties between the first suit which had proceeded to judgment and the second suit, where the defense of
res judicata
or collateral estoppel was being asserted. The concept of mutuality extended not only to the named parties but to those who were privy to them.
Barnett v. Wolfolk,
149 W.Va. 246, 140 S.E.2d 466 (1965);
United Fuel Gas Company v. Hays Oil & Gas Company,
111 W.Va. 596, 163 S.E. 443 (1932).
The term “privity” is a somewhat fluid concept. In the Syllabus of
Cater v. Taylor,
120 W.Va. 93, 196 S.E. 558 (1938), we said: “Privity, in a legal sense, ordinarily
denotes ‘mutual or successive relationship to the same rights of property’.” And, in Syllabus Point 1 of
Gentry v. Farruggia,
132 W.Va. 809, 53 S.E.2d 741 (1949), we said:
“Where, the principle of
res judicata
is invoked in order for it to apply it must appear either that the parties in the present case are identical with those in the former litigation or that their privity with them was such as to give them a common interest in the outcome thereof.”
Implicit in the traditional concept of mutuality was the principle that before one could be afforded the benefit of a judgment through the assertion of
res judicata
or collateral estoppel such party had to be bound to the judgment. For this reason, it was customary to state that a stranger to the judgment could not assert its benefits. The underlying premise for requiring mutuality of parties was that it would be unfair for the party seeking the advantage of the judgment not to be bound by it.
This premise, however, failed to take into account that the party who is bound to the judgment has had an opportunity to fully litigate his position in the first suit as to the same issue being asserted in the second suit.
The Supreme Court summarized this
point in
Parklane Hosiery Co. v. Shore,
439 U.S. at 328, 99 S.Ct. at 650, 58 L.Ed.2d at 560: “By failing to recognize the obvious difference in position between a party who has never litigated an issue and one who has fully litigated and lost, the mutuality requirement was criticized almost from its inception.”
The doctrine of mutuality has been undergoing modification as it relates to collateral estoppel.
Judge Traynor is generally credited with initiating the first change in the doctrine in
Bernhard v. Bank of America Nat. Trust & Sav. Ass’n.,
19 Cal.2d 807, 813, 122 P.2d 892, 895 (1942), which held that a defendant who was not bound to the judgment could assert it as
res judi-cata
against the plaintiff and set out these guidelines:
“In determining the validity of a plea of res judicata three questions are pertinent: Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?”
A majority of jurisdictions now recognize that under certain conditions mutuality of parties is no longer necessary in order to enforce a judgment against a party or his privy.
E.g., Parklane Hosiery Co. v. Shore, supra; Momeau v. Stark Enterprises, Ltd.,
56 Haw. 420, 539 P.2d 472 (1975);
Hunter v. City of Des Moines,
300 N.W.2d 121 (Iowa 1981);
Hossler v. Barry,
403 A.2d 762 (Me.1979);
MPC, Inc. v. Kenny,
279 Md. 29, 367 A.2d 486 (1977);
Oates v. Safeco Ins. Co. of America,
583 S.W.2d 713 (Mo.1979);
Gammel v. Ernst & Ernst,
245 Minn. 249, 72 N.W.2d 364, 54 A.L.R.2d 316 (1955);
Cutter v. Town of Durham,
120 N.H. 110, 411 A.2d 1120 (1980);
Ettin v. Ava Truck Leasing, Inc.,
100 N.J.Super. 515, 242 A.2d 663 (1968),
affd in part and rev’d in part on other grounds,
53 N.J. 463, 251 A.2d 278;
Anco Mfg. & Supply Company, Inc. v. Swank,
524,P.2d 7 (Okl.1974);
State Farm Fire & Cas. Co. v. Century Home Compon., Inc.,
275 Or. 97, 550 P.2d 1185 (1976);
State v. Dupard,
93 Wash.2d 268, 609 P.2d 961 (1980); Annot., 31 A.L.R.3d 1044 (1970). Such enforcement is ordinarily by way of collateral estoppel since the person seeking collateral estoppel does not have the same
cause of action in the technical sense as used in the doctrine of
res judicata.
The trend away from the strict application of mutuality of parties has brought about some new terminology. Some courts and commentators use the term “issue preclusion” in lieu of the traditional terms
“res judicata”
or “collateral estoppel.”
There is also a differentiation made as to whether the plaintiff is asserting collateral estoppel or issue preclusion against a defendant or whether the defendant seeks to assert it against the plaintiff.
Where a plaintiff presses for collateral estoppel, it is said to be “offensive” on the theory that the plaintiff is using the estop-pel as an affirmative device to avoid having to prove liability against the defendant. When the defendant asserts collateral es-toppel against the plaintiff, it is termed “defensive” because the defendant seeks to defend and bar the plaintiffs cause of action by a prior adverse judgment rendered against the plaintiff.
Most courts which permit a stranger to the first action to assert collateral estoppel in the second action look to several general inquiries; Whether the issues presented in the present case are the same as presented in the earlier case; whether the controlling facts or legal principles have changed substantially since the earlier case; and, whether there are special circumstances that would warrant the conclusion that enforcement of the judgment would be unfair.
An additional factor to be considered involves the situation where the plaintiff is seeking collateral estoppel against a defendant where the plaintiff was not a party to the first litigation. Courts have recognized that it is possible for a plaintiff to deliberately avoid consolidation or joinder in the earlier suit where there are common questions of law and fact in order to wait and see how a fellow plaintiff’s suit is decided.
If the first suit is successful then the plaintiff can seek to utilize its judgment by way of collateral estoppel in his suit. If the first suit is unsuccessful, since he was not a party to that suit the judgment cannot be asserted against him by the defendant. Because one of the purposes underlying the collateral estoppel doctrine is to limit repetitive litigation and encourage joinder, courts have concluded that a plaintiff may be denied collateral estoppel benefits if he cannot advance a substantial reason why he did not join in the original litigation.
The United States Supreme Court in
Parklane Hosiery Co. v. Shore,
439 U.S. at 330-31, 99 S.Ct. at 651-52, 58 L.Ed.2d at 561-62, expressed this point as follows:
“Offensive use of collateral estoppel, on the other hand, creates precisely the opposite incentive. Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a ‘wait and see’ attitude, in the hope that the first action by another plaintiff will result in a favorable judgment.
E.g., Nevarov v. Caldwell,
161 Cal.App.2d 762, 767-768, 327 P.2d 111, 115;
Reardon v. Allen,
88 NJ.Super. 560, 571-572, 213 A.2d 26, 32. Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of litigation, since potential plaintiffs will have everything to gain
and nothing to lose by not intervening in the first action.
J)S $ sjc * Ht >Jt
“... The general rule should be that in cases where a plaintiff could easily have joined in the earlier action ... a trial judge should not allow the use of offensive collateral estoppel.” (Footnote omitted)
See also MFA Mut. Ins. Co. v. Howard Construction Co., supra; Anco Mfg. & Supply Company, Inc. v. Swank, supra; Bahler v. Fletcher, 257
Or. 1, 474 P.2d 329 (1970).
We recognize that a stranger’s right to utilize the doctrine of collateral estoppel is not automatic because it may depend on the peculiar facts of a given case. Accordingly, we follow the rule stated in
Parklane Hosiery Co. v. Shore,
439 U.S. at 331, 99 S.Ct. at 651, 58 L.Ed.2d at 562, that the trial court should have a rather broad discretion in determining when it should be applied:
“We have concluded that the preferable approach for dealing with these problems in the federal courts is not to preclude the use of offensive collateral estoppel, but to grant trial courts broad discretion to determine when it should be applied.” (Footnote omitted)
See also Hossler v. Barry, supra.
Because the application of the doctrine of collateral estoppel is discretionary with the trial court and rests upon a number of factual predicates, we decline to issue a writ of prohibition on the basis that the trial court abused its discretion in failing to enforce collateral estoppel, under the rule stated in Syllabus Point 2 of
State ex rel. Peacher v. Sencindiver,
160 W.Va. 314, 233 S.E.2d 425 (1977):
“A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having
such jurisdiction exceeds its legitimate powers.
W. Va. Code
53-1-1.”
See also State ex rel. Maynard v. Bronson,
167 W.Va. 35, 277 S.E.2d 718 (1981);
State ex rel. Heck’s v. Gates,
149 W.Va. 421, 141 S.E.2d 369 (1965).
It is urged that we consider this matter under the prohibition standards set out in Syllabus Point 1 of
Hinkle v. Black,
164 W.Va. 112, 262 S.E.2d 744 (1979):
“In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.”
The relevant criteria in
Hinkle v. Black
for the purposes of this ease is that the legal error must be “plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts.” However, many of the issues surrounding the right to invoke collateral estoppel may rest on disputed factual issues. One of the important inquiries in determining whether a plaintiff is entitled to assert collateral estoppel against a defendant who has had an adverse judgment rendered against him in a prior proceeding arising out of the same transaction, is whether the plaintiff could have easily joined in the original litigation.
As earlier noted, if the plaintiff could have easily joined in the original suit, most courts will not permit him to invoke the doctrine of collateral estoppel. The resolution of this issue often depends on a mixed question of law and fact which the trial court must resolve. There may be factual disputes which remove the issue from the
Hinkle v. Black
rule.
While the Gas Company asserts that collateral estoppel should be denied in this case because our rule of contributory negligence has been changed since
Long v. City of Weirton,
we do not see how this benefits the Gas Company since our rule is now more liberal.
Bradley v. Appalachian Power Co., supra.
The Gas Company does not assert that it has a defense of contributory negligence as against the petitioners in this case, which it did not have in the original action because the plaintiff was a child of tender years. However, this type of assertion can arise and would have to be resolved by the trial court in determining whether to allow the plaintiff the benefit of collateral estoppel.
There may be some balancing of facts necessary to determine whether the contributory negligence defense is viable. Again, this suggests why resolution of these issues is inappropriate by way of a writ of prohibition in this Court.
The intervenors in this case seek to assert the judgment in
Long v. City of Weirton
as a bar to the plaintiffs’ present suit. They misperceive a fundamental point relating to the utilization of collateral estoppel which is that any person against whom collateral estoppel is asserted must have had a prior opportunity to have litigated his claim. This is a basic due process requirement.
See
note 6,
supra.
In
Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. 313, 329, 91 S.Ct. 1434, 1443, 28 L.Ed.2d 788, 800 (1971), this point was made:
“Some litigants—those who never appeared in a prior action—may not be collaterally estopped without litigating the issue. They have never had a chance to present their evidence and arguments on the claim. Due process prohibits es-topping them despite one or more existing adjudications of the identical issue which stand squarely against their position.”
Thus, in
Humphreys v. Tann,
487 F.2d 666 (6th Cir.1973),
cert. denied,
416 U.S. 956, 94 S.Ct. 1970, 40 L.Ed. 307, the court concluded that a plaintiffs personal representative was not collaterally estopped from suing the owners of a small private plane which had collided with a commercial plane in which the plaintiff was a passenger. Earlier litigation between other passengers and the defendant-owners had resulted in a verdict in favor of the defendants. The court held that since the plaintiffs personal representative was not a party to the earlier judgment, it could not be asserted against him because he had not had his day in court in the first action. The court, citing
Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, supra,
concluded:
“While the doctrine of collateral estop-pel permits a prior judgment to preclude relitigation of an issue previously determined on its merits, it may be applied
in favor of
a stranger to the first action, but only
against
a party to that action.” 487 F.2d at 671. (Emphasis in original)
See also General Foods v. Massachusetts Department of Public Health,
648 F.2d 784 (1st Cir.1981);
Gerrard v. Larsen,
517 F.2d 1127 (8th Cir.1975);
Standage Ventures, Inc. v. State,
114 Ariz. 480, 562 P.2d 360 (1977);
Gomes v. Tyau,
57 Haw. 163, 552 P.2d 640 (1976);
Hunter v. City of Des Moines, supra.
The attempt to assert a judgment against a person who is not a party to the original action can be done if such person is in privity with a party to the earlier litigation. In
Southwest Airlines Co. v. Texas International Airlines,
546 F.2d 84, 95 (5th Cir.1977),
cert. denied,
434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93, the following categories of privity were identified:
“Federal courts have deemed several types of relationships ‘sufficiently close’ to justify preclusion. First, a non-party who has succeeded to a party’s interest in property is bound by any prior judgments against the party.... Second, a non-party who controlled the original suit will be bound by the resulting judgment. ... Third, federal courts will bind a non-party whose interests were represented adequately by a party in the original suit.” (Citations and footnote omitted)
However, this is by no means an exhaustive itemization of what constitutes a “privy” status which may result in an earlier judgment binding a non-party to it.
Cases as well as the Restatement demonstrate that the privity doctrine does not apply when a person sues in a representative capacity, and then brings his own individual cause of action even though it arises from the same transaction. This is summarized in Paragraph 2 of Section 36 of the Restatement (Second) of Judgments (1982):
“A party appearing in an action in one capacity, individual or representative, is not thereby bound by or entitled to the benefits of the rules of res judicata in a subsequent action in which he appears in another capacity.”
See Humphrey v. Tann, supra; Gerrard v. Larsen, supra; Hossler v. Barry, supra; Rudow v. Fogel,
376 Mass. 587, 382 N.E.2d 1046 (1978);
In re Sullivan’s Estate,
289 N.Y.2d 44, 323 N.Y.S.2d 817, 272 N.E.2d 323 (1971);
Farley v. Farley,
19 Utah 2d 301, 431 P.2d 133 (1967).
Thus, it is clear that petitioners are not foreclosed under any privity concepts from pursuing their own claim against the defendants because they had earlier acted as
guardian ad litems
in their daughter’s personal injury claim.
The fact that the privity issue may depend on factual matters that are independent of anything contained in the original proceeding is another reason why the trial court is in a better position to resolve these issues than we are by way of an original prohibition proceeding.
Finally, it must be emphasized that by declining to supervise through prohibition matters relating to collateral estoppel we are not creating any inequitable rule. Trial courts are undoubtedly as sensitive as we are to the need to preclude repetitive and vexatious litigation. Where the right to collateral estoppel is clear, it will undoubtedly be enforced. In a close case, the trial court may well decline to enforce collateral estoppel but such declination means only that the party seeking collateral estoppel must litigate the issue which is what would have to be done if there were no earlier proceeding.
A summary of the principles of collateral estoppel applicable to the present case include:
(1)The petitioners in this case are not foreclosed from asserting collateral estop-pel as against the Gas Company and the City of Weirton since the doctrine of mutuality of parties is no longer an absolute bar for collateral estoppel in this jurisdiction. Both the Gas Company and the City of Weirton were parties in the original ease of
Long v. City of Weirton
and had an opportunity to litigate the issues which gave rise to the petitioners’ cause of action.
(a) Collateral estoppel, however, may be denied if the petitioners could have easily consolidated their suit with the original suit or if there are different defenses that can be legitimately raised by the Gas Company and the City of Weir-ton in the present suit which could not have been raised in the original suit.
(2) The petitioners are not foreclosed under concepts of privity from pursuing their present claim because they acted as
guardian ad litems
in the case of
Long v. City of Weirton
on the cause of action of their injured daughter.
(3) The defendant intervenors, Tri-State Asphalt Corporation and James White Construction Company, cannot assert collateral estoppel against the petitioners based on their exoneration in the original suit because the petitioners were not parties nor in privity with the plaintiff in the original case. Due process requirements prohibit foreclosure of a plaintiff’s claim where such plaintiff has not had an opportunity to litigate it in the prior proceeding.
The writ of prohibition is denied because the enforcement of collateral estoppel rests upon factual and legal issues which are ordinarily left to the discretion of the trial court and which are unsuitable for resolution on an original writ of prohibition in this Court. In refusing to issue this writ of prohibition, we do not foreclose the trial court from reconsidering these matters in light of the principles set out in this opinion.
Writ Denied.