Article by:
Glenn S. Koppel

39 Campbell L. Rev. 1 (2017)


This article sheds light on an evolving area of preclusion law—nonmutual claim preclusion and the related issue of privity between parties to a vicarious liability relationship—that merits scholarly attention and greater doctrinal clarity. To illustrate, if an injured party asserts a negligence claim against a truck driver, and judgment is rendered against the injured party based on a finding of the driver’s nonnegligence, may the driver’s employer invoke claim preclusion or issue preclusion in a subsequent action by the injured party? Are the employer and his employee in privity with each other despite the lack of mutuality? When this fact pattern actually became the subject of a sample multiple-choice question published in 2014 by the National Committee of Bar Examiners, several procedural scholars responded that a plausible case could be made for either of two of the four choices—claim preclusion or issue preclusion. Their various responses reveal a need to provide a measure of coherence to this corner of preclusion law.

These differing doctrinal views raise three significant issues addressed in this article. First, does claim preclusion bar the suit against the truck driver’s employer or only issue preclusion? Second, if the employer can reap the benefits of claim preclusion, is nonmutual claim preclusion available in the first instance or only as a fallback if issue preclusion is unavailable? Third, to the extent that nonmutual claim preclusion is applicable, is it justified doctrinally as an extension of privity to include employee and employer or as an exception to privity?

This Article proposes that adding derivative liability relationships to the recognized categories of substantive legal relationships that “are sometimes collectively referred to as ‘privity’” and applying nonmutual claim preclusion, even where issue preclusion would otherwise have been available, is—and as a matter of policy should be—the next logical step in the evolution of preclusion law.

The law of preclusion has evolved progressively beyond the formalist rule of mutuality that traditionally served as the basis for the so-called “narrow and broad exceptions” to the doctrine of collateral estoppel. As a consequence of the erosion of mutuality, a substantial number of American jurisdictions apply those exceptions to claim preclusion by expanding the concept of privity to include vicarious liability relationships.

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