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Flores v. Barretto9/24/2002
y, his decision could not be given preclusive or collateral estoppel effect with respect to tort liability in the subsequent trial: "Issue preclusion, or collateral estoppel . . . applies to a subsequent suit between the parties or their privies on a different cause of action and prevents the parties or their privies from relitigating any issue that [issue] was actually litigated and finally decided in the earlier action." Dorrance v. Lee, 90 Hawaii 143, 149, 976 P.2d 904, 910 (1999) (emphasis and citation omitted) (emphasis added). The basis for requiring prior actual litigation is "the interest in providing an opportunity for a considered determination . . . [which] outweighs the interest in avoiding the burden of relitigation." Id. at 149, 976 P.2d at 910 (internal quotation marks and citation omitted).
In my view, we have never abandoned the requirement that an issue in question must have been actually litigated in a prior proceeding before the affected party may be bound in a subsequent case. "Actual litigation is defined as ' hen an issue is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined[.]'" Doe v. Doe, -, ---, 52 P.3d 255, 271 (2002) (concurring opinion of Acoba, J., joined by Ramil, J.) (quoting Restatement (Second) of Judgments ยง 27 cmt. d (1980)). To hold otherwise would be fundamentally unfair. See Tradewind Ins. Co. v. Stout, 85 Hawaii 177, 187, 938 P.2d 1196, 1206 (App.) (observing that "' ntertwined with the concepts of privity for collateral estoppel purposes' are 'the requirements of due process[,]'" and that " t would be a violation of due process for a judgment to be binding on a litigant who was not a party or privy and therefore has never had an opportunity to be heard" (quoting Safeco Ins. Co. v. Yon, 796 P.2d 1040, 1044 (Idaho Ct. App. 1990))), cert. denied, 85 Hawaii 81, 937 P.2d 922 (1997).
For the foregoing reasons, I concur in the result.
DISSENTING OPINION BY MOON, C.J., IN WHICH LEVINSON, J., JOINS
I respectfully dissent from the majority's holding because I believe that the doctrine of collateral estoppel applies in this case and that the trial court was bound by the arbitrator's decision.
Based on the arbitrator's decision that treatment under the December 1993 Plan was compensable, Flores argues that the doctrine of collateral estoppel barred the trial court from subsequently ruling that treatments by Basto and Aloha Island Clinic after December 31, 1993 were not reasonable and necessary medical expenses. This court has stated that
ollateral estoppel is an aspect of res judicata which precludes the relitigation of a fact or issue which was previously determined in a prior suit on a different claim between the same parties or their privies. Collateral estoppel also precludes relitigation of facts or issues previously determined when it is raised defensively by one not a party in a prior suit against one who was a party in that suit and who himself [or herself] raised and litigated the fact or issue. Dorrance v. Lee, 90 Hawaii 143, 148, 976 P.2d 904, 909 (1999) (emphasis in original) (ellipses omitted) (quoting Foytik v. Chandler, 88 Hawaii 307, 314-15, 966 P.2d 619, 626-27 (1998)).
We have previously held that a party may be estopped from relitigating issues previously determined by a Court Annexed Arbitration Program arbitrator. Dorrance, 90 Hawaii at 150-51, 976 P.2d at 911-12. To establish collateral estoppel, or issue preclusion, and, thus, bar relitigation of the issue, four requirements must be met:
(1) the issue decided in the prior adjudication is identical to the one presented in the action in question; (2) there is
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