Bender v. Peay

I respectfully dissent from the opinion of the majority. The principles of collateral estoppel control this case and require af-firmance of the trial court’s judgment. The majority makes a change in the law which, in the interests of fairness and clarity, should be effected by rule.

The majority attempts to distinguish the Benders’ derivative-claim argument from their collateral estoppel argument. I see no distinction. The essence of the derivative argument is that the issue of the Benders’ liability to Mrs. Peay has been decided and cannot be litigated by her husband in a subsequent suit.…