next case and the call the docket is agenda number nine scuse me case number one one two eight nine eight brandon wilson versus edward hospital counsel for the appellant please p a claim at that point and as i understand the question before this court it we haven't spent a great deal of words on a few words of parent and actual agency and whether that was or was not splitting a claim  to address that i'd like to go back and start with an old case the whole case hold with the city of chicago because i i can only do this by analogy how old was the case where the plaintiff alleged that the city had thank originally designed a roadway and had life left no you don't have you haven't gotten rid of our branch of the claim here you've only gotten rid of part of the claim and we believe because there were other allegations on which the city's liability whether or not it was negligence  we believe we have the same sort of situation here we won the court get rid of the tossed out of closed out a granted summary judgment on the actual agency we still have the other the other part of the agency really question that's whether or not there was a parent agency and in looking at it i tried to look at it in terms of stairwells or stairways and maybe i didn't make the analogy quite clear maybe i should have said when we look at a case we're looking at floors different levels of floors there are different there are ways to get from the first we have to get to the first floor which in this case would be the agency issue vicarious by the second floor would be duty third floor would be misconduct fault fourth floor would be injuries caused by the right to conduct with between age four you don't have just one stairway you've got multiple stairways i don't have to prove every of negligence as sort of came up in the whole case in order to to get past the duty i don't have to prove every injury to get to the injury for i should have to prove every possible agency combination to get to the what i call the principle floor the question is whether or not we keep talking about a carrot agency an actual agency the question is was the hospital the principle for these doctors when you look at it that way i've got it it's as if i've got to go from four from the base floor to the first floor to different stairways the whole analogy to the way to prove the whole analogy highway design and debris on the roadway are quite different proofs in almost any case that you have for each element of the claim you have different proofs it's always going to be the case but the question isn't whether you have different elements i don't believe it's question is is the issue of our father the hospital is the principal or is that still around after the actual agency part and i would even ghost months step back there's steps on the way to a theory of recovery similar to multiple allegations of of negligence within a single cow as a pigeon teenie and as we look at hudson for example just tell me the difference difference i believe in this i believe the question here is the question the husband wasn't simply a question as i understood it of a fault there were there you could have different types of fault and they're different here we're talking about whether or not somebody is a and then here we have perfect professional liability professional negligence one kind of negligence and based on vicarious liability with what seems to be two different alternative elements  each one of those some sounds different something a little bit different but each one of those breaking these ideas apart you've got the the damages under the statute versus the common law you have two different vicarious liability they sound somewhat but they also sound different so from all of these can you help this right is a sentence that says a claim is how you define a claim given the history of from my perspective and  that lets you bring a claim for world someone an operative set of facts to let you bring a claim for negligence you do not have an operative set of facts that let you bring a claim for agency agency is simply not a claim and that's where i think i end up coming back to logically agency is not a claim because agency does not allow me to sue anybody agency is simply a means by which somebody else i guess to my claim has been filed is responsible for that party's fault if the court is going to determine that world that actually agency in a parent agency represent two different kinds of claims then my position is substantially weakened and i have to admit that i can't avoid the obvious and so the question i'd like the court to come back to what your out of suggested what is a claim and how this court resolves this this the courts have said that wilson won and negligence i think they said the two claims there are surely capable of being given three or four a status i don't know that anybody scrolls of that if there's if you can get three or four a status you are because the negligence count is  disposed of an entire claim the case that's left when the negligence count went there in something like reiner hudson but the case is left you know it's still a full case when the when the branch of the agency  clause a vashon not a step along the way because there's a statutory cause of action if i used to negligence and willful and one analogy that would seem to be a separate recovery the difference between that good sense and product liability if a negligence count goes out you can get three or four in a language because you've disposed of a planche of the action i keep equating i think in my preferred branch of the action with the word claim in it's so if you have a statutory cause of action you should have that's a separate claim it typically has a separate element to work if the breach something that the statute did common law for negligence a different branch of common law for wolf one one but the question gets back to do we have a claim did we ever alleged claim for agency we have a claim of agency because it's in there because everybody uses the word claim but i put to the court that when you look at the real definition of a claim w negligence case but the case went on the same theory of fault and the case goes on here on the same theory of fault what the doctors did only question is was the hospital principal that the hospital was a principal before the hospital was a principal under our common law sciri before the summary judgment on actually agency the hospital was a was a principal under a common law theory after the summary judgment judgment it was appropriate to dispose of the issue at that time i can scroll with that addict it was clear the critic evidence was that this these doctors are not the employees and not going to control of the hospital so that they had to be out of the case i don't know how they would be disposed of other than somewhere judgment i would like to find a way to tell this court but i can't i can't do it you could strike it but if the question was one of evidence and we didn't have any evidence to show they were actually agents  is that what it meant when that member talking about claim in terms of race to take out a claim is something you can execute on i'm sorry i judgment is something you can execute on my point to make the point we can actually see when the defendants when no but but something is going from the case able to prejudge me just like removing one of two allegations of negligence from my count that's a claim that's gone to a claim that i was going too fast for conditions is different than a claim that i was driving while intoxicated and yet summary judgment could be granted  by i wasn't drinking that day nobody could say the same problem would occur nobody could come in and say won't you know you didn't you didn't get rid of it you get that claim isn't there if that's the analogy that i believe it's best because i point is this is the plaintiff here is that we can we would only have claims but if somebody got rid of the entire of the entire common law based princip allocation that the hospital is the principle for these people i say i can't think of a way that you could take agency and bring it into different entirely different forms and i actually i could there could be statutory agency i had there are instances where the statutory agency would that be a separate branch of agency would we have split the claim then because it's so distinctly different i don't know until i frankly until i just stood here i had thought about that  it's apparent that the court understands our position and i could use more examples but i would simply be using more examples and basically it comes down to what do we mean by a claim for purposes of race  agrees with says that if the basis or elements of recovery are different than the remaining claims then we have separate claims and is just as freeman pointed out the elements of actual agency are is totally different from a par agency as you could get actually agency requires either an employee employer relationship or eight actual right to control the purported age it relies on the doctor to respond yet superior with the side of freeman physicians that's out here that's a that's a prerequisite for him to recover but that doesn't give him any right against the hospital to prove the negatives the physicians he doesn't get to the hospital unless he can also prove one of his two theories or claims of agency actually agency or a parrot agency and they're there night and day i mean a parody to see you start from the premise that there is no employment relationship it's an independent contractor you've looked at conduct of the purported principle d hold out the doctor as the agent was the reliance by the patient separate jury instructions as we set forth in our brief lengthy as to each one i mean this is way beyond hudson if you will which is all about which is simply the very same conduct failure to send out a an appropriate life support vehicle same facts no really the only differences in one case were alleging negligence the other were saying hey it's a little degree more than that it's from that and just ask you a question that i know these issues have been much discussed and i'm not sure you've had an opportunity to respond to an issue that was raised in some of the earlier cases and that involves the fact that seems to deal with this problem and says that rez judicata is not applicable when the plan to voluntarily dismiss is without prejudice and remains free to prosecute any part of this claim so it's a restatement seems to address th that was the argument that was made to the court and the court not unanimously but held that no that does not trump the fundamental principles of clean splitting in pressure to cut a week i'm not going to read that one year to refile or the restatement provision as allowing you to do this we're going to apply the wretched account of principles and equity you know there's also a mention of equity in councils brief i just wanted to touch on it briefly i mean the restatement has six exceptions and hudson did accept them and say well if that was applied and possibly we don't do it but there is no claim in this case that any of those exceptions applied and as far as equity goes and read the  result your decision was that no recovery could be had for the fraudulent inducement of the bonds in hudson no recovery could be had for the wrongful death of the plate of sun nothing like that here played has a for his day in court to still back to my back to my study last night about his or any other definitions of what's a separate claim another one heinrich also says if they were if the cleans reliant different common law doctorates will again clearly that's the case here cases where an allegation of negligence was removed but the theory of the have since a still there the theory of strict liability is still there here is the theory of a parent agency it's going on i mean these these these are two separate stair cases you can't even take them both i mean either your employer employee or or you're not and if you're not then you've got to come over and try to do it under a pair they see are the holding out so to me this is as clear cut if you will  an application hudson and rain is really his is as we could have even pageant t their definition was well that has to involve a separate theory of recovery i think i'll have that same language again we certainly have that here and there are two separate theories they don't really even overlap as willful and wanton and negligence to win votes so as i say i think with all due respect this is a pretty straight forward application in hudson you said if you want you understand rein in the principles of green it's pretty straightforward application here i would submit it's just a straightforward in this case if there's no further question agency or theory of actual agency they're different theories but but the overall theory if you will is just one of agency principle agents and that's i think we're where we part ways and that may be the distinction between the two that's critical to the court's analysis if the defense is right here it would be ironic that the that the court would be finding that there is one claim against the doctors for the misconduct but two claims against the hospital for derivative conduct my question is how does the riveted conduct get multiplied that the point just definition of claim here is probably the one in the bottom line is easier to support watch weekly unless the court has further questions we obviously asked that the certified question be answered other than how