## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

Oshana v. FC

L Buil ders, Inc. , 2013 IL App (1st) 120851

Appellate Court Caption ANWAR OSHANA, Plaintiff, v. FCL BU I L DERS, I NC., Def endant and Counterplaintiff-Ap p el lant (Suburban I ron Works, I nc., Def endant and Counterdef

endant- Appellee ).

District & N o. First District, Six th Division Docke t No. 1-12-0851

Filed J une 28, 2013

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) I n an action arising from the injuries suffe re d by an employ ee of a subsubcontrac tor on a construc tion project, t he doctrine of res j udicata did
not bar the g ener al contra ctor’s counter claim in the injured employ ee’ s tort action alleg ing that the subcontrac tor failed to enfor ce the contra ct’s provision requiring the sub-subcontra ctor to maintain insurance cover ing the g ener al contra ctor, since neither the decla ratory judgme nt action filed by the sub-subcontra ctor’s insurer that resulted in a judgme nt that it was not require d to insure the g ener al contra ctor, nor the summary judgme nt in the tort action denying the g ener al contra ctor’s co u n t erclaim for contribution claims ag ainst the s u b co ntrac tor and sub-subcontra ctor, involved the g ener al contra ctor’s br eac h of contra ct claim.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 06-L -13001; the Hon. J ames N. O ’Ha

ra, Judge , presiding

.

J udg ment Reverse d.Counsel on

Appea l Prusik Selby Daley & Ke z el is, P.C., of Chicag o (John P. Prusik and Fr ank C. Gra dishar, of c ounsel), for appellant.

L indsay
, Rappaport & Pos t el
, L L C, of Chicag o (Jos eph P. Postel and Christopher J . Pickett, of counsel) , for a ppellee.

Panel PRES I DI NG J USTI CE L AMPKI

N delivere d the judgme nt of the court, with opinion.
J ustices Gordon a

nd Rey es conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant and counter

plaintiff FCL Bu il d e r s , I nc. (F CL ), appea ls from the circ uit court’s

o r d er dismiss ing FCL ’s counter claim ag ainst defe ndant and counter defe ndant Suburban I r o n Works, I nc. (Suburban)
, based on the doctrine of res judicata

. On appea l, FCL contends that the final judgme nt in the decla ratory judgme nt a ction conce rning an insurer’ s obligation to defe nd or indemnify FCL in the underly ing tort action did not bar FCL ’s brea ch of contra ct counter claim ag ainst Suburban in the tort action beca use neither the parties nor their privies

wer e identica l in both actions and there was no identity of ca use of a ction. ¶ 2 For

the re asons that follow, we reve rse the judg ment of the c ircuit court.

¶ 3 I . BA CKGROUND ¶ 4 FCL was a g e n e r a l contra ctor that was hired on a construction projec t. FCL subcontrac ted
out the steel fabr ication and ere ction for the projec t to Suburban, which i n t u rn fu rther subcontrac ted out the steel ere ction to J AK I ron Works, I nc. (JAK). J AK employ ed plaintiff Anwar Oshana as an ironworke r. After Oshana was injured at the construction site, he filed

a neg lige nce lawsuit (the tort case ) ag ainst FCL and Suburban, alleg ing b re ac h o f various duties of car e reg arding jobsite safe ty that they alleg edly owed to Oshana

. After Oshana filed

a second amende d complaint in 2008, FCL
, in 2009, filed a third-par ty compl ai n t for contribution ag ainst J AK and a counter claim for c ontribution ag ainst Suburban. ¶ 5 Pr o v i s i o n s i n FC L ’s subcontrac t with Suburban addre ssed Suburban’s obligation to obtain a cer

tain amount of commerc ial g ener al liability (CGL ) insurance
, which would cover not only Suburban and its employ ees but also FCL as the g ener al contra ctor. Moreove r, any subcontrac tors that Suburban might further subcontrac t with also wer e require d to maintain the s ame level of C GL ins u ranc e and include FCL as an insured under the pol icy

. Rely ing

on t h o s e and other contra ct provisions, FCL turned to Westfield I nsuranc e Company (Westfield), which insured J AK under a CGL policy
, for defe nse and indemnification in the
tort case

. Westfield, howeve r, ref used to either defe nd or indemnify FCL
, asser ting that FCL

-2-did not qualify as an a dditional insured under Westfield’s policy with J AK. ¶ 6 Westfield f

iled a decla

ratory judgme nt a ction ag ainst FCL
, seeking a decla ration that it

was not obliga ted to defe nd or indemnify FCL in the tort case

. Suburban was not a party to the decla ratory judgme nt action. I n J anuar y 2010, the circ uit court held that FCL was not an additional insured on the Westfield policy issued to J AK and g rante d summary judgme nt in Westfield’s favor . FCL

appea led. ¶ 7 Meanw hile, in the tort case , Suburban moved for summary judgme nt, contending there

was no evidenc e that Suburban had sufficie nt supervisory
, operational or contra ctual control

over J AK’s work to g ive rise to a d u t y t o Os hana. I n May 2010, the circ uit court g rante d Suburban’s motion for summary judgme nt ag ainst Oshana an d FC L on the issues of
neg lige nce a

nd contribution. Oshana a nd FCL appea led. ¶ 8 I n Marc h 2011, in the decla ratory judgme nt action, this cou rt af fi rm ed t h e award of
summary judgme nt in W estfield’s favor
, holding that FCL was not an additional insured under the policy that Westfield had issued to J AK. W estfield Insurance Co. v. FCL Builders, Inc.
, 407 I ll. App. 3d 730, 731 (2011). Specifica lly
, this court deter mined t h at the plain lang uag e of the insurance policy require d t h at , i n o rd er for an entity to qualify as an additional insured, J AK and that entity must have ag ree d in writing in a contra ct that the entity be adde d to the policy

as an additional insured. Id . at 733. This court c oncluded that there was no evidenc e in the rec ord that J AK had ag ree d in writing with FCL for FCL to be

an additional insured. Id

. at 734. FCL argued that it should be deeme d an additional insured based, i nter alia
, on the Suburban/J AK contra ct that incorporated the FCL/Suburban
contra ct

. Id

. at 736. This court, howeve r, stated that the terms of the Suburban/J AK and FCL/Suburban contra cts wer e irre levant to whether Westfield was oblig ated to cove r F CL

as an additional insured under the pol icy issued to J AK. Id

. at 735. Rather, the dispositi ve issue was W es t field’s contra ctual obligations to its insured, and those obligations wer e controlled by

the insuranc e policy

itself. Id

. ¶ 9 I n September 2011, in the tort case , FCL amende d with leave of

court its counter claim
ag ainst Suburban to add a claim o f b rea ch of contra ct. Specifica lly
, FCL alleg ed that Suburban brea ched its contra ct with FCL when Suburban failed to require its subcontrac tor, J AK, to maintain insurance cover ing FCL for the construction projec t at issue in the tort case

. ¶ 10 I n November

2011, Suburban moved to dismiss, pursuant to section 2-619(a )(4) of the Code of Civil Procedur e (735 I L CS 5/2-619(a) (4 ) (W est 2010)), FCL ’s amende d
counter claim on the basis of res judicata

. Suburban argued that two prior judgme nts barr ed FCL ’s cause of action: (1) the appellate court’s 2011 opinion aff irming summary judgme nt in fa v o r of Westfield in the decla ratory judgme nt action, which held that FCL was not an additional insured under Westfield’s CGL policy issued to J AK; and (2) the trial court’s 2010
summary judgme nt in the tort case , which was pending on appea l and disposed of Oshana ’s tort claims and F CL ’s contribution claim ag ainst Suburban. ¶ 11 I n J anuar

y 2012, this c ourt aff

irmed in the tort case the awa rd of summary judgme nt in favor of Suburban and ag ainst Oshana and FCL

. Oshana v. FCL Builders, Inc.
, 2012 I L App (1st) 101628. There afte r, in Fe bruar y 2012, the circ uit court g rante d Suburban’s motion to dismiss FCL ’s amende d counter claim on the basis of res judicata ; the circ uit court, howeve r,

-3-d i d n o t specify which prior judgme nt barr ed FCL ’s counter claim. Pursuant to I llinoi s

Supreme Court Rule 304(a) (ef f. Fe b. 26, 2010), the circ uit court found that there was no just

rea son to delay

the enf orce ment or appe al of the or der. F CL timely appea led.

¶ 12 I I . ANAL YSI S ¶ 13 On appea l, FCL argues that the circ uit court err ed in deter mining that res

judicata applied
to FCL ’s brea ch of contra ct counter claim ag ainst Suburban. The issue of whether a claim is barr ed by res

judicata comprises a question of law, which is subject to de novo revie w by this
court. Agolf, LLC v. Village of Arlington Heights
, 409 I ll. App. 3d 211, 218 (2011). Fur thermore
, a section 2-619 motion to dismiss admits the leg al sufficie ncy of the complaint

an d raises defe cts, defe nses, or other affirmative matters t hat defeat the claim. IFC C r ed i t Corp. v. Magnetic Technologies, Ltd.
, 368 I ll. App. 3d 898, 900 (2006). We revie w a section 2-619 dismissal de novo

. Id

. ¶ 14 A prior judgme nt may have prec lusive eff ects in a subsequent action under the doctrine of either res judicata or collater al estoppel. Nowak v

. St. R ita High School
, 197 I ll. 2d 381, 389 (2001). ¶ 15 “The doctrine of res judicata provides that a final judgme nt on the merits rende red by a court of competent jurisdiction bars any subsequent actions betwee n the same parties or their privies on the same cause of action.” Hudson v. City of Chicago
, 228 I ll. 2d 462, 467 (2008). “Thre e require ments must be satisfied for res judicata to apply : (1) a final judgme nt on the merits has been rende re d by a court of competent jurisdiction; (2) an identity of cause of action exis ts; and (3) the parties or their privies are identical in both actions.” Id

. “I f the three elements necessa

ry to invoke res j u d i ca ta are prese nt, res j udicata will bar not only ever y matter that wa s ac tually deter mined in the first suit, but also ever y matter that might have been raised and deter

mined in that suit.” Id. at 471 (citing Torcasso v. Standard Outdoor Sales, Inc.
, 157 I ll. 2d 484, 490 (1993))

. A plaintiff is not permitted t o eng ag e in claim

s p l i t ting. Hudson
, 228 I ll. 2d at 474. Res judi cata there by preve nts repe titive lawsuits an d protec ts parties from being forc ed to b ea r the burden of relitig ating essentially the same claim. Agolf, LLC
, 409 I ll. App. 3d at 219. The party invoking the d ef en s e o f r es j udicata bear s the burden of demonstrating it applies. Cload v. W est , 328 I ll. App. 3d 946, 950 (2002). ¶ 16 Under collater al estoppel, the adjudication of a fac t or issue in one cause bars r elitigation of the same fac t or issue in a subsequent suit. LaSalle Bank National Ass’n v. Village of Bull Valley
, 355 I ll. App. 3d 629, 635 (2005). The party asser ting collater al estoppel must show: “(1) the issue previously adjudicate d is identical to the question prese nted in the subsequent action; (2) a fi n al judgme nt on the m erits ex ists in the prior case ; and (3) the party ag ainst whom estoppel is d i re ct ed wa s a party to the prior litigation or is in privity with such a party .” Y orulmazoglu v. Lake Forest Hospital , 359 I ll. App. 3d 554, 558 (2005). ¶ 17 FCL does not contest the fac t that the summary judgme nt in eit h er (1 ) the dec lara tory judgme nt action, which held that Westfield did not owe a duty to defe nd or indemnify FCL
, or (2) the tort case , which disposed of Os h an a’ s t o rt claims and FCL ’s contribution claim
ag ainst Suburban, constitutes a final judgme nt on the merits that was rende red by a court of competent jurisdiction. FCL
, howeve r, argues that two elements of res judicata are missing:

-4-an identity of par ties or their privies a

nd an identity

of ca use of a ction. ¶ 18 Fi rs t, we addre ss Suburban’s argument that FCL had forf eited revie w of the i s s u es o n appea l. Specifica lly
, Suburban argues that FCL has failed in its opening appellant’ s brief to challeng e the summary judgme nt in the tort case as a possible b as i s fo r the circ uit court’s deter mination that FCL ’s brea ch of contra ct counter claim is barr ed under res judicata

. Acc ording to Suburban, FCL has there by conce ded that the summary judgme nt in the tort

case prec ludes that counter claim and was a proper basis for dism i s s al

. We disag ree

. The

rec ord indicates that FCL addre ssed all rele vant issues in the proce eding s befor e the circ uit
court. Fur thermore
, FCL has responde d in its reply brief to Suburba n’s argument about the
summary judgme nt in the tort case . Specifica lly , FCL states that the summary

judgme nt in the tort case , which addre ssed Suburban’s liability for Oshana ’s injuries, has no leg al eff ect

on FCL ’s brea ch of contra ct counter claim ag ainst Suburban for its alleg ed failure to procur e insurance for FCL

. I n addition, forf eiture is a limit ation on the parties and not the court, the issue raised conce rns a clea r question of law, and we choose to addre ss the merits of FCL ’s
appea l. People v . Tomczak , 395 I ll. App. 3d 877, 879 (2009).

¶ 19 A. Dec lara tory J udg ment Action ¶ 20 1. I dentity of Parties or T heir Privies ¶ 21 FCL argues that res judicata does not apply beca use the decla

ratory judgme nt action did
not involve the same parties or their pri v ies as the tort case

. FCL contends that Suburban, which had the burden to prove res judicata
, failed to establish that Westfield repr esente d the same leg al intere st as Suburban in the dec lara tory judgme nt action. ¶ 22 Suburban responds that even though it was not a party in the decla ratory judgme nt a ction, it was in privity with Westfield beca use Suburban i s an ad d itional insured on the policy Westfield issued to J AK and Westfield has at all times provided a defe nse and indemnity to Suburban, without a rese rvation of rig hts. Suburban contends it is in privity with Westfield beca use they are an insured and insurer with respe ct to the tort lawsuit, Westfield ha s at all times provided a defe nse to Suburban, and Westfiel d h as agr eed to indemnify Suburban
ag ainst any judgme nt ente re d in the tort case

. Suburban argues that it had a substantial interest in the decla

ratory judgme nt a ction and benef itted from the ruling that FCL was not

an additional insured on the Westfield/J AK policy beca use Suburban no longe r had to share the policy limit s with FCL

. ¶ 23 “A nonparty may be bound pursuant to privi t y i f h is interests are so closely alig ned to those of a party that the party is the ‘virtual repr esenta tive’ of the nonparty .” City of Chicago

v. St. John’s United Church of Christ
, 404 I ll. App. 3 d 5 05, 513 (2010) (quoting City of Rock ford v. Unit Six of the Policeme n’s Bene volent & Protective Ass’n
, 362 I ll. App. 3d 556, 563 (2005))

. Privity g ener ally exis ts when parties adequa tely repr esent t h e same leg al interests. People ex rel. Bu r r i s v. P r o gressive Land Dev elopers, Inc.
, 151 I ll. 2d 285, 296 (1992) (in d et ermini ng whether privity exis ts, the identity of the interest controls, not the nominal identity of the parties)

. “The re is no g ener ally preva iling definition of ‘privity ’ that the court can apply in all case s; rathe r, deter mining privity require s car eful consideration of the circ umstances of eac h case .” Apollo Real Estate Inve stment Fund, IV, L.P. v. Gelber
, 403

-5-I ll. App. 3d 179, 190 (2010).

¶ 24 Suburban cites Preferred America Insurance v. Dulceak
, 302 I ll. App. 3d 990 (1999), f or the proposition that “insured and insurers share a specia l rela tionship: they are in privity of
contra ct.” Whil e we ag ree with the soundness of the g ener al proposition, it is of no avail to Suburban in the instant case

. I n Preferred America
, the insurer had provided a defe nse to its insured driver, who was sued for neg lige nce in an automobile collision case (prior case ). Id

. at 992-93. The insurer obtained counsel for its insured driver, whom counsel soug ht to show

was not at fault. The jury
, howeve r, found the insured driver 100% liable for the acc ident in question. There afte r, the insured driver’ s wife broug ht a n uninsured motorist claim ag ainst her husband (p re sent case ). The insurer filed a complaint for decla ratory relief ag ainst the wife, seeking a judgme nt that collater al estoppel did not bar the insurer from relitig ating all issues conce rning liability in the prese nt case

. ¶ 25 The court, which found no conflict of interest betwee n the insurer and its insured driver in the prior case , conclude d that they wer e in privity and, thus, the insurer was estopped from relitig ating any issue or defe nse with r espec t to its insured driver’ s liability

. Id

. at 995. The court stated:
“Insur eds and insurers share a specia l rela tionship: they are in privity of contract

. [C itation.] When the insurer reta ins the attorney to defe nd the insured, the atto rn ey repr esents both the insured and the insurer in further ing the interests of eac h. [C itation.] Ordinar ily
, since the interests of the insurer and the insured are harmonious, there is no conflict a nd the attorney is able to exercise inde pendent judg ment for both clients. ***

*** The nonliability of the i n s u re d is potentially the most eff ective bar to any policy claims ag ainst the insurer. That is what [t he insurer, First Americ an Insuranc e,] undertook to show in def ending its insured. *** Where one party is liable to indemnify another ag ainst a particula r loss, either by law or by contra ct, t he primary liability is upon the party ind em n i fy i n g. I n such a case , the party bound to indemnify is in p ri v i t y wi t h the party to be indemnified, and the indemnify ing party there fore h as a d irec t interest in defe nding any suit wher eby there
may be a rec overy ag ainst the party indemnified as to the subject matter of the indemnity

. [C itations.] ‘The party to be indemnified, moreove r, is, manifestly
, direc tly interested in having him defe at all rec o v er y in such sui t, and so their respective interests and duti es in respec t of such suit must be the same.’ [Citation.] ” Id . at 995-96. The court not ed
, howeve r, the rea son for this rule conce rning insurer and insured privity “does not e x ist whe n there is no identity of interests betwe en the insured and the insurer in the orig inal tort action.” Id . at 997. ¶ 26 Suburban’s relianc e on Preferred America is misplaced. Although privity exis ts betwee n Westfield a

nd Suburban in the tort action, Preferred America does not suppor t Suburba n’s claim of privity wi t h Westfield in the decla ratory judgme nt action beca use Westfield and S u b u rban did not share an identity of interests in the decla ratory judgme nt ac t i o n

. Specifica lly
, Westfield had an interest to defe at FCL ’s claim for defe nse and indemnification under the J AK policy

. That interest was in conflict with Suburban’s i n t er es t b eca use

-6-Suburban alleg edly h ad a contra ctual obligation to require J AK to provide insurance

cover ag e for FCL

. Contrary to the situation in Preferred America
, Westfield did not, in the decla ra t ory judgme nt action, undertake to show that Suburban, as Westfield’s additional insured, was not liable for any failure to procur e insurance cover ag e for FCL

. Acc ording ly
, Suburban was not so identified in interest with Westfield that Westfield repr esente d the same leg al rig ht in the declar atory judgme nt action. ¶ 27 Suburban argues that it benef itted from Westfield’s succe ss in the decla ratory judgme nt action b ec au s e Suburban di d not have to share J AK’s covera g e with FCL

. Even assuming that Suburban obtained such a benef it, that i s n ot dispositi ve of the issue of privity for purposes of res judicata , which re quires an ide ntity of intere sts. ¶ 28 I llinois courts have relied on the Restatement (Second) o f J u d gm en t s for g uidance in defining privity

. State Farm Fi re & Casualty Co. v. John J. Rick hoff Sheet Me tal Co.
, 394 I ll. App. 3d 548, 559 (20 0 9 ). “T h e Restatement (Second) of J udg ments explains that ‘ “pr ivity ” re fer s to a cluster of rela tionships, [ citation], under which the pr eclusive e ffe cts of a judgme nt extend bey on d a p ar t y to the orig inal action and apply to persons having specifie d rela tionships to that p ar t y

. ’ ” Id

. (quoting Restatement (Second) of J udg ments, I ntroduction at 1 (1982))

. Section 75 of t he R estateme nt (S ec o n d ) o f J udg ments sets forth three g ener al cate g ories of rela tionships that may establish privity : (1) rela tionships that are “explicitly repr esenta tive” ( e.g. , trustee, class repr esenta tive desig nated by a court) ; (2) “substantive leg al rela tionships [i n which one party to] the rela tionship is trea ted as having the ca pacity to bind the other to a judgme nt in an action to which the latter is not a party ” ( e.g. , co-oblig ors, parties who are vicar iously liable for one another
, bailees and bailors, coowner s of proper

ty , assig nees and assig nors, the promisee and i n t en d ed benef iciary of a contra ct, corpor ation s and their office rs, direc tors and share holders, and members of partne rships); and (3) “s u cce ssors in interest to proper ty .” Restatement (Second) of J u d gm en t s § 7 5 cmt. a, at 210 (1982). See g ener ally Restatement (Second) of J udg ments §§ 41-42, 45-61, 43 (1982). Se e also John J. Rickhoff Sheet Metal Co. , 394 I ll. App. 3d at 559-60 (discussing the Restatement ( Second) of J udg ments). ¶ 29 The rela tionship betw ee n S u b u rb an and Westfield in the decla ratory judgme nt action does not fall into any of the three g ener al cate go ri es of rela tionships that may establish privity

. Howeve r, th e re l at ionship betwee n FCL and Suburban does fall into the second rela tionship cate g ory , i.e.
, that of promisee and intended benef iciary to a contra ct. See John J. Rickhoff Sheet Metal Co.
, 394 I ll. App. 3d at 561-62 (whe re an i nsurer obtained a decla ration that it was not obligated to defe nd or i ndemnify a purported additi onal i nsured under a liability policy , there was privity

betwee n the purported additional insured and the insured beca

use t h e purported additional insured adequately repr esente d the insured’s interests in the dec lara

tory judgme nt action). ¶ 30 The promisee and intended benef iciary to a contra ct rela tionship is descr ibed by section 56 of the Restate ment, which states: “When a contra ct betwee n two persons cre ates an obligation in favor of another
person a s an intended be nefic iary :

***

-7-(2) A judgme nt ag ainst the t hird par t y b en ef iciary in an action on the obl iga tion to him terminates the promisor’s obligation to the promisee.” R es t atement (Second) of J udg ments § 56(2) (1982)

. ¶ 31 Her e, wher e Suburban alleg edly was re q u i re d t o p ro cu re i n s u ranc e for FCL from We s tf ie ld
, th e in s u

rer of Suburban’s subcontrac tor J AK, Suburban is the promisee, Westfie ld is the promisor, and FCL is an intended third-par ty benef iciary of the insurance contra ct. See Rest at em en t (Second) of Contracts § 2 (1981) (def ining promise, promisor, promisee and benef iciary ). The decla

ratory judgme nt ac ti o n b e tw e e n We s tf ie ld a n d F CL
, w h ic h d e te r

mined that Westfield, as promisor, did not have a duty to insure and defe nd FC L
, as third-par ty benef iciary
, w a s a ju d g me n t that terminated Westfield’s obligation to Suburban, as promisee. See Rickhoff Sheet Metal Co.
, 394 I ll. App. 3d at 560. Under the second premise of section 56, the deter

mination that Westfield did not have a duty to insure FCL also termi nated Westfield’s obliga tion to Suburban to provide additional insured cover ag e to FCL for the job in question. Restatement (Second) of J udg ments § 56(2) & I llustration 4 (1 9 82); see also Rickhoff Sheet Metal Co.
, 394 I ll. App. 3d at 560. Acc ording ly
, the judgme nt that FCL was not cover ed by J AK’s policy has a pr eclusive e ffe ct on Suburban’s a bility to relitigate t hat issue, not beca

use Suburban is bound by the judgme nt, but beca use Suburban could have no

cause of action ag ainst Westfield for failure to cover FCL. See Restatement (Second) of J udg ments § 56 cmt. a, at 73-74 ( 1982). ¶ 32 For the fore g oing rea sons, we conclude that Suburban was not in privity with Westfield in the decla

ratory judgme nt action.

¶ 33 2. I dentity of Cause of

Action ¶ 34 FCL also arg

ues, and we ag ree , that res judicata does not apply to bar FCL ’s brea ch of
contra ct counter claim beca use there was no identity of cause of action betwee n the decla ratory judgme nt action and the tort action. I llinois has adopted the transac tional test in deter mining whether an identity of cause of action exis ts for purposes of res judicata

. River Park, Inc . v. City of Highland Park , 184 I ll. 2d 290, 309-11 (1998). “Unde r this test, claims are part of the same c ause of action if they arise from the same transac tion or series of connec ted tran sactions. [C itation.] Subsequent claims may be b ar re d if they orig inate from a single g roup of operative fac ts. [C itation.] Thi s proposition applies reg ardle ss of whether the claims asser t differ ent theories of relief or

are based on evidenc e that does not substantially overla p, as long as they arise from the
same tra nsaction. [Ci tation.]
* * *
I n deter mining whether claims are part of the same cause of action, *** we consider the claims in fac tual rathe r than evidentiar y terms. [C itation.] We must examine the fac ts that g ive rise to the plaintiff’s rig ht to relief [citation] and assess whether they are linked in a manner such that they are par t o f a s i n gle transac tion. The fac tors rele vant to

asce rtaining whether they are so linked include their rela tion in time, space , orig in, and motivation, whether they form a c onvenient trial unit, and whe ther their trea tment as a single unit confor

ms to the parties’ expectations and business usag e or understanding

.

-8-[C itation.] The test is to be applied prag matically

. [C itations.] ” Cload
, 328 I ll. App. 3d at 950-51. ¶ 35 I t is clea

r that the claims asser

ted in t h e p re v i o u s decla

ratory judgme nt action and the brea ch of contra ct counter claim in the instant case do not ar i s e fr om a single g roup of
operative fac ts. The claims do not share a cl o s e t em p o ral, spatial, orig in, or motivation rela tionship. I n the decla ratory judgme nt action, the cover age d i s pute betwee n FCL and We s tf ie ld in v o lv e d th e construction of the terms of the additional insured endorse ment clause in the policy Westfield had issued to J AK. Specifica lly
, Westfield asser ted that FCL did not qualify as an additional insured on J AK’ s policy beca use there was no written ag ree ment betwee n J AK and FCL for FCL to be an additional insured. I n contra st, the dispute at issue in FCL ’s counter claim arose from fac ts involving Suburban’s alleg ed failure to abide by the terms of its separ ate contrac t with FCL

. That contract addressed, inter alia
, the delegation of work at a construction s i t e and Suburban’s obligation to provide FCL with insurance

cover ag e fr om any

subsequent subcontra ctors. ¶ 36 Fur

thermore
, when FCL alleg ed it s brea ch of contra ct co u n t er claim ag ainst Suburban, FCL was not attempting to relitiga te the pre viously

adjudicate d issue of additional insured

cover ag e under the J AK policy

. I nstead, FCL alleg ed an entirely new cause of action that had arisen. T he eve nts that ga ve rise to Westfield’s contra ctual obligations to its insure d, J AK, pursuant to its insurance policy and any brea ch by Suburban, a subcont ra ct o r, o f its
contra ctual obliga tions to FCL
, the g ener al contra ctor, are not sufficie n t l y re lated in time,
space , orig in, or motivation to constitute a s i n gl e transac tion. Be cause FCL ’s brea ch of
contra ct claim ag ainst Sub u rb an d o es not arise out of the same core of operative fac ts as FCL ’s previous claim for cover ag e as an additional insured under J AK’s policy
, there is not an identity

of ca uses of a ction for pur

poses of res judicata

. ¶ 37 I n addition, t h e ev en t s t h at constitute the basis of the decla ratory judgme nt action and brea ch of contra ct counter claim do not form a convenie nt trial unit. When this co urt eff iciently and ex peditiously construed the terms of t he additional insured endorsement of the Westfield policy and deter mined that FCL was not an additional insured under the terms of that policy
, this court ref used to cons i der on the basis of rele vancy any contra ctual obliga tions betwee n FCL and S uburban. W est f i el d In s urance Co.
, 407 I ll. App. 3d at 735. This court never considere d whether Suburban had brea ched its contra ct with FCL by failing to procure insurance

. ¶ 38 Suburban arg ues t h at FC L i s n o w p re cl u d ed from raising the brea ch of contra ct counter claim ag ainst Suburban bec ause F CL could have raised it as pa rt of the de clar atory judgme nt action. This argument lacks merit. I n I llinois
, counter claims are g ener ally permissive rathe r than mandatory

. See 735 I L CS 5/2-6 0 8 (a ) (West 2002); Marsh v. Nellessen
, 235 I ll. App. 3d 998, 1001 (1992). Thus, a de fenda nt ge nera lly may raise his or her claim ag ainst the plaintiff by way of a counter claim or by way of a s ep ar ate action. Marsh
, 235 I ll. App. 3d at 1001. Howeve r, if the defe ndant’s claim involves the same operative fac ts as the plaintiff’s claim, res judicata may bar the defe ndant from r aising his

or her claim in a subsequent action. Torcasso v. Standard Outdoor Sales, Inc.
, 232 I ll. App. 3d 500, 503-04 (1 9 9 2), rev’ d on other grounds
, 157 I ll. 2d 484 (1993). Specifica lly
, res judicata bars a subsequent action if succe ssful prosec ution of that action wo uld in eff ect

-9-nullify the judgme nt enter ed in the initial action. Restatement (S econd) of J udg ments

§ 22(2)( b) (1982); Carey v. Neal, Cortina & Associates
, 216 I ll. App. 3d 51, 58 (1 991) (desc ribing subsection 22(2)( b) of the Restatement as a “ ‘common law’ rule of compulsory
counter claim”)

. ¶ 39 Neither the succe ssful nor unsucce ssful prosec ution of FCL ’s curr ent brea ch of contra ct counter claim ag ainst Sub u rban would nullify the previous decla ratory judgme nt. Fur thermore
, as discussed above, the counter claim does not involve the same operative fac ts

as the ear lier decla

ratory judgme nt. FCL ’s b re ach of contra ct claim was evident afte r the
court ruled in the decla

ratory judgme nt action that FCL was not an additional insured under the policy Westfield issued to J AK. The narr ow purpose of the decla ratory judgme nt action

was to settle t h e co ntroversy of FCL ’s status as an additional insured befor e Westfield violated any co n t ractual obligation. See W aste Managem ent, Inc. v. International Surplus Lines Insurance Co.
, 144 I ll. 2d 178, 205-06 (1991). Moreove r, Suburban was not a party to the decla ratory judgme nt action, did not seek to intervene in that matter, and its prese nce was not nece ssary in the decla ratory judgme nt action. I n the decla rator y j u d gm ent action, the
court was obviously able to rea ch a final j u d gm en t wi thout the presence of S uburban, and FCL and Westfield never sug g ested that their interests wer e so m eh o w compromised by Suburban’s a

bsence . See John J. R ickhoff Shee t Metal Co. , 394 I ll. App. 3d at 563. ¶ 40 Acc ording ly
, we conclude that an identity of cause of action does not exis t betwee n the decla ratory judgme nt action and FCL ’s prese nt counter claim and, thus, FCL ’s counter claim is not barre d by res judicata

.

¶ 41 B. Summary J udg ment in the Tort Action ¶ 42 Suburban argues that FCL ’s counter claim is also barr ed by res judicata due to the circ uit court’s May 2010 awa

rd of summary judgme nt in favor of S uburban in the t o rt ca s e. That final judg ment disposed of both Oshana ’s t ort claim and FCL ’s contributi on claim aga inst Suburban, and this cour

t affir med that judg ment in J anuar y 2012. ¶ 43 Suburban’s argument lacks merit

. Al t h o u gh there is an identity of parties in the May 2010 summary judgme nt and the brea ch of contra ct coun t er claim, there is no identity of

cause of action betwee n that s u mm a r y ju d g me n t a

n d th e c ounterc laim. Specifica lly
, Oshana ’s claim and FCL ’s contribution counter claim ag ainst Suburb an al l eg ed, in tort, Suburban’s
neg lige nce conce rning its failure to supervise and failure to war n. In contra st, FCL ’s prese nt brea ch of contra ct counter claim alleg ed that Suburban failed to abide by contra ct provisions that require d Suburban t o ensure that its subcontrac tors obtained C GL insurance cover age for FCL

. Moreove r, when FCL alleg ed brea ch of contra ct ag ainst Suburban in its amende d
counter claim, FCL wa s n o t attempting to relitig ate the previously adjudicate d issue of Suburban’s liability in tort for Oshana ’s injuries. I nstead, FCL alleg ed an entirely new cause of ac tion that arose upon the a djudication of the de clar atory judgme nt action.

¶ 44 I I I . CONCL USI ON ¶ 45 FCL ’s brea ch of contra ct counter claim was not litigated in the prior decla ratory judgme nt actio n an d May 2010 summary judgme nt, and res judicata does not bar FCL ’s brea ch of

-10-contra ct counter claim. Acc ording ly , the judg ment of the c ircuit court is re verse d.

¶ 46 Reverse d.

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