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1. P sues D for $1,000 damages resulting from an automobile accident. The verdict and judgment grant P only $500. His claim, or cause of action, is “merged,” meaning that P cannot initiate a new suit for the other $500.

2. Same suit as (1), but D is found not to be liable at all. P is “barred” from making the same claim in a second suit against D.

3. P sues D and wins the full $1,000, but finds that D has no property within the state upon which execution can be levied. His remedy is to bring an action “on the judgment” in the courts of whatever state he can find where D does have property. This action will be governed by the rules of Full Faith and Credit; unless D defaulted in the first action and the first court had no jurisdiction over him, the court of the second state must duplicate the judgment of the first court. The two judgments do not merge, and P can levy (or sue in yet a third state) on either of them.

B. Scope of claim: Since through claim preclusion a judgment is conclusive with respect to the entire “claim” which it adjudicates, it is essential to determine exactly what the dimensions of a claim are.

1. Rule against splitting of claim: A claim can include much more than plaintiff actually chose to state in his complaint. Plaintiff cannot “split” his claim—if he sues upon any portion of a claim, the other aspects of that claim are merged in his judgment if he wins, and barred if he loses.

Example: Plaintiff claims $1,000 due under a single indivisible contract. He thinks there is a three in ten chance that a judge will find in his favor, and so he files ten separate suits, for $100 each, in the hope of winning at least a few of them. He has violated the rule against splitting a claim—the first judgment of the ten will merge with the others if he wins, in which case he has lost the other $900; if the first judgment comes out against him, it bars the others, and he has lost the entire $1,000.

a. Strict application: The rule against splitting a claim applies even where the plaintiff did not split her claim intentionally.

Example: Assume P has an insurance policy with two distinct parts: Part A entitles P to $100,000, and Part B entitles P to $50,000. Neither P nor her lawyer realizes there is a Part B at the time P’s lawyer files suit to collect the $100,000 under Part A. If P wins, she will be barred from later filing to collect on the $50,000 from Part B, since that claim will be considered “merged” with the first judgment.

Note: Where the splitting of a claim occurs through the gross incompetence of counsel, courts will sometimes refuse to strictly apply the rule against splitting, and will permit plaintiff to bring a new suit for the remainder of the claim.

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