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Whitacre Partnership v. Biosignia2/6/2004
se).
This interpretation is bolstered by the statement in Davis v. Wakelee that estoppel is appropriate "especially if [the shift in position] be to the prejudice of the party who has acquiesced in the position formerly taken by him." 156 U.S. at 689, 39 L.Ed. at 584 (emphasis added). As discussed above, equitable estoppel requires the party asserting the estoppel to have detrimentally relied on the earlier representations of the party to be estopped. E.g., Konstantinidis v. Chen, 626 F.2d at 937. This is not, however, an element of judicial estoppel, which seeks to protect courts, not litigants, from manipulation. Id. By transmuting detrimental reliance from an essential element to a factor that makes an estoppel "especially" appropriate, the Davis v. Wakelee Court thus took a crucial analytical step in the evolution of the doctrine of judicial estoppel in the United States Supreme Court's jurisprudence. If Howard marked the emergence of a distinct offshoot from equitable estoppel, Davis v. Wakelee signaled its analytical independence.
The second case cited in Davis v. Wakelee in support of the rule articulated there is Ry. Co. v. McCarthy, 96 U.S. 258, 24 L.Ed. 693 (1877). In McCarthy, the defendant railroad proved at trial that it was incapable of transporting certain cattle on a Sunday solely because of a lack of cars. Id. at 265, 24 L.Ed. at 695. On appeal, the defendant alleged that it had failed to deliver the cattle because a Sunday shipment would have violated West Virginia's "Sunday Law." Id. at 267, 24 L.Ed. 2d at 696. The United States Supreme Court held that defendant was estopped to make this argument, reasoning that " here a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot, after litigation has begun, change his ground, and put his conduct upon another and a different consideration. He is not permitted thus to mend his hold." Id. at 26768, 24 L.Ed. at 696 (emphasis added) (citations omitted).
McCarthy is probably the earliest articulation of the "mend the hold" doctrine, an equitable doctrine that precludes the assertion of inconsistent litigation positions, usually concerning the meaning of a contract, within the context of a single lawsuit. Robert Sitkoff, Comment, "Mend the Hold" and Erie: Why an Obscure Contracts Doctrine Should Control in Federal Diversity Cases, 65 U. Chi. L. Rev. 1059, 1064 (1998); Anderson & Holober, 4 Conn. Ins. L.J. at 692-93. The metaphor that gives the doctrine its name derives from wrestling terminology and means "to get a better grip (hold) on your opponent." Harbor Ins. Co. v. Cont'l Bank Corp., 922 F.2d 357, 362 (7th Cir. 1990). Traditionally, the "mend the hold" doctrine has been applied only to inconsistent positions asserted within the same legal proceeding, although at least one modern case has extended the doctrine to inconsistent positions asserted in two different proceedings. Anderson & Holober, 4 Conn. Ins. L.J. at 692 n.413 (citing Rottmund v. Cont'l Assurance Co., 813 F. Supp. 1104, 1111 (E.D. Pa. 1992)). It is a rule generally applied in actions on a contract, most often against insurance companies that attempt to shift positions in the course of litigation in an effort to deny policyholders' claims. Id. at 693-94. It is unsettled whether the doctrine is a procedural rule or a substantive rule of contract law. See AM Int'l v. Graphic Mgmt. Assocs., 44 F.3d 572, 576 (7th Cir. 1995).
In Harbor Ins. Co. v. Cont'l Bank Corp., the United States Court of Appeals for the Seventh Circuit closely compared the doctrines of judicial estoppel and "mend the hold" and concluded that the two are "cousin ." 922 F.2d at 364 (applying Illinois law). The similarities b
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