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Otis v. Arbella Mutual Insurance Co.3/14/2005
Suffolk.
November 2, 2004.
Estoppel. Judicial Estoppel. Attorney at Law, Malpractice. Insurance, Defense of proceedings against insured, Insurer's obligation to defend. Consumer Protection Act, Insurance. Negligence, Attorney at law, Insurance company, Misrepresentation. Contract, Performance and breach, Implied covenant of good faith and fair dealing.
Civil action commenced in the Superior Court Department on June 21, 1999.
The case was heard by Christopher J. Muse, J., on motions for summary judgment.
The Supreme Judicial Court granted applications for direct appellate review.
The plaintiff, John F. Otis, III, has appealed from a decision of the Superior Court, which granted summary judgment in favor of all defendants on the ground that Otis's claims against them were barred by the doctrine of judicial estoppel. The facts and theories on which Otis's present claims are based are the precise opposite of the facts and theories that Otis successfully asserted in prior litigation. Despite taking inconsistent positions in sequential lawsuits, Otis contends that the doctrine of judicial estoppel should not have been interposed to prevent him from pursuing his present suit. We granted the applications of both parties for direct appellate review. For the following reasons, we conclude that there was no error in the judge's determination that judicial estoppel should operate to bar Otis's present claims.
1. Background
In 1992, Otis sued one Todd Cusick to recover for injuries he sustained in an automobile accident. That suit was predicated on the following facts. At approximately 1 A.M. on October 5, 1991, Otis and a companion, Shannon O'Malley, were crossing Route 18 in Weymouth when they were struck by a vehicle driven by Cusick. Cusick fled the scene, but was later apprehended and charged with operating a motor vehicle while under the influence of liquor (causing serious bodily injury), and leaving the scene of an accident. Cusick, whose level of intoxication was such that he claimed to have no memory of these events, pleaded guilty to both offenses pursuant to North Carolina v. Alford, 400 U.S. 25, 37 (1970).
Cusick was insured by Arbella Mutual Insurance Company, and Arbella retained the law firm of Eckert, Seamans, Cherin & Mellott (ESCM) to represent Cusick in connection with Otis's personal injury claims. ESCM assigned the case to attorney Anthony Moccia, a partner at ESCM. In December, 1993, Arbella tendered a check in the amount of the policy limit ($50,000), without obtaining a release in favor of Cusick. The case was ultimately tried in 1998.
Moccia's defense of Cusick was predicated in large measure on a theory of Otis's comparative negligence. Otis had been intoxicated at the time of the accident, with a blood alcohol level in excess of 0.14 per cent. And, not being in a crosswalk, Otis had a duty to yield the right of way to an oncoming vehicle. See 720 Code Mass. Regs. ยง 9.09(5) (1996). Moccia argued to the jury that, instead of proceeding to a nearby crosswalk, an intoxicated Otis and O'Malley had instead walked out into the middle of a State highway "and then didn't heed a vehicle coming." It was negligent, he argued, for Otis "to walk into the middle of a tate highway at one o'clock in the morning and take chances." By contrast, the driver of the vehicle (see note 3, supra) had suddenly and unexpectedly come on two pedestrians crossing the highway late at night, and had understandably slammed on the brakes, causing the vehicle to swerve and hit Otis and O'Malley. Moccia thus argued that Otis's failure to use reasonable care was a proximate cause of the accident
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