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Otis v. Arbella Mutual Insurance Co.3/14/2005
line of Route 18 and entirely within Cusick's northbound lane of travel," and that he had "seen Cusick's car approaching, and yet had stood still in Cusick's lane of travel making no effort to get out of harm's way." Otis's demand letter went on to allege that, if the jury had been aware of these facts, " here can be no doubt" that the jury would have found Otis more than fifty per cent at fault for the accident, with a resulting verdict in favor of Cusick. See G. L. c. 231, ยง 85.
In his demand letter, Otis also alleged that Moccia had purposefully failed to communicate Arbella's and Cusick's respective positions on whether to take an appeal, resulting in a failure to file what allegedly would have been a meritorious appeal. Contrary to the position he had taken in opposing Cusick's motion for a new trial, Otis now claimed that the judge had erred in admitting evidence that Cusick's vehicle had run over O'Malley's head, that the evidence had had "no probative value," and that its introduction had been "highly prejudicial" to Cusick. That error, according to Otis's demand letter, "clearly presented a valid and winnable appellate issue."
In his second amended complaint, Otis alleged that these failures with respect to the defense and representation of Cusick "caused" the judgment against Cusick to enter, and that the judgment he (Otis) had obtained was "a result of" the defendants' negligence, breach of contract, breach of implied covenant of good faith and fair dealing, intentional and negligent misrepresentations, and violations of G. L. c. 93A. The defendants each moved for summary judgment on the ground that Otis's present assertions were diametrically opposed to those he had made in his original, successful suit against Cusick, and that his present claims should therefore be barred by judicial estoppel. The judge agreed, and entered summary judgment in favor of all defendants. The present appeal followed.
2. Discussion
"Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding." Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184 (1998). See East Cambridge Sav. Bank v. Wheeler, 422 Mass. 621, 623-624 (1996); Fay v. Federal Nat'l Mtge. Ass'n, 419 Mass. 782, 787-788 (1995). "The purpose of the doctrine is to prevent the manipulation of the judicial process by litigants." Canavan's Case, 432 Mass. 304, 308 (2000). As an equitable doctrine, judicial estoppel is not to be defined with reference to "inflexible prerequisites or an exhaustive formula for determining applicability." New Hampshire v. Maine, 532 U.S. 742, 751 (2001). Rather, the doctrine is properly invoked whenever a "party is seeking to use the judicial process in an inconsistent way that courts should not tolerate." East Cambridge Sav. Bank v. Wheeler, supra at 623.
Application of the equitable principle of judicial estoppel to a particular case is a matter of discretion. New Hampshire v. Maine, supra at 750, quoting Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). On appeal from a judge's decision to bar a litigant's claim on grounds of judicial estoppel, we therefore review for abuse of discretion. See Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 30-31 (1st Cir. 2004), and cases cited; Whitacre Partnership v. Biosignia, Inc., 358 N.C. 1, 38 (2004). Where, as here, application of judicial estoppel has resulted in the entry of summary judgment, abuse of discretion remains the appropriate standard -- if the judge has not abused his or her discretion in invoking the doctrine of judicial estoppel, the doctrine bars the claim in q
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