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Otis v. Arbella Mutual Insurance Co.3/14/2005
table grounds, relieve Otis from the application of judicial estoppel. In the earlier trial, Otis's evidence and jury arguments with respect to the issue of his comparative negligence were not the product of some inadvertent mistake. Nor is his present change in position attributable to some newly discovered evidence -- his present theory of malpractice rests on the assertion that the ostensibly correct version of where the impact occurred was apparent from police reports made available to both counsel prior to trial. Thus, at the time of trial, Otis presented a version of events based on an eyewitness account of the accident, but, now that it suits his purposes to present a different version, he contends that police investigation of the scene substantiates a scenario contrary to that of the eyewitness. Where Otis now seeks to present a version of events different from the version he successfully presented and argued to the jury at the original trial, and where no equitable factors militate against the imposition of judicial estoppel, the judge did not abuse his discretion in applying judicial estoppel to bar Otis's present claims.
Notwithstanding that Otis's present suit fits squarely within the doctrine of judicial estoppel, Otis raises a series of arguments to try to evade the doctrine's reach. Those arguments are unpersuasive. First, Otis contends that the doctrine should not be applied to him because he is bringing the present suit as an assignee of Cusick, and therefore presenting Cusick's claims, not his own. The assignment of Cusick's claims to Otis does not change the fact that the present suit is being brought by Otis himself in his own name. See Restatement (Second) of Contracts ยง 336 (4) and comment h (1981) ("conduct of the assignee or his agents may, like that of any obligee, give rise to defenses and claims which may be asserted against him by the obligor"). The equitable doctrine of judicial estoppel, based on the need to preserve the integrity and appearance of the judicial system itself, is not affected by how a party came to possess the claims now being brought. The issue is whether Otis is asserting a position inconsistent with a position previously and successfully asserted. That it is an assignment that now makes it beneficial for him to change position does not ameliorate the harm to the judicial system posed by such conduct. See Alcman Servs. Corp. v. Samuel H. Bullock, P.C., 925 F. Supp. 252, 257-258 (D.N.J. 1996), aff'd, 124 F.3d 185 (3d Cir. 1997) (judicial estoppel barred previously prevailing plaintiff from pursuing malpractice claim as assignee against former defendant's attorney). Assuming (without deciding) that a party's status as assignee might properly be considered as an equitable factor in assessing whether to apply judicial estoppel, a party's status as assignee does not automatically make it an abuse of discretion for a judge to apply the doctrine. In light of the purpose of judicial estoppel, "we are not prepared to say that an assignee is always free to take in that capacity positions that he would be estopped from taking in his personal capacity." Franco v. Selective Ins. Co., 184 F.3d 4, 9 (1st Cir. 1999).
Otis next contends that judicial estoppel should not be applied to him because he made no inconsistent statement under oath concerning where he was in the roadway at the moment of impact. Arguments about where he had been in relation to the center line of the highway were made by his counsel, based solely on another witness's testimony. Some courts have identified protection of the oath itself as one of the purposes of judicial estoppel. See, e.g., Bates v. Long Island R.R., 997 F.2d 1028, 1037-1038 (2d Cir.), cert. denied, 510 U.S. 992 (1993); Konstantinid
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