 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Cunningham v. Reliable Concrete Pumping3/7/2005
JUDGES: Concurring: H Joseph Coleman Mary Kay Becker
PUBLISHED
Judicial estoppel is an equitable doctrine that precludes a party from gaining an advantage by asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position. 'The purposes of the doctrine are to preserve respect for judicial proceedings without the necessity of resort to the perjury statutes; to bar as evidence statements by a party which would be contrary to sworn testimony the party has given in prior judicial proceedings; and to avoid inconsistency, duplicity, and waste of time.' In this case, Richard and Marci Cunningham (Cunningham) filed their petition in bankruptcy under Chapter 7 of the Bankruptcy Code, but failed to list in their schedules a third-party personal injury claim arising out of a workplace injury. Following receipt of a discharge and closing of their bankruptcy as a no-asset case, Cunningham sued Reliable Concrete Pumping, Inc. and its division, Reliable Hardware & Equipment, Inc. (collectively 'Reliable') for this workplace injury. Because the trial court properly granted Reliable's motion for summary judgment of dismissal based on judicial estoppel, we affirm.
Richard Cunningham suffered a workplace injury in September 1997 and developed related symptoms two years later. It appears that he filed a claim for worker 's compensation with the Department of Labor and Industries, which the Department later closed.
In November 1999, Reliable sued Cunningham to collect payment for building materials and supplies. Cunningham asserted a personal injury counterclaim based on the 1997 workplace injury. The collection action and the related personal injury counterclaim were dismissed in January 2003. In May 2000, Cunningham filed a petition under the Bankruptcy Code, but did not list the personal injury claim against Reliable in the bankruptcy schedules. It is unclear from the record that is before us whether Cunningham disclosed the claim to either the trustee or creditors at the first meeting of creditors. The bankruptcy court granted a discharge, and the trustee determined there was no property available for distribution to creditors.
Eleven days after the discharge, Cunningham commenced this personal injury action against Reliable based on the 1997 workplace injury that was the subject of Cunningham's counterclaim against Reliable in 1999. Upon learning of Cunningham's claim against Reliable, the trustee for the Cunningham bankruptcy re-opened the bankruptcy case and revoked her previously filed report of no distribution.
Reliable moved for summary dismissal of this action, arguing that judicial estoppel barred the personal injury claim. The trial court granted the motion and denied Cunningham's motion for reconsideration. Cunningham appeals.
JUDICIAL ESTOPPEL
Cunningham argues that there were genuine issues of material fact that precluded summary judgment. Specifically, Cunningham contends that although the claim against Reliable was not listed in the bankruptcy schedules, it was orally disclosed both at the first meeting of creditors and in a post-discharge letter to the bankruptcy trustee. Accordingly, Cunningham argues that the position he took in the bankruptcy proceeding was not inconsistent with his position in this action, and therefore the application of judicial estoppel to bar this action is inappropriate. We disagree.
In a summary judgment motion, the moving party bears the initial burden of showing the absence of an issue of material fact. 'If the moving party is a defendant and meets this initial showing, then the inquiry shifts to the party with
Page 1 2 3 4 5 Washington Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|