Insurance Claim – Judicial Estoppel

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WI Court of Appeals – District IV

Case Name: Melinda Wagner, et al. v. Allstate Property and Casualty Insurance Company, et al.

Case No.: 2018AP162

Officials: Sherman, Blanchard and Fitzpatrick, JJ.

Focus: Insurance Claim – Judicial Estoppel

In this lawsuit initiated in the La Crosse County Circuit Court, Melinda Wagner claims that she was injured in an auto accident. Wagner requests monetary damages from the driver of the other vehicle, Trisha Stratman; Stratman’s insurer, Allstate Property and Casualty Insurance Company; and Wagner’s auto underinsurer, Acuity. The Insurers moved for summary judgment requesting that Wagner’s claims against them be dismissed pursuant to the doctrine of judicial estoppel. According to the Insurers, Wagner failed to disclose her claims against the Insurers in her previous bankruptcy, that failure was clearly inconsistent with Wagner’s lawsuit against the Insurers and, as a result, judicial estoppel applies. See Olson v. Darlington Mut. Ins. Co., 2006 WI App 204, ¶¶8-11, 296 Wis. 2d 716, 723 N.W.2d 713 (judicial estoppel requires that positions taken by a party in two separate cases be “clearly inconsistent”). The circuit court granted the Insurers’ motion, and Wagner appeals.

Under Wisconsin law, the application of judicial estoppel also requires that any failure of Wagner to disclose her claims against the Insurers in the bankruptcy court was caused by “cold manipulation” rather than mistake. See State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996). We conclude that there are genuine issues of material fact regarding whether any failure of Wagner to disclose her claims against the Insurers in her bankruptcy was based on mistake rather than an intentional failure to disclose. Therefore, summary judgment was not appropriate. Accordingly, we reverse the order of the circuit court and remand for further proceedings consistent with this opinion.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.