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30 Loy. L. A. L. Rev. 323 (1996-1997)
The Judiciary Says, You Can't Have It Both Ways: Judicial Estoppel--A Doctrine Precluding Inconsistent Positions

handle is hein.journals/lla30 and id is 351 raw text is: THE JUDICIARY SAYS, YOU CAN'T HAVE IT BOTH WAYS: JUDICIAL ESTOPPEL- A DOCTRINE PRECLUDING INCONSISTENT POSITIONS A party cannot occupy inconsistent positions; and where one has an election between several inconsistent courses of action, he will be confined to that which he first adopts. -Melville M. Bigelow, 18721 I. INTRODUCTION Suppose X is injured in an industrial accident and sues Y for negligence based on an agency theory that Y is X's employer. At trial X successfully proves that Y is indeed the employer and re- covers a judgment against Y. Now, suppose that X wants to sue Z, Y's insurance carrier, but Z has a provision that employees may not directly sue the insurance company.2 Should X now be allowed to assert that X is not an employee of Y so X may recover against Z? Suppose that in a Chapter 7 bankruptcy proceeding a debtor fails to list a pending personal injury lawsuit against a third party. All debts have been discharged, and the debtor has sworn there are no more assets. Thus, it seems that the debtor has implicitly asserted that there is no pending personal injury lawsuit. Should the debtor now be allowed to proceed with this pending personal injury suit? Is it fair for debtors to use the court system to dis- charge their debts and then benefit from the lawsuit to the exclu- sion of their creditors? If the personal injury suit is not allowed to proceed, should the previous tortfeasor be allowed to escape the consequences of the previous tortious acts? These questions lie at the heart of the doctrine of judicial es- toppel, a doctrine that when invoked, precludes a party from 1. MELVILLE M. BIGELOW, A TREATISE ON THE LAW OF ESTOPPEL 578 (1872). 2. The above hypothetical is almost identical to the facts of Allen v. Zurich Ins. Co., 667 F.2d 1162 (4th Cir. 1982).

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