ORDER DISMISSING WITH PREJUDICE
Petitioner asked the WCC to find that she was an employee of
a grocery store when she was injured while demonstrating food
products to store customers. The workers' compensation
insurer moved to dismiss, arguing, among other things, that
claimant had sued the store for negligence, successfully
resisted a motion for summary judgment by stating under oath
that she was an independent contractor, not an employee, and
recovered $60, 000 in settlement of her tort claim.
The doctrine of judicial estoppel precludes petitioner from
taking a position in this proceeding contrary to the position
taken in the tort case. Motion to dismiss with prejudice
Estoppel and Waiver: Judicial Estoppel. The
doctrine of judicial estoppel precludes petitioner from
asserting she is was an employee when injured in a
workers' compensation proceeding where she sued the
alleged employer for negligence, successfully resisted a
motion for summary judgment by stating under oath that she
was an independent contractor, not an employee, and recovered
$60, 000 in settlement of her tort claim.
Petitioner, Barbara Birch (Birch), seeks judgment determining
that she was an employee of Cut Bank IGA Store
(IGA) when she was injured on April 28, 1994. At
the time of the injury, she was demonstrating food products
to store customers.
Following her injury, Birch sued IGA for negligence. IGA
responded that she was its employee and that her claim was
therefore barred under the exclusive remedy doctrine of the
Workers' Compensation Act, section 39-71-411, MCA. Birch
insisted she was an independent contractor, successfully
opposing IGA's motion for summary judgment based on the
employment issue, and then persuaded IGA to pay $60, 000 to
settle her tort claim. She then filed the present petition to
collect workers' compensation benefits.
of Case on Agreed Facts and Exhibits
Birch and IGA have submitted this case for decision based on
an Agreed Statement of Facts and an agreed set of exhibits.
The exhibits consist of copies of various pleadings, motions,
and other documents, including a deposition of Birch, from
the district court litigation.
Based on the agreed facts and exhibits, Birch and IGA submit
the following issues for the Court's determination:
1.Whether the claimant was an employee of Cut Bank IGA when
2.Whether claimant is estopped or collaterally estopped from
claiming workers' compensation benefits.
3.Whether the claimant's claim for workers'
compensation benefits is barred by the doctrine of judicial
admissions and/or judicial estoppel.
4.Whether the claimant's claim for workers'
compensation benefits is barred by the holding in Torres
v. State of Montana, Mont., P.2d, 52 St.Rep. 833 (1995)
and/or the election of remedies.
(Stipulation to Issues.)
The Court finds the judicial estoppel argument to be
dispositive. The doctrine precludes a party from taking a
position or asserting a fact in one judicial proceeding and
thereafter taking an inconsistent position in a subsequent
proceeding. Fiedler v. Fiedler, 266 Mont. 133, 139,
879 P.2d 675, 679 (1994). The nature of the doctrine was set
out in Rowland v. Klies, 223 Mont. 360, 368, 626
P.2d 310, 316 (1986), and was repeated in Brown v.
Small, 251 Mont. 414, 418, 825 P.2d 1209, 1212 (1992),
Judicial estoppel may arise when a person has taken a
position or asserted a fact under oath in a judicial
proceeding contrary to the position he is taking in the
present litigation ... The rule's purpose is to suppress
fraud and prevent abuse of the judicial process by
deliberate shifting of positions to suit the exigencies of a
particular action, and it will not be applied when the
previous act or statement is uncertain or based on
undetermined facts, but only when it is clear and certain.
(Citations omitted.) [Emphasis in original.]
Judicial estoppel applies not just to facts a party presents
under oath, but also to positions taken. "Judicial
estoppel is equally applicable to a party like Brown who
seeks to take a position contrary to his pleadings in an
earlier judicial proceeding." Brown, 251 Mont.
at 418, 825 P.2d at 1212. In Fiedler the Supreme
Court elaborated that a party cannot take the opposing