Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Birch v. Liberty Mutual Fire Insurance Co.

Court of Workers Compensation of Montana

March 14, 1995

BARBARA BIRCH Petitioner
v.
LIBERTY MUTUAL FIRE INSURANCE COMPANY Respondent/Insurer for CUT BANK IGA STORE Employer.,

          ORDER DISMISSING WITH PREJUDICE

          BARBARA BIRCH.

         Summary: 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.

         Held: 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 granted.

         Topics:

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.

         Introduction

         ¶1 Petitioner, Barbara Birch (Birch), seeks judgment determining that she was an employee of Cut Bank IGA Store (IGA)[1] when she was injured on April 28, 1994. At the time of the injury, she was demonstrating food products to store customers.

         ¶2 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.

         Submission of Case on Agreed Facts and Exhibits

         ¶3 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.

         Issues

         ¶4 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 injured.
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.)

         Discussion

         ¶5 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), as follows:

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.]

         ¶6 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 viewpoint ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.