Michigan Court of Appeals; Docket #354365, 354953; Unpublished
Judges Ronayne Krause, Cameron, and Rick; Per Curiam
Official Michigan Reporter Citation: Not Applicable; Link to Opinion
In this unanimous unpublished per curiam decision, the Court of Appeals reversed the trial court’s summary disposition order dismissing Plantiff Laura Fortman’s third-party action against Defendants Dusty Dean Schneider and Duaine Morin. The Court of Appeals held that the trial court erred in ruling that the underlying action was barred by judicial estoppel in light of comments Fortman made about her injuries in a prior first-party action, which Schneider and Morin argued were at odds with her claims about her injuries in this case. In so holding, the Court observed that (1)there was no evidence that the court presiding over the prior first-party action relied on Fortman’s allegedly contrary position, (2) Fortman’s claims in the prior first-party action action were not wholly inconsistent with her claims in this case, nor was there any indication that any alleged changing of her position the product of cynical gamesmanship or deliberate manipulation of the courts, and (3) application of the doctrine was not necessary to avoid a miscarriage of justice. Thus, the doctrine did not apply.
The subject motor vehicle collision occurred in 2016, as Fortman was traveling as a passenger in a motor vehicle driven by Schneider and owned by Morin. Approximately four years prior, in 2012, Fortman suffered a myriad of injuries in a pedestrian-versus-motor vehicle collision, and settled her subsequent first-party action against State Farm Mutual Automobile Insurance Company (“State Farm”), her no-fault insurer at the time, for payment of her medical bills related to her injuries. After the subject collision of 2016, Fortman’s new no-fault insurer, Progresive Marathon Insurance Company (“Progressive”), denied payment on her claims for PIP benefits, arguing that Fortman’s injuries were solely attributable to the 2012 crash. Fortman filed a first-party action against Progressive in the Washtenaw County Circuit Court, which the parties eventually settled. Then, in February 2018, Plaintiff filed a third-party action against Schneider and Morin in the Jackson County Circuit Court with respect to the 2016 crash. Schneider and Morin moved for summary disposition, arguing that Fortman’s suit was barred by judicial estoppel because, in her 2016 first-party action against Progressive, she averred that her injuries were caused entirely by the 2016 crash, whereas in this case, she was claiming that she had sustained both new injuries as a result of the 2016 crash and aggravations of injuries she sustained in the 2012 crash. The trial court agreed, granting Schneider and Morin’s motion.
The Court of Appeals reversed the trial court’s summary disposition order, noting first that, in Opland v Kiesgan, 234 Mich App 352 (1999), a previous Court of Appeals panel held that, in order for the doctrine of judicial estoppel to apply, “there must be some indication that the court in the earlier proceeding accepted that party’s position as true.” In this case, there was no such indication, as that case settled and was ultimately dismissed on the basis of the settlement.
“In this case, there is no indication that the Washtenaw Circuit Court accepted as true plaintiff’s position that she sustained all of her injuries in the 2016 accident. See Opland, 234 Mich App at 362 (holding that, in order for the doctrine of judicial estoppel to apply, ‘there must be some indication that the court in the earlier proceeding accepted that party’s position as true’) (quotation marks and citation omitted). Instead, plaintiff and Progressive reached a settlement concerning plaintiff’s first-party claim and then, on the basis of their agreement to settle the matter, plaintiff’s complaint was dismissed.”
The Court of Appeals noted second that, in Spohn v Van Dyke Pub Sch, 296 Mich App 470 (2012), a previous Court of Appeals panel held that, “in order for the doctrine of judicial estoppel to apply, the claims must be wholly inconsistent.” In this case, the Court determined that Fortman’s claims in the two subject lawsuits were not wholly inconsistent: in both cases, Fortman disclosed that she suffered injuries in the 2012 accident, then suffered new injuries in the 2016 crash. In neither case did she maintain that her injuries were solely attributable to the 2016 crash. Thus, the Court further concluded that there was no evidence that Fortman “sought to deliberately manipulate the courts through cynical gamesmanship.”
“Plaintiff also did not offer wholly inconsistent positions in the Washtenaw Circuit Court and the Jackson Circuit Court. See Spohn, 296 Mich App at 480 (holding that, ‘in order for the doctrine of judicial estoppel to apply, the claims must be wholly inconsistent’) (quotation marks and citation omitted). Plaintiff maintained in both actions that she suffered injuries as a result of the 2016 accident, and there is no indication that plaintiff sought to deliberately manipulate the courts through cynical gamesmanship. Indeed, in both actions, plaintiff disclosed that she had suffered injuries in the 2012 accident. In other words, plaintiff argued that she suffered new injuries from the 2016 accident, but she did not contend that her injuries were solely due to the 2016 accident. Notwithstanding plaintiff’s statement in an interrogatory response that she felt she had made a full recovery from her 2012 traumatic brain injury, that was not the only injury she suffered in 2012, and she simultaneously stated that she ‘still had some minor residuals from the previous crash.’ The issue of whether the injuries from the 2016 accident were new, as opposed to an exacerbation of the injuries associated with the 2012 accident, is a question of causation.”
The Court of Appeals noted third that application of the doctrine of judicial estoppel was not necessary in this case to avoid a miscarriage of justice, because Schneider and Morin could still “impeach [Fortman’s] credibility at trial and . . . attempt to demonstrate that the alleged 2016 injuries did not result in a serious impairment of body function that affected [Fortman’s] ability to lead her normal life,” and because, “[e]ven if [Schneider and Morin] are correct that Progressive improperly relied on plaintiff’s statements that her injuries were caused solely by the 2016 accident when settling the Washtenaw case, this would place Progressive—not defendants—at a financial disadvantage.”