Insurance Claim Judicial Estoppel.

Byline: Derek Hawkins

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...