In Wagner v. Allstate Property and Casualty Insurance Co. (2018AP162), the Court of Appeals District IV declined to dismiss a personal injury case based on the doctrine of judicial estoppel. The court said it was unclear whether the plaintiff intentionally contradicted her claim in a previous bankruptcy case.

In April 2015 plaintiff Melinda Wagner was injured in a car accident. Wagner later filed the instant lawsuit against the other driver’s insurer Allstate and her own insurer Acuity. The insurers sought to dismiss the action based on the doctrine of judicial estoppel. The insurers argued Wagner failed to disclose her claims against the insurers as required in her previous filing for bankruptcy.

Under Wisconsin case law, the doctrine of judicial estoppel, which states that a party cannot take a position contrary to a position taken in a separate case, requires an intentional misrepresentation by the party. The appeals court agreed that Wagner did present a position in the personal injury case against the insurers inconsistent with her position in the bankruptcy case by failing to disclose the case against the insurers during the bankruptcy proceedings. However, the court found there were genuine issues of material fact as to whether Wagner’s failure to disclose the information was intentional and remanded the case to circuit court.