Contradictory Statements of Fact used to Oppose Seperate Motions for Summary Judgment
Today the Court of Appeals filed it opinion in Southern Security Credit Union v. Cumis Insurance Society, Inc. One of the interesting aspects of this case was that the Court allowed the defendant to make two directly contradictory statements of fact in opposing two separate motions for summary judgment. The substance of the case involved whether Cumis, the insurer, was obligated to provide coverage to Southern Security under a bond. The claim related to a counterfeit check deposited by one of Southern Security's Customers.
Southern Security filed what the Court construed as two separate motions for summary judgment, each brought under a separate section of the bond. As to the first, Cumis stated that, for purposes of responding to the motion, it was admitted that the check was counterfeit and that the customer engaged in a scheme to defraud Southern Security. As to the second motion, Cumis stated that the customer "did not intend to commit a fraud by depositing...the subject cashiers check."
The Court of Appeals held that the doctrine of judicial estoppel did not bar Cumis's contradictory statements as they did not constitute "willful misstatements of fact." The Court reached this conclusion by noting that Rule 56.03 specifically allows parties to state that a fact is undisputed only for purposes of ruling on a motion for summary judgment. Given that Cumis did just this, the Court was unwilling to say that its representations were willful misstatements.