Pechin v. Lowder

The trial court did not abuse its discretion in declining to apply the doctrine of judicial estoppel, even though the plaintiffs failed to amend their bankruptcy petition to include the contingent claim against the defendants for the underlying automobile accident, since the plaintiffs voluntarily dismissed their bankruptcy case prior to filing suit and paid off their listed creditors in full.

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This case involves a lawsuit by Halbert M. Lowder, Jr. and his wife, Michelle Lowder, against Brian Richard Pechin and his employer, Kaufman Tire, Inc., to recover damages from a motor vehicle accident. Prior to the accident at issue, the Lowders had filed a Chapter 13 bankruptcy petition, but failed to amend their disclosures after the accident to include the contingent claim against Pechin and Kaufman Tire as an asset. Pechin and Kaufman Tire moved for summary judgment, arguing that the Lowders’ claim is barred by judicial estoppel. The trial court denied their motion and this Court granted interlocutory review of the trial court’s order. Because the trial court did not abuse its discretion in declining to apply the doctrine of judicial estoppel under the facts of this case, we affirm. The relevant facts are undisputed. In October 1997, the Lowders filed a petition for Chapter 13 bankruptcy relief. At the time, they did not have any contingent or unliquidated claims against third parties. The bankruptcy court confirmed their Chapter 13 plan on December 16, 1997. In October 2000, Halbert Lowder was involved in a motor vehicle accident with Pechin, who was allegedly acting in his capacity as an employee of Kaufman Tires. Although the accident occurred while the Lowders’ bankruptcy still was pending, they did not amend their bankruptcy schedules to reflect a contingent claim against Pechin or Kaufman Tires.

In July 2001, the Lowders voluntarily dismissed their bankruptcy case without prejudice. They subsequently sold their home and paid off all of their listed creditors in full. In October 2002, the Lowders filed a personal injury and loss of consortium action against Pechin and Kauffman Tire. Pechin and Kaufman Tire moved for summary judgment, arguing that the Lowders should be judicially estopped from pursuing the action. The trial court denied the motion for summary judgment, and we granted the application for interlocutory review.

Pechin v. Lowder

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