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The Cincinnati Ins. Co. v. Estate of Bohannon

An insurer was judicially estopped from taking an inconsistent legal and factual position to its earlier defense of a driver in an underlying suit.

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This is an appeal from the denial of motions for directed verdict and for judgment notwithstanding the verdict after a jury verdict for the Estate of Michael A. Bohannon, bankrupt, by his trustee in bankruptcy, Jeff MacLeod, against The Cincinnati Insurance Company for failure to defend him in Civil Action 29670, Gordon Superior Court in Mary and Henry VanGoosen v. Michael Anthony Bohannon et al, which resulted in a default judgment of $322,977.40 on June 1, 1995. Finding no error, we affirm.

The facts show that on February 11, 1993, Michael Anthony Bohannon was involved in a collision while driving a vehicle owned by Harry Harwell and insured by Cincinnati. It was undisputed that Bohannon was a permissive driver. Bohannon notified Harwell of the collision, and Harwell immediately notified Cincinnati. On February 12, 1993, Jeff Maran, Cincinnati’s adjuster, contacted both Bohannon and Harwell. Maran immediately investigated, took photographs of the collision scene, and talked to the injured Mary VanGoosen in the hospital. Maran considered Bohannon as an insured under the motor vehicle liability coverage. Therefore, Bohannon was included in the general releases for personal injury settlement for Tommy Chamlee, a passenger in the VanGoosen vehicle, and the property damage settlement of Mary and John VanGoosen. In June of 1993, Rebecca Meany Mitek, another adjuster for Cincinnati, replaced Maran in dealing with the VanGoosen personal injury claim; between June of 1993 and February of 1995, she contacted the VanGoosens 19 times but never contacted Bohannon, the additional insured.

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