The opinion of the court was delivered by: LIFLAND
Rarely is a judge confronted with a paradigmatic case for the application of the doctrine of judicial estoppel. The extraordinary facts of this case, where defendant has admitted to lying in order to manipulate the legal process, present just such a situation.
On March 1, 1992, in South Brunswick, New Jersey, plaintiff, Jorge Carnero, was rear-ended in his automobile by a truck rented by defendant Kimberly Deitert. Plaintiff originally sued Budget Rent-a-Car and Deitert in New York. By stipulation, that case was dismissed against Deitert without prejudice on June 8, 1993. Subsequently, on February 22, 1994, plaintiff filed a complaint against Deitert with this Court, claiming negligence and seeking damages.
At the time of the accident, defendant Deitert told the police that she had been driving the truck that struck plaintiff's vehicle. She pled guilty in the Municipal Court to careless driving and paid a $ 50.00 fine. Seplowe Aff. Ex. G. She also indicated to her rental car company that she had been driving the truck and that Richard Hoelzel had been a passenger at the time of the accident. Id. Ex. D. In connection with a motion before the New York court, Deitert averred by affidavit on January 25, 1993 that she was operating the rental truck at the time of the accident. Id. Ex. F, Affidavit of Kimberly Deitert, January 25, 1993, P 5. Her Answer to the New York complaint also admitted that she had been operating the truck. Id. Ex. A. However, her Answer to the Complaint filed in this action denies that she was the driver. Answer at P 5.
On February 24, 1995, in a letter to the Middlesex County Arbitration Administrator in connection with a related case to which plaintiff here is not a party, which letter was copied to Carnero's counsel, counsel for defendant Deitert stated that "Kimberly Deitert has advised this office that she was not driving the truck, which was rented from Budget Rent-A-Car, and Richard Hoelzel was driving." Def. Ex. 1. At her deposition on September 19, 1995, Deitert also denied that she had been driving the truck. She claimed that she had lied about being the driver in order to protect her boyfriend, Richard Hoelzel, who had been driving without a license or authorization in the rental agreement. Seplowe Aff. Ex. F at 20-21. Deitert has submitted an affidavit from Richard Hoelzel stating that he was driving at the time of the accident. Def. Ex. 2. He avers: "After the accidence [sic], I pulled the Isuzu over to the side of the road and Ms. Deitert and I exchanged positions in the vehicle before anyone noticed. As I was not a registered driver nor was I authorized to drive the Isuzu pursuant to the rental agreement, we exchanged positions." Id. This affidavit does not provide Hoelzel's address and is not notarized. Furthermore, the original has not been filed with the Court.
Carnero now moves for summary judgment as to liability. He argues that Deitert should be judicially estopped from claiming that she was not driving the truck at the time of the accident. Carnero contends that, in light of Deitert's plea of guilty to careless driving and her New York affidavit and Answer, she should be found liable for negligence as a matter of law and summary judgment on liability should be entered in Carnero's favor. For the reasons set forth below, the Court agrees and will grant summary judgment against Deitert on liability.
Over a three-year period, Deitert repeatedly stated, and swore, that she had been driving the truck at the time it struck plaintiff's car. Now she wishes to change her story, purportedly to make right her previous, and successful,
attempt at fraud. By her own admission, Deitert's sole motivation was to mislead the Municipal Court and the New York District Court as to her true role (and the true role of Hoelzel) in the accident. Applying the doctrine of judicial estoppel, the Court will not permit Deitert to change her story.
The Third Circuit recently elaborated upon the contours of judicial estoppel in Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3d Cir. 1996). The court presented the general purpose of the doctrine as follows:
Judicial estoppel, sometimes called the "doctrine against the assertion of inconsistent positions," is a judge-made doctrine that seeks to prevent a litigant from asserting a position inconsistent with one that she has previously asserted in the same or in a previous proceeding. It is not intended to eliminate all inconsistencies, however slight or inadvertent; rather, it is designed to prevent litigants from "playing 'fast and loose with the courts.'" Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953) (citation omitted).
81 F.3d at 358. The doctrine is applicable whenever a party (1) has asserted inconsistent positions (2) in bad faith, i.e. with the intent to play fast and loose with the court. Id. at 361. The party against whom the estoppel is asserted need not have benefited by his or her earlier position. Id. However, "application of the doctrine of judicial estoppel is particularly appropriate in situations... where the party benefitted from its original position." Delgrosso ...