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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : : : : : : : ...o0o...

JAMES P. CALAFIORE, et al. v. WERNER ENTERPRISES, INC., et al.

Civil No. CCB-04-3402 Civil No. CCB-05-1435

MEMORANDUM

These cases stem from an automobile accident in 2001, in which a vehicle operated by James P. Calafiore was in a rear-end collision caused by a tractor trailer operated by Robert Genthner, on behalf of his employer Werner Enterprises, Inc. ("Werner"). In one case, Calafiore has brought a claim for negligence against Werner and Genthner seeking $1 million in compensatory damages, while in its companion case Calafiore's employer Brunswick/Life Fitness and its insurer Insurance Company of the State of Pennsylvania have brought a subrogation claim for negligence against Werner. The two cases have been consolidated for trial. Now pending before the court in this case is a motion for summary judgment by the

defendants, in which they argue that Calafiore should be barred by the doctrine of judicial estoppel from bringing his negligence claim, given that he failed to list the potential claim as an asset in his bankruptcy petition. The motion is opposed by Calafiore and the subrogation plaintiffs.1 Oral argument was heard by the court on March 1, 2006. For the following reasons, the motion will be

1

As confirmed by the parties at the oral hearing, however, resolution of the present motion would in no way affect the claims of the subrogation plaintiffs. 1

denied without prejudice. The court finds that the plaintiff should be barred by judicial estoppel from seeking certain forms of damages, but not others; therefore, he will be permitted to proceed, and the court will revisit the issue if and when necessary. In addition, the interests of Calafiore's creditors might be a factor considered by the court in ultimately resolving the issue.

I. Background On October 25, 2001, Calafiore was driving a motor vehicle northbound on Interstate 95 before the Ft. McHenry Tunnel in Baltimore, Maryland, when his vehicle was struck from behind by a tractor trailer, which was operated by Genthner, on behalf of Werner.2 As a result of the collision, Calafiore suffered serious physical injury. On or about August 21, 2003, Brunswick/Life Fitness and its insurance company, The Insurance Company of the State of Pennsylvania, filed a subrogation suit on behalf of Calafiore against Werner in Baltimore City Circuit Court. This suit was removed to federal court on May 26, 2005. On December 5, 2003, Calafiore and his wife filed a Chapter 7 Voluntary Petition for Bankruptcy in the Bankruptcy Court for the District of Maryland, with Dennis M. Jaworski as counsel. (Defs.' Mot., Ex. B., Bankr. Pet.) Calafiore indicated in his deposition that while preparing for the bankruptcy filing, he discussed his potential claim against the defendants with Jaworski and even considered the possibility of retaining Jaworski to represent him in the personal injury suit.

To the extent there is any dispute over the material facts relevant to this motion for summary judgment, they will be viewed in the light most favorable to the plaintiffs. Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639, 644-45 (4th Cir. 2002). 2

2

(Deposition of James P. Calafiore, at 38-39.) In their schedule of assets, the Calafiores listed a $10,000 workers' compensation claim, but did not list a potential claim against Genthner and Werner. (Bankr. Pet., Schedule B.)3 On March 22, 2004, Bankruptcy Judge Schneider granted the Calafiores a complete discharge from their debts. (Defs.' Mot., Ex. E.) On that same day, Calafiore apparently signed a complaint form for a civil suit against Genthner and Werner, and on April 1, 2004, that complaint was filed in Baltimore City Circuit Court by Jeffrey L. Komin as counsel for Calafiore. (Defs.' Mot., Ex. D.) The case was removed to this court on April 10, 2004.4

II. Analysis A. Judicial estoppel The Fourth Circuit has characterized the doctrine of judicial estoppel as "an equitable doctrine that exists to prevent litigants from playing `fast and loose' with the courts

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