Judicial Estoppel Prevents Party From Playing "Fast and Loose" By Taking Inconsistent Litigation Positions

Case: United Nat'l Ins. Co. v. Spectrum Worldwide, Inc., 9th Cir. No. 07-55833 (2/2/09)

The One Sentence Summary: In a suit by the insurer for recovery of advertising injury insurance proceeds paid to settle a trade dress infringement suit, the district court properly granted summary judgment for the insurer where there was no coverage due to a first publication exclusion and the insured was judicially estopped from arguing that first publication occurred after the policy went into effect.



Ninth Circuit Holdings:

• The first publication exclusion of the insurance policy was unambiguous and applied to infringement claims.
• Spectrum was judicially estopped from claiming that its first publication of the allegedly infringing material occurred after the insurance policy became effective. The estoppel arose because Spectrum argued successfully in earlier litigation that it had been using the elements of its label since before the policy became effective.