No. 05-390 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2006 MT 131 

GREGORY VOGEL, 

Plaintiff and Appellant, 

v. 

INTERCONTINENTAL TRUCK BODY, INC., 

Defendant and Respondent. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and For the County of Pondera, Cause No. DV 02-64 

Honorable Marc G. Buyske, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Torger S. Oaas, Attorney at Law, Lewistown, Montana 

For Respondent: 

Jean E. Faure, Attorney at Law, Great Falls, Montana 

Submitted on Briefs: April 19, 2006 

 Decided: June 13, 2006 

Filed: 

__________________________________________ 

Clerk 
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Chief Justice Gray delivered the Opinion of the Court. 

 

¶1 Gregory Vogel (Vogel) filed this wrongful discharge action against his former 

employer, Intercontinental Truck Body, Inc. (Intercontinental). The Ninth Judicial District 

Court, Pondera County, granted Intercontinental’s motion for summary judgment and entered 

judgment. Vogel appeals, and we affirm. 

¶2 We restate the issue as whether the District Court erred in granting summary judgment 

to Intercontinental on grounds that Vogel is judicially estopped from claiming he suffered a 

compensable loss under the Montana Wrongful Discharge from Employment Act. 

BACKGROUND 

¶3 Vogel was employed as a truck body painter at Intercontinental’s Conrad, Montana, 

manufacturing business. In 1997 and 1998, he filed workers’ compensation claims for 

injuries to his knees and had surgery on both knees, for which Intercontinental accepted 

liability. Between 1998 and 2002, Vogel continued to have problems performing his job, and 

sought treatment for pain in his shoulders, elbows and wrists. 

¶4 On May 22, 2002, Intercontinental terminated Vogel’s employment. On June 5, 2002, 

Vogel filed a first report of injury and occupational disease with the Montana Department of 

Labor and Industry concerning the pain in his shoulders, elbows and wrists. 

¶5 On October 3, 2002, Vogel filed his complaint in this action, claiming Intercontinental 

wrongfully discharged him from employment and requesting all damages allowed under the 

Montana Wrongful Discharge From Employment Act (WDEA), §§ 39-2-901 through -915, 
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MCA. Intercontinental timely answered, denying the allegations. Nearly two years passed 

with no further action in the WDEA case. During that time, Vogel completed vocational 

rehabilitation training as an auto damage appraiser and claims appraiser as a result of 

Intercontinental’s acceptance of his knee injury claims. He also settled his occupational 

disease claim concerning the pain in his shoulders, elbows and wrists. 

¶6 In June of 2004, Vogel requested a scheduling conference in this action. 

Intercontinental moved to dismiss for failure to prosecute, but the District Court denied the 

motion. In April of 2005, Intercontinental moved for summary judgment based on judicial 

estoppel or, alternatively, Vogel’s inability to establish lost wages. In support of its motion, 

Intercontinental observed--and attached copies of supporting documents--that Vogel stated in 

his June 2002 occupational disease claim that he had suffered injuries to his upper 

extremities beginning in December of 1999 which rendered him unable to perform his 

previous work as a painter. Intercontinental further noted Vogel settled his occupational 

disease claim at the end of October of 2003, via a stipulation for payment to him of $16,750. 

 Intercontinental argued that, having represented in his occupational disease claim that he 

was unable to perform his time-of-injury job, Vogel was precluded from later arguing 

entitlement to wrongful discharge damages resulting from his loss of the same job. 

Alternatively, Intercontinental argued that a discharge, no matter how wrongful, does not 

damage an employee who is physically unable to continue in the job. Vogel submitted a 

brief in opposition to the motion and the court heard oral arguments. 

¶7 The District Court granted Intercontinental’s motion for summary judgment based on 
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judicial estoppel and entered judgment. Vogel appeals. 

STANDARD OF REVIEW 

¶8 Pursuant to Rule 56(c), M.R.Civ.P., summary judgment is proper when there are no 

genuine issues of material fact and the moving party is entitled to judgment as a matter of 

law. Employing the same evaluation as the district court based on Rule 56, M.R.Civ.P., we 

view the evidence in the light most favorable to the non-moving party. We review a 

summary judgment decision de novo. Peyatt v. Moore, 2004 MT 341, ¶ 13, 324 Mont. 249, 

¶13, 102 P.3d 535, ¶ 13 (citations omitted). 

DISCUSSION 

¶9 Did the District Court err in granting summary judgment to Intercontinental on 

grounds that Vogel is judicially estopped from claiming he suffered a compensable loss 

under the WDEA? 

¶10 Judicial estoppel precludes a party to an action or proceeding from taking a position 

inconsistent with the party’s previous judicial declarations. Fiedler v. Fiedler (1994), 266 

Mont. 133, 139, 879 P.2d 675, 679 (citation omitted). The doctrine includes four elements: 

(1) the estopped party had knowledge of the facts at the time he took the original position; (2) 

the estopped party succeeded in maintaining the original position; (3) the position presently 

taken is inconsistent with the original position; and (4) the original position misled the 

adverse party so that allowing the estopped party to change its position would injuriously 

affect the adverse party. In re Raymond W. George Trust, 1999 MT 223, ¶ 51, 296 Mont. 56, 

¶ 51, 986 P.2d 427, ¶ 51 (citation omitted). All four elements must be satisfied. 

¶11 The first element of judicial estoppel is satisfied here, because it is undisputed that 
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Vogel was aware he had been terminated from employment with Intercontinental when he 

filed his first report of injury to his shoulders, elbows and wrists on June 5, 2002; indeed, the 

termination had occurred about a week earlier. He also had knowledge of the facts of his 

termination from employment when, in a June 20, 2003, petition for hearing before the 

Workers’ Compensation Court on his occupational disease claim, he alleged that he “suffers 

from an occupational disease arising from his longtime employment as a truck body painter 

and detailer. The disease affects his shoulders, arms and wrists bilaterally and renders [him] 

unable to perform his time of injury job.” 

¶12 Regarding the second element of judicial estoppel, Vogel succeeded in maintaining 

his original position that his injury rendered him unable to perform his time-of-injury job. In 

October of 2003, he obtained a settlement of his occupational disease claim for his shoulders, 

elbows and wrists from Intercontinental in the amount of $16,750. 

¶13 The third element is that the position presently taken by the party against whom 

judicial estoppel is sought is inconsistent with the original position. Vogel’s argument in this 

action that he would have been capable of performing his job after the time of his discharge 

is entirely inconsistent with his position taken in his occupational disease claim that he was 

permanently unable to perform his previous work because of an occupational disease before 

he was discharged. This inconsistency establishes the third element of judicial estoppel. 

¶14 Finally, as to the fourth element of judicial estoppel, allowing Vogel to change his 

position to argue that he was wrongfully discharged from employment would injuriously 

affect Intercontinental. It would expose Intercontinental to liability for WDEA damages 
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premised on Vogel’s ability to perform his job when it had already settled Vogel’s 

occupational disease claim premised on his inability to do so. Thus, the final element is 

satisfied. 

¶15 Vogel does not specifically challenge any portion of the District Court’s determination 

regarding judicial estoppel. Instead, he makes an argument not related to judicial estoppel. 

The appellant bears the burden of establishing error in a district court’s decision. In re T.H., 

2005 MT 237, ¶ 45, 328 Mont. 428, ¶ 45, 121 P.3d 541, ¶ 45 (citation omitted). By failing to 

directly challenge the application of judicial estoppel by the District Court, Vogel has failed 

to meet his burden on appeal, and we decline to address his other argument. 

¶16 We hold the District Court correctly ruled that this action is barred under the doctrine 

of judicial estoppel and correctly granted Intercontinental’s motion for summary judgment on 

that basis. Affirmed. 

/S/ KARLA M. GRAY 

We concur: 

/S/ PATRICIA COTTER 

/S/ W. WILLIAM LEAPHART 

/S/ JIM RICE 

/S/ JAMES C. NELSON