Michael Moore v. Universal Underwriters Insurance Company

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2302
MICHAEL MOORE,
Plaintiff – Appellant,
v.
UNIVERSAL UNDERWRITERS INSURANCE COMPANY,
Defendant – Appellee,
and
ZURICH AMERICAN INSURANCE COMPANY,
Defendant.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. Terrence W. Boyle,
District Judge. (4:07-cv-00106-BO)
Submitted: December 28, 2009 Decided: January 28, 2010
Before MOTZ, KING, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Calvin R. King, New Bern, North Carolina, for Appellant. Paul
A. Daniels, TEAGUE ROTENSTREICH STANALAND FOX & HOLT, PLLC,
Greensboro, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Michael Moore appeals the district court’s order
granting the Defendant’s motion for summary judgment. On
appeal, Moore contends that the district court erred by not
invoking the doctrine of judicial estoppel to prevent the
Defendant from denying underinsurance coverage. We affirm.
Judicial estoppel is a principle developed to prevent
a party from taking a position in a judicial proceeding that is
inconsistent with a stance previously taken in court. Zinkand
v. Brown, 478 F.3d 634, 638 (4th Cir. 2007). Federal law
controls the application of judicial estoppel, since it relates
to protection of the integrity of the federal judicial process.
Allen v. Zurich Ins. Co., 667 F.2d 1162, 1168 n.4 (4th Cir.
1982). We review a district court’s decision whether to apply
judicial estoppel for abuse of discretion. King v. Herbert J.
Thomas Mem’l Hosp., 159 F.3d 192, 198 (4th Cir. 1998).
Three elements must be satisfied before judicial
estoppel will be applied. Zinkand, 478 F.3d at 638. First, the
party sought to be estopped must be seeking to adopt a position
that is inconsistent with a stance taken in prior litigation.
Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996). Second,
the prior inconsistent position must have been accepted by the
court. Id. Lastly, the party against whom judicial estoppel is
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to be applied must have intentionally misled the court to gain
unfair advantage. Zinkand, 478 F.3d at 638.
With these standards in mind, we have reviewed the
parties’ briefs and the record and find no reversible error.
Accordingly, we affirm for the reasons stated by the district
court. See Moore v. Universal Underwriters Ins. Co., No. 4:07-
cv-00106-BO (E.D.N.C. Oct. 20, 2008). We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED

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