The doctrine of "judicial estoppel" provides that when a party assumes a position in a legal proceeding, it is estopped from taking a contrary position in a subsequent proceeding. Horwitz ex. rel. Gilbert v. Bankers Life and Casualty Co., 745 N.E.2d 591 (1st Dist. 2001).
In applying the doctrine of judicial estoppel, the court must find that the following five requirements are present: (1) the two positions must be taken by the same party; (2) the positions must be taken in judicial proceedings; (3) the positions must be given under oath; (4) the party taking the positions must have been successful in maintaining the first position and receive benefit; and (5) the two positions must be totally inconsistent. In applying this doctrine, the Court held that an insurer was not judicially estopped from asserting the "filed rate doctrine" as an affirmative defense. In reviewing the record, the Court found that virtually none of the requirements were met.