When Precedent Isn’t Precedent

September 21, 2022

In the legal world, we often think in terms of precedent or stare decisis. This general rule requires that when the Supreme Court has decided on an issue, that ruling applies to all future cases on the same issue. “When there is controlling precedent on questions of Idaho law the rule of stare decisis dictates that we follow it, unless it is manifestly wrong, unless it has proven over time to be unjust or unwise, or unless overruling it is necessary to vindicate plain, obvious principles of law and remedy continued injustice.” Greenough v. Farm Bureau Mut. Ins. Co. of Idaho, 142 Idaho 589, 592, 130 P.3d 1127, 1130 (2006) (cleaned up). However, stare decisis does not mean that if a case says what you want it to say, the Supreme Court will follow it.


The Supreme Court has many tools in its bucket to avoid applying the law in the same way under similar circumstances. Two examples from insurance cases will make this clear. For example, in Am. Foreign Ins. Co. v. Reichert, 140 Idaho 394, 399, 94 P.3d 699, 704 (2004), the Idaho Supreme Court analyzed an offset provision that stated, “Any amount payable under this coverage shall be reduced by all sums paid or payable under any workers’ compensation, disability benefits or similar law[.]” Id. The Supreme Court then found this language to be unambiguous, stating, “In our review, we found nothing in the offset provision that is ambiguous, and we assume the Director approved this policy and it comports with public policy.” Id. However, five years later in Cherry v. Coregis Ins. Co., 146 Idaho 882, 886, 204 P.3d 522, 526 (2009), the Idaho Supreme Court found the exact same language to be ambiguous. The majority in Cherry found that the arguments made in Reichert and Cherry were slightly different, as were the facts, resulting in a different outcome. The dissent in Cherry noted that the language at issue in Reichert and Cherry was indistinguishable and contended that the same result should have been applied in Cherry. Id. at 889, 204 P.3d at 529. 

In another recent example, in Wood v. Farmers Ins. Co. of Idaho, 166 Idaho 43, 454 P.3d 1126 (2019), the Idaho Supreme Court found that both offset and excess UIM policies were valid in Idaho. However, less than three years later, the Idaho Supreme Court found an offset UIM policy to be invalid under Idaho public policy. Pena v. Viking Ins. Co. of Wisconsin, 169 Idaho 730, 739, 503 P.3d 201, 210 (2022). The Supreme Court attempted to differentiate Wood and Pena, holding that Wood had higher policy limits at issue than in Pena, where policy limits were the state-required minimums. Regardless, what looked like a clear statement of policy in Wood was completely modified in Pena


In a very recent case, Justice John Stegner, in discussing the application of a group of cases to a situation involving preliminary injunctions, pointed out the difficulty of knowing when prior cases constitute precedent in a current case. See Planned Parenthood Great Nw. v. State, No. 49615, 2022 WL 3335696, at *10–11 (Idaho Aug. 12, 2022) (Stegner, J., dissenting). This has both negative and positive consequences. While it makes it difficult to determine whether beneficial case law will result in a positive ruling, it also means that arguments can be made to try to dissuade courts from applying negative case law. Indeed, the Idaho Supreme Court is very willing to review statements made in prior cases to determine whether such statements constitute binding precedent or were merely commentary that applied to past cases only. See, e.g., State v. Blancas, No. 48357, 2022 WL 3268346, at *6 (Idaho Aug. 11, 2022).

Thus, parties should argue strongly to apply beneficial binding precedent, and should argue equally strongly that negative precedent is not applicable, or another look should be taken at it. 


The reality is that while precedent exists and is sometimes applied, no definite statement can ever be made that precedent will guarantee a particular ruling in your case. This is because different arguments or different facts may result in different outcomes, regardless of how similar two cases may seem. The Supreme Court recognizes this reality. While this can result in unfortunate outcomes in cases where the application of the law appears to dictate a specific result, it also means that where the law appears to be negative there is a chance for a positive outcome. 

Please contact a Gjording Fouser lawyer at 208.336.9777 if you would like any additional information about this topic or any other issues facing your company.