I respectfully dissent. The lead opinion reasons from an assumption that the dispositive issue in this case is whether the decedent’s status as an employee was "adjudicated” in the earlier redemption proceeding. Finding no adjudication, the opinion concludes that estoppel could not apply. I do not agree.
i
As this Court said in Hassberger v General *435Builders’ Supply Co, 213 Mich 489, 492; 182 NW 27 (1921), the doctrine of estoppel " 'has its origin in moral duty and public policy; and its chief purpose is the promotion of common honesty, and the prevention of fraud.’ ” For purposes of this appeal, it is important to underscore a distinction between estoppel by record (res judicata and collateral estoppel) and equitable estoppel. Estoppel by record "is the preclusion to deny the truth of matters set forth in a record, whether judicial or legislative, and also to deny the facts adjudicated by a court of competent jurisdiction.” 28 Am Jur 2d, Estoppel and Waiver, §2, p 600. Equitable estoppel, on the other hand, broadly applies to situations where, "because of something which he has done or omitted to do, a party is denied the right to plead or prove an otherwise important fact.” 28 Am Jur 2d, supra, § 27, p 627.
Although estoppel by record is not applicable , unless there has been an adjudication of the point at issue, the absence of an adjudication does not necessarily preclude the availability of equitable estoppel. Hassberger, supra.1
The doctrine of equitable estoppel has often been invoked to prevent a party from taking an incon*436sistent position in legal proceedings.2 As this Court has said,
"Where a fact has been asserted, or an admission made, through which an advantage has been derived from another, or upon the faith of which another has been induced to act to his prejudice, so that a denial of such assertion or admission would be a breach of good faith, the law precludes the party from repudiating such representation, or afterwards denying the truth of such admission.” [Hassberger, supra at 492-493.]
"To allow a party who succeeds in defeating one action on a seeming state of facts, though false, to shift his ground and defeat a second action by disproving the truth of his first defense would be to sanction the grossest abuse and fraud.” [Id. at 493.]
As a matter of policy, a party should not be permitted to claim that he is an employee in order to induce an employer to settle its workers’ compensation liability, and then claim that he is not an employee in a subsequent tort action against the same employer on the basis of the same injury. To condone such a course of conduct would seriously undermine the exclusive remedy provision, MCL 418.131; MSA 17.237(131), which is the cornerstone of the workers’ compensation act.
When nearly identical facts were presented in Jordan v C A Roberts Co, 379 Mich 235; 150 NW2d 792 (1967), this Court concluded that the widow, after representing that her deceased husband was an employee for the purposes of obtaining ap*437proval of a redemption agreement, could not thereafter bring a wrongful death action against the employer on the basis of the same accident. Speaking through Justice Adams, the Jordan Court predicated its decision on "the nature of the remedy” provided under the act and pointed to the exclusive remedy provision.3 The Jordan Court found additional support in another section of the act which then read,
"If the employee, or his dependents, in case of his death, of any employer subject to the provisions of this act files any claim with, or accepts any payment from such employer, or any insurance company carrying such risks, or from the commissioner of insurance on account of personal injury, or makes any agreement, or submits any question to arbitration under this act, such action shall constitute a release to such employer of all claims or demands at law, if any, arising from such injury. [1948 CL 416.1; MSA 17.212.]” [Id. at 245.]
The lead opinion focuses upon the fact that § 416.1 was repealed in 1969 and replaced by MCL 418.831; MSA 17.237(831), which reads:
Neither the payment of compensation or the accepting of the same by the employee or his dependents shall be considered as a determination of the rights of the parties under this act.
However, these developments have not destroyed the sound reasoning of the Jordan decision, as the lead opinion implies. In the first place, § 416.1 *438made no reference whatever to the consequences of submitting a redemption agreement to the referee and obtaining approval after a hearing.
Secondly, §831, which is referred to as being "comparable” to the repealed provision (ante, p 427), reflects no legislative intent to support the conclusion of the lead opinion. Indeed, the Jordan Court reached its contrary result after carefully acknowledging the very point made in § 831. Before the 1969 revision, the law had provided that the voluntary payment or acceptance of workers’ compensation benefits did not, in and of itself, determine an employee’s status or bar a subsequent action. Jordan, supra, p 245.
In Bugg v Fairview Farms, Inc, 385 Mich 338; 189 NW2d 291 (1971), the parties made clear in the transcript of the redemption hearing that they had not resolved their dispute concerning one issue, i.e., whether the injury arose in the course of employment. Pointing to the fact that the parties had expressly agreed to reserve this issue for determination in a subsequent third-party civil action, the Bugg Court concluded that the employer, in that instance, was estopped from later raising the redemption order as a release. Id., p 353.
In the case at bar, there is nothing in the record of the redemption hearing to suggest that the parties reserved any of the issues involved in the settlement for determination in a subsequent lawsuit. It is true that, prior to the settlement and approval, the parties disagreed with regard to whether the decedent was an employee or an independent contractor. However, on the basis of the redemption proceeding record before us, there is every reason to believe that the parties settled and resolved their differences as to the matters expressly set forth in the redemption agreement.
*439Like other agreements, a redemption agreement might later be set aside on grounds such as mutual mistake, Solo v Chrysler Corp (On Rehearing), 408 Mich 345; 292 NW2d 438 (1980). However, the burden should be on the party who seeks to avoid the agreement.
The exclusive remedy provision of the act provides:
(1) The right to the recovery of benefits as provided in this act shall be the employee’s exclusive remedy against the employer for a personal injury or occupational disease. The only exception to this exclusive remedy is an intentional tort. . . .
(2) As used in this section and section 827, "employee” includes the person injured, his or her personal representatives and any other person to whom a claim accrues by reason of the injury to, or death of, the employee .... [MCL 418.131; MSA 17.237(131).]
In view of the exclusive remedy provision, I believe that, once a redemption agreement has been negotiated, signed, and approved, as in the case at bar, the employer should be able to expect that he will not thereafter be subject to liability in tort to the employee or his privies for the same injury. Absent unusual circumstances, as in Bugg, I believe that such an expectation is reasonable and in keeping with the policy and purposes of the act. Moreover, I believe it is the expectation and the intention of the Legislature.
n
Particularly in light of the "nature of the remedy” which the act provides, I would hold in this case that the plaintiff is equitably estopped from maintaining in a subsequent wrongful death ac*440tion that her husband was not an employee. To hold otherwise, as the lead opinion does today, seriously erodes and undermines the exclusive remedy provision which is the foundation of the act.
The lead opinion also challenges the factual basis for the application of equitable estoppel (ante, pp 430-431). If a majority of this Court has similar doubts concerning the factual basis, then the appropriate course, I suggest, should be to remand this case to the trial court for a hearing, if deemed necessary, for further findings and a redetermination regarding this issue.
Riley, J., concurred with Griffin, J. Mallett, J., took no part in the decision of this case.In Hassberger, the plaintiff first brought an equitable action seeking specific performance of an option contract he had with the defendant. The defendant alleged in its answer and sought to prove at trial that the option was void and unenforceable. Because of the defendant’s representations, the plaintiff dismissed the action, and brought another action for assumpsit on the basis that there was no contract. The defendant then argued that the option was valid and enforceable. After finding that res judicata was inapplicable because the prior suit had been dismissed, this Court said that "the distinction” between collateral estoppel and estoppel by conduct "is clear. One may be estopped by his conduct,” despite the lack of a prior adjudication. Id at 492.
See Hassberger, supra; Burgess v Holder, 362 Mich 53; 106 NW2d 379 (1960); Mertz v Mertz, 311 Mich 46; 18 NW2d 271 (1945); Billingsley v Gulick, 256 Mich 606; 240 NW 46 (1932); Great Western Smelting & Refining Co v Evening News Ass’n, 139 Mich 55; 102 NW 286 (1905).
The provision then read:
"Where the conditions of liability under this act exist, the right to the recovery of compensation benefits, as herein provided, shall be the exclusive remedy against the employer. [1948 CL 411.4; MSA 17.144.]” [id, pp 244-245.]