Chapter 36 – Third-Party Relations of the Principal and the Agent
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Chapter 36 – Third-Party Relations of the Principal and the Agent
- 1. C H A P T E R Third-Party Relations of the 36 Principal and the Agent We intend to conduct our business in a way that not only meets but exceeds the expectations of our customers, business partners, shareholders, and creditors, as well as the communities in which we operate and society at large. Akira Mori , President and CEO Mori Trust Co., Ltd. (Japan) 36-1
- 2. Learning Objectives • Know when an agent has authority to bind a principal to a contract • Understand when an agent may be liable on contracts s/he makes for the principal • Recognize when an agent’s conduct makes a principal liable for torts committed by the agent 36-2
- 3. Overview • A principal bears tort and contract liability for their own acts or omissions • A principal controls an agent, thus principal is liable for agent’s acts or If your computer fails, omissions would you sue the company or the inspector who missed the problem? 36-3
- 4. Contract Liability • Generally, a principal is liable on a contract made by the agent if the agent had express, implied, or apparent authority to make the contract • Even if the agent lacks authority to contract, a principal may become bound to contract obligations by ratifying a contract made by an unauthorized agent 36-4
- 5. Actual v. Apparent Authority • An agent’s actual authority may be express (by words) or implied (by conduct) • Apparent authority arises if communications by principal to third party creates reasonable appearance of authority in the agent • See Opp v. Wheaton Van Lines, Inc.: – Plaintiff sued Wheaton for damages and the company alleged her ex-husband had actual or apparent authority to limit coverage 36-5
- 6. Ratification • In ratification, a principal becomes obligated for an unauthorized act done by an agent or person posing as an agent – Act in question usually is contract creation • Ratification relates back to contract creation and binds principal as if agent had authority • May be express or implied • Basic contract law applies 36-6
- 7. The Work Connection, Inc. v. Universal F • Facts: – Universal hired a temporary employee from Connection, a temporary employment agency – Universal routinely completed Connection’s work verification forms containing language by which employer (Universal) agrees to indemnify Connection for employee injuries – Injured employee was covered by Connection’s workers’ compensation insurance, but Universal refused to indemnify (pay) Connection 36-7
- 8. The Work Connection, Inc. v. Universal Forest Products, Inc. • Legal Reasoning and Holding: – Trial court granted Universal’s motion for summary judgment and Connection appealed – Issue: whether Universal ratified the indemnity clause by accepting the benefits of employment contract for employee’s labor – Ratification does not occur if the principal – as in this case – is ignorant of material facts, such as time cards with a commitment to indemnify – Judgment for Universal affirmed 36-8
- 9. Contract Liability of Agent • An agent’s liability for a contract depends on the nature of the principle: – Agent who represents a disclosed principal is not liable on contracts made for the principal – Agents are liable on contracts made for a partially disclosed principal unless parties agree otherwise – An agent is liable to third parties on contracts made for an undisclosed principal 36-9
- 10. Treadwell v. J.D. Construction Co. • Facts and Opinion: • Construction company owner (Derr) organized his company as JCDER, Inc., but entered into contracts under several other company names • Customer sued Derr, individually, and his company for failing to complete their home building project in a workmanlike manner • Derr held personally liable for performance of contracts entered into as agent for the non- existent J.D. Construction, Co., Inc., or the undisclosed principal JCDER, Inc. 36-10
- 11. Implied Warranty of Authority • If agent contracts for a competent and existing principal but lacks authority, the principal is not bound • The result is unfair to a third party, so the agent is bound on the theory of an implied warranty of authority to contract • See In re Interbank Funding Corp. v. Chadmoore Wireless Group Inc. 36-11
- 12. Principal’s Tort Liability • A principal may be liable for a tort in four circumstances: – Direct liability for torts – Respondeat superior – Independent contractor activities – Misrepresentation 36-12
- 13. Direct Liability • A principal may incur direct liability for an agent’s torts because the principal is at fault and liability need not be imputed – Example: sales agent merely applied the dealership’s deceptive sales policies 36-13
- 14. Respondeat Superior • Under the doctrine of respondeat superior (let the master answer), a principal who is an employer is liable for torts committed by agents (1) who are employees and (2) who commit the tort while acting within the scope of their employment – Principal liable for employee’s negligent and intentional torts 36-14
- 15. Respondeat Superior • Respondeat superior is a rule of imputed or vicarious liability because it bases an employer’s liability on the relationship with the employee Millan v. Dean Witter Reynolds, Inc. discusses direct liability and respondeat superior in a brokerage house 36-15
- 16. Scope of Employment • Generally an employee’s conduct is within the scope of employment if the conduct meets each of four tests: – Conduct was of the kind that the employee was employed to perform – Conduct occurred substantially within the authorized time period – Conduct occurred substantially within the location authorized by the employer – Conduct was motivated at least in part by the purpose of serving the employer 36-16
- 17. Liability for Torts of Independent Contractors • Since a principal does not control the work of an independent contractor, a principal is not liable for an independent contractor’s torts except: – A principal may be directly liable for negligent retention of an independent contractor (e.g., hiring a dangerously incompetent independent contractor) 36-17
- 18. Liability for Torts of Independent Contractors • A principal is liable for harm resulting from an independent contractor’s failure to perform a nondelegable duty • Professionals and those with special artistic or technical skills tend to have nondelegable duties 36-18
- 19. Liability for Torts of Independent Contractors • A principal is liable for an independent contractor’s negligent failure to take special precautions to conduct highly dangerous or inherently dangerous activities 36-19
- 20. Liability for Misrepresentations • A principal may be liable for agent’s false statements directly (intentionally or negligently) or vicariously (agent authorized to make true statements on the subject) • Example: misrepresentation about the safety of medical devices by sales personnel 36-20
- 21. Tort Liability of Agent • Agents liable for their torts except when: – Agent exercises a privilege of the principal (e.g., uses an easement) – Agent takes privileged action to defend his person or principal’s property – Agent makes a false statement in conduct of principal’s business but doesn’t know the falsity of the statements – Third parties are injured by defective tools or instrumentalities furnished by the principal 36-21
- 22. Test Your Knowledge • True=A, False = B – An agent is always liable for his own torts. – The doctrine of respondeat superior means that a principal is liable for torts committed by employees acting within the course and scope of employment. – If an agent contracts for a legally existing and competent principal but lacks authority to enter contracts, the principal is not bound. 36-22
- 23. Test Your Knowledge • True=A, False = B – A principal is never liable for an independent contractor’s torts. – Apparent authority arises if communications by principal to third party creates reasonable appearance of authority in the agent. – If a principal fails to inform the agent about a defect in the product, the principal will be directly liable for an agent’s torts. 36-23
- 24. Test Your Knowledge • Multiple Choice – Carl owned a a pizza business and employed Zip to deliver pizzas. Carl knew that Zip occasionally drank beer while driving, but didn’t fire Zip. Zip injured Dan while delivering pizzas and driving drunk. Is Carl liable to Dan for Zip’s conduct? a) No, only Zip is liable. Drunk driving was not within the scope of employment b) Yes, since Carl knew about Zip’s drinking and negligently retained Zip 36-24
- 25. Test Your Knowledge • Multiple Choice – Carl’s Pizza hired Miller to be general manager. Miller hired Sam for pizza prep work. In general, would Carl’s Pizza be obligated to honor the contract with Sam? a) No; only the owner of Carl’s Pizza can hire Sam, thus Sam’s contract is void b) Yes; Miller acted with implied authority since he is general manager and Carl’s Pizza must honor Sam’s employment contract 36-25
- 26. Thought Questions • Do you think the doctrine of respondeat superior is good policy? Why or why not? 36-26
Notas del editor
- Artwork is titled Saruwaka-machi yoru no kei , an 1856 woodcut by Hiroshige Andō, showing a commercial street at night.
- Hyperlink is to the opinion on the Findlaw.com website. Court: “An agent’s authority may be either actual or apparent, and actual authority may be express or implied. Only the words or conduct of the alleged principal, not the alleged agent, establish the actual or apparent authority of an agent. We first note that Mr. Opp never received the express authority to represent Ms. Opp and to limit the carriers’ liability…. We next determine whether Mr. Opp had the implied authority to limit the carriers’ liability. An agent has implied authority for the performance or transaction of anything reasonably necessary to effective execution of his express authority. Restatement (Second) of Agency § 35. Thus we must determine whether it was reasonably necessary for Mr. Opp to sign the bill of lading in order to execute his express authority to open the door to give the movers access to Ms. Opp’s property…. We conclude that there is insufficient evidence to support a grant of summary judgment for the carriers on this issue. We must then consider whether Mr. Opp had the apparent authority to sign the bill of lading and limit the carriers’ liability. Under the doctrine of apparent authority, a principal will be bound not only by the authority that it actually gives to another, but also by the authority that it appears to give. Apparent authority arises when a principal creates, by its words or conduct, the reasonable impression in a third party that the agent has the authority to perform a certain act on its behalf…. material facts in the record also justify a reasonable inference that Mr. Opp did not have the apparent authority to limit the carriers’ liability. It is undisputed that Ms. Opp told Soraghan that she wanted the full replacement value…We conclude, therefore, that summary judgment is precluded because the record provides sufficient evidence to enable a reasonable jury to find that Mr. Opp lacked the apparent authority to limit the carriers’ liability. Judgment reversed in favor of Ms. Opp. Remanded to the district court.”
- Hyperlink is to the court’s opinion on the Justia.com website. The Work Connection, Inc. (Connection) is a temporary employment agency that provides workers to customers for a fee. Olson, a sales representative for Connection, contacted Universal Forest Products, Inc. (Universal). Olson spoke with Ken Von Bank, Universal’s production manager who had direct supervisory authority over temporary workers. Universal hired some of Connection’s employees, including Wayne DeLage, to construct fence panels at its Shakopee plant. Olson gave Universal work verification forms that were used as employee timecards. Universal filled out and signed the forms, which contained the worker’s name, date, and hours worked. Submission of a completed, signed form was required for an employee to be paid, and Connection processed the forms through its payroll department. The work verification forms contained the following language: CUSTOMER AGREES TO THE TERMS AND CONDITIONS…3. CUSTOMER agrees to indemnify, hold harmless and defend THE WORK CONNECTION against claims, damages, or penalties under the following circumstances:…(b) From any claims for bodily injury (including death), or loss of, and loss of use of, or damage to, property arising out of the use of or operation of CUSTOMER’S owned, nonowned, or leased vehicles, machinery or equipment by THE WORK CONNECTION employees. The parties never discussed the language on the back of the work verification form. The parties’ oral agreement did not include a term that required Universal to provide workers’ compensation insurance for Connection’s employees. Nonetheless, Von Bank signed the verification forms for Universal from March 1995 through July 1995, when the office manager, Yvonne Kohout, took over signing duties. At some point, Universal ran out of original work verification forms. Kohout simply photocopied the front side of the form and, thereafter, submitted forms that were blank on the back. In August 1995, DeLage severed three of his fingers while operating a radial arm saw. DeLage received $75,000 in workers’ compensation benefits from Connection. Connection then asked Universal to indemnify it pursuant to the language on the back of the verification form. Universal refused to pay.
- Connection sued Universal for breach of contract and the trial court granted Universal’s motion for a directed verdict. Connection appealed. The Minnesota Court of Appeals held that Von Bank and Kohout had no actual or apparent authority to bind Universal to the indemnification clause. The court then considered whether Universal had ratified the indemnification clause by accepting the benefits of the employment contract for DeLage’s labors. Appellate court: “Ratification does not occur if the principal is ignorant of material facts surrounding the transaction. Ratification by a party of another’s unauthorized acts occurs where the party with full knowledge of all material facts confirms, approves, or sanctions the other’s acts. Where a principal accepts and retains the benefits of an unauthorized act of an agent with full knowledge of all the facts he thereby ratifies the act. Here Universal lacked knowledge of a material fact: that the original timecards that Kohout signed contained language committing Universal to indemnify appellant for a workers’ compensation claim. Given that Universal lacked full information regarding Kohout’s actions, it did not ratify her conduct. Judgment for Universal affirmed.”
- The hyperlink is to the court’s opinion in pdf.
- In re Interbank Funding Corp. v. Chadmoore Wireless Group Inc.: court found the president of a dissolved corporation liable for breaching the agent’s implied warranty of authority.
- The photo is of a carpenter, who is an employee (perhaps self-employed or for a subcontractor) and/or an independent contractor.
- The photo is of stockbrokers working on a problem. The hyperlink is to the court’s opinion on the Findlaw.com website. Court: Miguel in the course and scope of his employment for Dean Witter opened a brokerage account for his mother. It was within Miguel’s general authority to open such accounts for clients, receive deposits to these accounts, and purchase and sell securities as directed by clients. Miguel’s activities, however, went far beyond these general brokerage duties. Miguel greatly exceeded the scope of his authority when, through a litany of deceitful acts, he stole money from his mother. There is no evidence that Miguel acted within the scope of his authority as a broker at Dean Witter. Accordingly, there is no evidence to support the submission of the issue of Dean Witter’s vicarious liability for fraud to the jury.
- Would you mind if the independent contractor hired to manage the nuclear facility forgot to take precautions in running the plant?
- In the breast implant lawsuits and class action settlements, evidence was offered at trial that Dow Corning instructed sales personnel to wash the implants with soap and water, and towel dry, before showing them to doctors. (Hopkins v. Dow Corning Corp., 33 F.3d 1116, 1119 (9th Cir. 1994)). The reason for the cleansing was not for sanitary reasons, but because the implants (silicone gel encased in a semi-permeable silicone shell) leaked and would become sticky if not washed frequently. Doctors would not order “bleeding” implants and sales would go down. As a result, many doctors were not aware that the implants leaked silicone gel because of the implant design.
- False. There are exceptions to the general rule. True. True. Thus, agent is bound on the theory of an implied warranty of authority to contract.
- False. A principal may be liable for an independent contractors torts in certain circumstances. True. True. A principal may incur direct liability for an agent’s torts because the principal is at fault and liability need not be imputed.
- The correct answer is (b). This question may require further discussion about negligent retention.
- The correct answer is (b).
- Opportunity to discuss policy and the law. Photo is of an assembly line.