Emily West v. Sharp Bonding Agency Inc.

Decision Date02 November 2010
Docket NumberWD 72434.,Nos. WD 71651,s. WD 71651
Citation327 S.W.3d 7
PartiesEmily WEST and William Grant, Appellants,v.SHARP BONDING AGENCY, INC., Seneca Insurance Company, Inc., and Bail USA, Inc., Respondents.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Supreme Court Denied Dec. 21, 2010.

Steve Garner and Jeff Bauer, Springfield, MO, and Daniel W. Craig, Kansas City, MO, for Appellants.Michael P. Healy and Michael J. Fleming, Kansas City, MO, for Respondent Sharp Bonding Agency, Inc.Patrick K. McMonigle and Molly Bartalos, Kansas City, MO, and Richard Morgan, Miami, FL, for Respondents Seneca Insurance Co., Inc., and Bail USA, Inc.Before Division I: JAMES M. SMART, JR., Presiding Judge, and MARK D. PFEIFFER and CYNTHIA L. MARTIN, Judges.MARK D. PFEIFFER, Judge.

Appellants, Emily West and William Grant (West and Grant), appeal the Circuit Court of Jackson County's (trial court) judgment granting summary judgment in favor of Respondents, Seneca Insurance Company, Inc. (Seneca), Bail USA, Inc. (Bail USA),1 and Sharp Bonding Agency, Inc. (Sharp Bonding). The trial court granted summary judgment after finding no agency relationship existed between Seneca/Bail USA and Sharp Bonding regarding the facts of this case, thereby preventing vicarious liability from imputing to Seneca/Bail USA with respect to the conduct of Sharp Bonding. On appeal, West and Grant argue that the trial court erred in granting summary judgment because sufficient evidence was introduced to create a genuine issue of material fact as to whether an agency relationship existed between Seneca/Bail USA and Sharp Bonding on the facts of this case. We agree and therefore reverse the judgment of the trial court and remand for further proceedings consistent with this opinion.2

Factual and Procedural Background

The underlying claim at issue involves the tragic death of Tamar Grant. On June 13, 2002, Sharp Bonding employed Michael Iiams, Michael Raymond, and Raymond Brooks, (“the bounty hunters”) to apprehend Anthony West, Tamar's brother, for failure to appear for a municipal traffic ticket. The bounty hunters went to the home of Emily West, Anthony and Tamar's mother, to recover Anthony. During the confrontation, the bounty hunters suffocated and killed Tamar Grant.3

On July 13, 2007, Emily West and William Grant, Tamar's father, brought a wrongful death action against the bounty hunters, Carol Sharp in her individual capacity, Sharp Bonding, and Seneca/Bail USA.4 West and Grant claimed that Seneca/Bail USA was jointly and severally liable for the torts committed by the other defendants based on a principal-agent relationship between Seneca/Bail USA and Sharp Bonding. The referenced principal-agent relationship was created by a 1998 written contract titled “Bail Bond Agent Contract” (the “Bail Bond Agent Contract”) in which Seneca/Bail USA appointed Sharp Bonding as its agent for the purpose of soliciting and executing bail bonds in Kansas and Missouri.

On September 20, 2008, Sharp Bonding filed a motion for partial summary judgment on behalf of Seneca/Bail USA claiming that Sharp Bonding and its employees were not agents or partners of Seneca/Bail USA as it related to the facts of the case. Thereafter, Seneca/Bail USA filed a motion for summary judgment arguing that, under the facts of the case, no agency relationship existed between Sharp Bonding and Seneca/Bail USA, and therefore, Seneca/Bail USA could not be vicariously liable for any acts of Sharp Bonding's employees that led to the death of Tamar Grant.

On September 2, 2009, after a hearing on the motions, the trial court granted summary judgment in favor of Seneca/Bail USA and partial summary judgment in favor of Sharp Bonding, finding no agency relationship existed between the two defendants regarding the underlying claim. West and Grant timely appealed.5

Standard of Review

Our review of a grant of summary judgment is “essentially de novo. ITT Commercial Fin. Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). “The criteria on appeal for testing the propriety of summary judgment are no different from those which should be employed by the trial court to determine the propriety of sustaining the motion initially.” Id. “The propriety of summary judgment is purely an issue of law.” Id. “As the trial court's judgment is founded on the record submitted and the law, an appellate court need not defer to the trial court's order granting summary judgment.” Id.

When considering an appeal from the grant of summary judgment, we review the record in the light most favorable to the party against whom judgment was entered and “accord the non-movant the benefit of all reasonable inferences from the record.” Id. Accordingly, summary judgment will only be upheld on appeal if: (1) there is no genuine dispute of material fact, and (2) the movant is entitled to judgment as a matter of law. Id. at 380; see also Rule 74.04(c).6

In order to prove that a genuine issue exists, West and Grant must demonstrate that the record contains competent evidence of “two plausible, but contradictory, accounts of the essential facts.” ITT Commercial Fin. Corp., 854 S.W.2d at 382. Furthermore, [i]f movant requires an inference to establish his right to judgment as a matter of law, and the [summary judgment record] reasonably supports any inference other than (or in addition to) the movant's inference, a genuine dispute exists,’ and thus, the movant is not entitled to summary judgment.” Firestone v. VanHolt, 186 S.W.3d 319, 323 (Mo.App. W.D.2005) (quoting ITT Commercial Fin. Corp., 854 S.W.2d at 382).

Analysis

Whether an agency relationship exists is generally a factual question for the jury. Johnson v. Bi–State Dev. Agency, 793 S.W.2d 864, 867 (Mo. banc 1990) ( superseded on other grounds by statute, § 537.600, as recognized in State ex rel. Metropolitan St. Louis Sewer Dist. v. Sanders, 807 S.W.2d 87 (Mo. banc 1991)). However, “this relationship is a question of law for the court to determine when the material facts are not in dispute, and ‘only one reasonable conclusion can be drawn from the material facts.’ Ritter v. BJC Barnes Jewish Christian Health Sys., 987 S.W.2d 377, 384 (Mo.App. E.D.1999) (quoting Johnson, 793 S.W.2d at 867). Consequently, we must determine whether there is a genuine issue of material fact as to whether an agency relationship exists between Seneca/Bail USA and Sharp Bonding with regard to the underlying cause of action.

Agency

Common law agency is the fiduciary relationship resulting from “the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control.” State ex rel. Ford Motor Co. v. Bacon, 63 S.W.3d 641, 642 (Mo. banc 2002) (quoting from Restatement (Second) of Agency § 1 (1958)). However, [a]n agency relationship may ... exist even where the parties did not intend to create the legal relationship or [intend] to subject themselves to the liabilities that the law imposes as a result.” Bach v. Winfield–Foley Fire Prot. Dist., 257 S.W.3d 605, 608 (Mo. banc 2008) (citing Leidy v. Taliaferro, 260 S.W.2d 504, 505 (Mo.1953)). Generally, all that is required to create an agency relationship is that: (1) the agent holds the power to alter legal relations between the principal and third parties; (2) the agent is a fiduciary with respect to matters within the scope of agency; and (3) the principal has the right to control the conduct of the agent with respect to matters entrusted to the agent. Ford Motor Co., 63 S.W.3d at 642; State ex rel. Elson v. Koehr, 856 S.W.2d 57, 60 (Mo. banc 1993); River's Bend Red–E–Mix, Inc. v. Parade Park Homes, Inc., 919 S.W.2d 1, 4 (Mo.App. W.D.1996). Accordingly, the determinative issue for this court is whether a genuine issue of material fact exists as to whether Sharp Bonding's issuance of the property bail bond, which ultimately led to the death of Tamar Grant, was within the scope and course of its agency relationship with Seneca/Bail USA.

Were this issue submitted to a jury, the jury would be instructed on common law agency via the use of Missouri Approved Instructions (“MAI”) 13.06. Not so coincidentally, MAI 13.06 states that acts are within the “scope and course of agency” if:

1. they [are] performed by [Sharp Bonding] to serve the business interests of [Seneca/Bail USA] according to an express or implied agreement with [Seneca/Bail USA], and

2. [Seneca/Bail USA] either controlled or ha[s] the right to control the physical conduct of [Sharp Bonding].

MAI 13.06 [2002] (emphasis added).

While both elements of agency are in dispute, the primary controversy involves the right to control. West and Grant argue that the Bail Bond Agent Contract grants Seneca/Bail USA the right to control every aspect of Sharp Bonding's business, and this right sufficiently establishes an agency relationship. In contrast, Seneca/Bail USA and Sharp Bonding argue no agency relationship exists because Seneca/Bail USA exercises no actual control over Sharp Bonding with regard to property bonds. The trial court agreed with Seneca/Bail USA and Sharp Bonding, finding no agency relationship existed because Seneca/Bail USA did not exercise actual control over Sharp Bonding's property bond business.

To support their position, Seneca/Bail USA and Sharp Bonding primarily rely on two cases, which the trial court also relied upon: Ritter v. BJC Barnes Jewish Christian Health Systems, 987 S.W.2d 377 (Mo.App. E.D.1999), and Hefner v. Dausmann, 996 S.W.2d 660 (Mo.App. S.D.1999). Both Ritter and Hefner involved the issue of whether a parent medical corporate entity was liable for the allegedly negligent medical care provided to patients of its subsidiary medical corporate entity by its subsidiary medical corporate entity. Ritter, 987 S.W.2d at 384–87; Hefner, 996 S.W.2d at 664–67. Both of these cases reference control that is “actual, participatory and total” in the context of the...

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