United Farm Bureau Mut. Ins. Co. v. Groen, 3-785A196
| Decision Date | 17 December 1985 |
| Docket Number | No. 3-785A196,3-785A196 |
| Citation | 486 N.E.2d 571 |
| Parties | UNITED FARM BUREAU MUTUAL INSURANCE COMPANY, Appellant (Defendant Below), v. Thomas J. GROEN, Appellee (Plaintiff Below), and Frank J. Pekofski, Appellee (Defendant Below). |
| Court | Indiana Appellate Court |
Mark L. Phillips, Newby, Lewis, Kaminski & Jones, LaPorte, for appellant.
Ronald P. Nelson, Valparaiso, Frank J. Pekofski, Gary, for appellee.
United Farm Bureau Mutual Insurance Company (Farm Bureau) brings this interlocutory appeal from the denial of Farm Bureau's motion for summary judgment in an action for negligence and abuse of process filed by Thomas J. Groen. The single issue 1 with which we are faced on review is whether the trial court erred in holding that Farm Bureau is liable to Groen for the torts of Farm Bureau's attorney which resulted in an improper default judgment being rendered against Groen.
We affirm.
Farm Bureau retained attorney Frank J. Pekofski to pursue subrogation claims which Farm Bureau referred to Pekofski from time to time. Those cases were handled by Pekofski on a contingent fee basis. Pursuant to this arrangement Pekofski filed suit in the name of Farm Bureau's insured, James Elkins, against Thomas Groen to collect on a claim arising from an automobile accident. A default judgment was rendered in that suit though Groen was apparently never served. Pekofski forwarded a copy of the default judgment to the Bureau of Motor Vehicles and Groen's driver's license was suspended. Later, Groen was arrested for driving while suspended.
Groen challenged the default judgment and it was set aside and declared void due to lack of jurisdiction over Groen. The criminal charges were subsequently dismissed as well.
Groen filed suit against Elkins and Pekofski and by amended complaint added Farm Bureau in a claim for damages for gross negligence and abuse of process. Farm Bureau moved for summary judgment on the ground that it could not be vicariously liable for the actions of Pekofski who was an independent contractor. The trial court denied Farm Bureau's motion, holding that there was a substantial issue of material fact, and explaining in an accompanying memorandum that Pekofski was an agent of Farm Bureau and any acts or omissions of Pekofski were those of Farm Bureau.
When this Court reviews the denial of a motion for summary judgment we must determine if there exists any genuine issue of material fact and any doubt about the existence of a genuine issue of material fact must be resolved against the moving party. Ogilvie v. Steele (1983), Ind.App., 452 N.E.2d 167, 169. We will affirm if the prevailing party is entitled to judgment as a matter of law. Integrity Insurance Co. v. Lindsey (1983), Ind.App., 444 N.E.2d 345, 347. In the proceedings at bar the only question is whether the trial court properly applied the law in determining that a client could be liable to a third party for the tortious acts of the client's attorney.
The parties rely upon two distinct lines of authority in support of their positions. Farm Bureau cites personal injury cases in which a contractee sought to avoid liability for injuries caused by the negligence of an independent contractor. Representative of this line of authority is Burkett v. Crulo Trucking Co., Inc. (1976), 171 Ind.App. 166, 355 N.E.2d 253, a wrongful death action in which a trucking company was found not liable for a death caused by a truck driver who worked as an independent contractor for the company.
Our First District wrote:
Groen, on the other hand, depends upon a line of cases which hold that an attorney is the agent of his client with regard to specific litigation and the client will be bound by the acts or omissions of the attorney. See Mid-States Aircraft Engines, Inc. v. Mize Co., Inc. (1984), Ind.App., 467 N.E.2d 1242 (); City of Evansville v. Nelson (1964), 245 Ind. 430, 199 N.E.2d 703 ().
Neither line of authority precisely addresses the unique situation in which the client is sought to be held liable to a third person for the actions of his attorney. The parties agree that an attorney is generally considered the agent of his client. Mid-States Aircraft Engines, Inc., supra; Solar Sources, Inc. v. Air Pollution Control Bd. (1980), Ind.App. 409 N.E.2d 1136. There the agreement ends, however, with Farm Bureau insisting that the absence of a master-servant relationship precludes Farm Bureau's liability and Groen claiming that Indiana has rejected the independent contractor distinction in the attorney-client setting.
An attorney representing a client is not a party to the litigation, he acts on behalf of and in the name of the client. The attorney is the agent of the party employing him, and in court stands in his stead. Ferrara v. Genduso (1938), 214 Ind. 99, 14 N.E.2d 580, 581 (citing Sharp v. Moffitt (1884), 94 Ind. 240, 242). The attorney has by virtue of the retainer or employment alone, the general implied authority to do on behalf of the client all acts in or out of court necessary or incidental to the prosecution or management of the suit or defense or the accomplishment of the purpose for which he was retained. 7A CJS Attorney & Client Sec. 191. Indiana courts have held that in the absence of fraud by the attorney the client is bound by the action of his attorney even though the attorney is guilty of gross negligence. State v. Dubois Circuit Court (1968), 250 Ind. 38, 233 N.E.2d 177, 178. The negligence of an attorney is the negligence of his client. International Vacuum, Inc. v. Owens (1982), Ind.App., 439 N.E.2d 188, 190.
A case not cited by Groen addresses an issue similar to the issue involved in this case. In Brutus v. Wright (1975), 163...
To continue reading
Request your trial
-
McGrath v. Everest Nat. Ins. Co.
...acts requiring a license. (emphasis added) 717 N.E.2d at 159-60 Similarly, and even more on point, United Farm Bureau Mutual Insurance Company v. Groen, 486 N.E.2d 571 (Ind.App. 1985) unmistakenly recognized the agency relationship between an insurer and the attorney that it hired. Groen Th......
-
Rose ex rel. Rose v. ST. PAUL FIRE
...247, 860 P.2d 1300 (1992); Delmonte v. State Farm Fire and Cas. Co., 90 Hawai'i 39, 975 P.2d 1159 (1999); United Farm Bureau Mut. Ins. Co. v. Groen, 486 N.E.2d 571 (Ind.Ct.App.1985); Anderson v. Southern Surety Co., 107 Kan. 375, 191 P. 583 (1920); Safeco Ins Co v. Ellinghouse, 223 Mont. 23......
-
Horwitz v. Holabird & Root
...conduct of attorney)); Peterson v. Worthen Bank & Trust Co., N.A., 296 Ark. 201, 753 S.W.2d 278 (1988); United Farm Bureau Mutual Insurance Co. v. Groen, 486 N.E.2d 571 (Ind. App.1985); Continental Insurance Co. v. Bayless & Roberts, Inc., 608 P.2d 281 (Alaska 1980); Nyer v. Carter, 367 A.2......
-
Koval v. Simon Telelect, Inc., 94S00-9710-CQ-552
...or management of the suit or the accomplishment of the purpose for which the attorney was retained. United Farm Bureau Mut. Ins. Co. v. Groen, 486 N.E.2d 571, 573 (Ind.Ct.App.1985). See also Miedreich v. Rank, 40 Ind.App. 393, 397, 82 N.E. 117, 118 (1907) (attorney is more than a mere agent......
-
Client Responsibility for Lawyer Conduct: Examining the Agency Nature of the Lawyer-client Relationship
...conduct, were acting on the client's behalf so the client was liable. Id. at 759-60. In United Farm Bureau Mut. Ins. Co. v. Groen, 486 N.E.2d 571 (Ind. Ct. App. 1985), the Indiana Court of Appeals stated that by virtue of the retainer, the attorney has implied authority to do all things nec......
-
Troubling Issues in Insurance Bad Faith
...(Valencia), 49 Cal.3rd 39 (1989). 17. Restatement (Second) of Torts§ 422 (1965). 18. E.g., United Farm Bureau Mutual Ins. Co. v. Groen, 486 N.E.2d 571 (Ind.App. 1985). See, generally, Mallon and Smith, Legal Malpractice,§ 23.6. 19. Boyd Bros. Transportation Co., Inc. v. Firemen's Fund Ins. ......