Thursday, January 15, 2009

Apparent agency, whose “holding out of agency” counts anyway, and apples vs. oranges

Florida law uses a three element test to determine if an apparent agency exists. “An apparent agency exists ‘only if each of the three elements are present: (a) representation by the purported principal; (b) a reliance on that representation by a third party; and (c) a change in position by the third party in reliance on the representation.’” Robbins v. Hess, 659 So. 2d 424, 427 (Fla. 1st DCA 1995), quoting Mobile Oil Corp. v. Bransford, 648 So. 2d 119, 121 (Fla. 1995).
As to the first element, apparent agency does not arise from the subjective understanding or wishful thinking of the person dealing with the supposed agent, or from the appearance created by the supposed agent. The apparent agency can only arise where the purported principal creates the appearance of an agency relationship. Spence Payne Masington v. Philip M. Gerson, 483 So. 2d 775 (Fla. 3d DCA 1986).
In Izquierdo v. Hialeah Hosp., Inc., 709 So. 2d 187 (Fla. 3d DCA 1998), plaintiff filed a wrongful death/medical malpractice action against Hialeah Hospital under a vicarious liability theory. Plaintiff claimed a defendant physician’s negligent care led to her son’s death, and that the hospital was liable under an apparent agency theory on the basis that she was led to believe the physician was a hospital employee. The Third District held that apparent authority could not be based on the plaintiff’s or even the physician’s subjective understanding of some apparent authority. Id. Only the purported principal’s actions could create the apparent authority necessary to create an apparent agency relationship. The court found that there was insufficient evidence that the hospital engaged in any activities to create the appearance of an agency relationship. If the principal, for example, the hospital, does not hold the supposed agent out and its agent, therefore, a Summary Judgment on the apparent agency aspect of a Plaintiffs claim is correct, as a matter of law, unless Plaintiffs cannot present evidence to satisfy the first element which must be established to support an apparent agency theory of liability. Dalia v. Electronic Realty, Inc., 629 So.2d 1075 (Fla. 3d DCA 1994); Tarr v. Cooper, 708 So.2d 614 (Fla. 3d DCA 1998).
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1 comment:

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