Apparent Agency for Torts: A Viable Claim in CT?
This article was originally printed in the Fall 2015 issue of the Connecticut Defense Lawyers Association's newsletter The Defense.
The Supreme Court will soon decide an important issue of agency law: whether the doctrine of apparent authority applies to actions sounding in tort.1 This issue has been in flux ever since the Appellate Court stated in a 2012 decision that "the doctrine of apparent authority cannot be used to hold a principal liable for the tortious actions of its alleged agent."2 Since 2012, superior courts have differed on how to apply this broad pronouncement. For example, many courts have refused to dismiss or strike agency claims in negligence cases, such as medical malpractice claims.3
In the latest chapter of this dispute, Cefaratti v. Aranow,4 the Appellate Court concluded for the first time that, as a matter of law, a hospital could not be liable for the alleged negligence of a non-employee physician under the doctrine of apparent authority, because that doctrine does not apply to torts in Connecticut. The Supreme Court granted plaintiff's petition for certification, and the case is ready for argu-ment this fall/winter.5 The final result in Cefaratti will have broad implications for defense counsel in all areas of practice.
The history of apparent agency in tort actions in Connecticut can be traced to a 1941 Supreme Court decision, Fireman's Fund Indemnity Co. v. Longshore Beach & Country Club, Inc.6 In Fireman's Fund, plaintiff sued to recover for damage to his car, which an employee of the defendant yacht club drove into the basin when he was retrieving the car from a parking spot. The employee was not a parking attendant. The trial court issued judgment for the defendant, finding that the employee was not acting within the scope of actual or apparent authority when he retrieved the plaintiff's car. The Supreme Court affirmed. In doing so, the Court discussed the test for apparent authority,7 but ultimately decided that the facts of the case did not meet the test. Accordingly, the Court never reached the issue of whether apparent authority is appropriate in tort cases.
1 Cefaratti v. Aranow, 315 Conn. 919 (2015) (granting certification).
2 L&V Contractors LLC v. Heritage Warranty Insurance Risk Retention Group, Inc., 136 Conn. App. 662 (2012).
3 See, e.g., Passmore v. Day Kimball Hosp., No. CV 11-6004320, 2014 WL 3360851 (Conn. Super. Ct. May 29, 2014) (Boland, J.) (denying motion to dismiss apparent agency claim in medical malpractice case); Carasone v. Gemma Power Systems, LLC, No. CV 12-6033846-S, 2013 WL 1943800 (Conn. Super. Ct. Apr. 17, 2013) (Wilson, J.) (denying motion to strike apparent agency count in negligence complaint).
4 154 Conn. App. 1 (2014).
5 The Supreme Court granted plaintiff's petition for certification limited to the following question: "Did the Appellate Court properly conclude that the doctrine of apparent authority does not apply to actions sounding in tort?" 315 Conn. 919 (2015).
6 127 Conn. 493 (1941).
7 The Court held that apparent authority requires two important facts: (1) that the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority, and (2) that the person dealing with the agent knew of the facts and acting in good faith had reason to believe, and did believe, that the agent possessed the necessary authority. 127 Conn. at 497.
[Full text is available in the PDF link below.]