concurring.
I concur in the opinion of the majority. The majority concludes that MeDonald's amended complaint must survive Smart's motion to dismiss not because he alleges that Smart was a health care provider under the statute, but instead, he alleges issues of liability based upon agency law. In that respect, I write separately to emphasize that the trial court erroneously concluded that "even if Smart is acting as the hospital's agent, the statutorily imposed duty remains with the hospital and does not shift to the agent." Record at 307.3
It is well established that in order to avoid personal liability, an agent must disclose both the capacity in which he acts and the existence and identity of his principal. Tolliver v. Mathas, 538 N.E.2d 971, 976 (Ind.Ct.App.1989), trans. denied; Brown v. Owen Litho Service, Inc., 179 Ind.Ct.App. 198, 201, 384 N.E.2d 1132, 1135 (1979). This court has clarified an agent's lability to a third party. It is not sufficient that the third person have knowledge of facts and cireumstances which, if followed by inquiry, would disclose the existence and identity of the principal. Tolliver, supra, at 976. Thus, unless the third person knows or the facts are such that a reasonable person would know of the principal's existence and identity, the agent must be held to be acting for an undisclosed principal and is held liable in the same manner as if he were the principal. Id. Moreover, disclosure is a question of fact to be determined by the facts and cireumstances surrounding the transaction. Id. Thus, on remand, at least two potential factual questions remain: 1) whether an ageney relationship exists between Smart and the hospitals; and 2) whether Smart disclosed it was acting on behalf of the hospitals.
For this reason, I concur in the majority's decision to reverse the dismissal of McDonald's amended complaint.
. The order dismissing McDonald's fourth amended complaint grants Smart's motion to dismiss for the reasons cited in the trial court's prior order dismissing Smart. Record at 380. Thus, the trial court's order dated August 31, 1994, which dismissed the third amended complaint is relevant to this appeal.