IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HEIDI MORGAN, an unmarried individual, •)
) No. 75021-6-1
Appellant, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
MICHAEL B. HEBERT and JANE DOE )
HEBERT, husband and wife and the )
marital community thereof; WILLIAM )
HEBERT and MARIA HEBERT, husband )
and wife and the marital community )
composed thereof, )
)
Respondents. ) FILED: February 21, 2017
)
APPELWICK, J. — Michael took his parents' vehicle without permission.
They demanded that he return it. Morgan argues that Michael was his parents'
agent when he negligently collided with her vehicle while he was returning the
car as directed. The trial court dismissed Morgan's claims against the parents on
summary judgment. We affirm.
FACTS
This case arises out of a motor vehicle accident involving Michael Hebert
and Heidi Morgan. Michael's parents, William and Maria Hebert, owned the
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vehicle that Michael was driving. 1 Michael was an adult at the time of the
accident. He did not live with his parents. Michael described his relationship
with his parents as "not the best." But, Michael would occasionally visit his
parents' house and was permitted to stay the night. Michael's parents had made
very clear to him that he could not use their 1994 Infinity J304D vehicle. Michael
also had a suspended driver's license. But, on May 23 or 24, 2014, while his
parents were gone, Michael took the Infinity.
When they discovered that the vehicle was missing, the parents did not
immediately report the car stolen. They suspected that Michael had taken it.
William immediately called Michael. He demanded that Michael return the
vehicle. Maria specifically remembered William telling Michael to "[Met the car
home." Over the next few days, the parents called Michael and sent him multiple
text messages asking him to return the vehicle. They threatened to notify the
police. They searched their local neighborhood for the vehicle, and they checked
locations that they knew Michael frequented. Finally, on Monday, May 26, 2014,
while driving the car back to his parents' house, Michael negligently collided with
Morgan.
Morgan filed a complaint for negligence that named Michael and his
parents as defendants. The parents sought summary judgment regarding their
liability, which the trial court granted. After the claims against the parents were
1 This case involves three parties: (1) Morgan,(2) Michael Hebert, and (3)
Michael's parents, William and Maria Hebert. For the purposes of clarity, we
refer to Michael Hebert as "Michael," and William and Maria Hebert either by their
first names, or collectively as "the parents." We intend no disrespect.
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dismissed, an arbitrator awarded Morgan $42,444 in damages from Michael.
Morgan appeals the order granting summary dismissal of the claims against
William and Maria.
DISCUSSION
Morgan argues that summary judgment was improper because Michael
was acting as his parents' agent. She asserts this is so, because Michael was
following their orders to return their vehicle, which he originally took without
permission.
Appellate courts review summary judgment orders de novo. Owen v.
Burlington N. & Santa Fe R.R., 153 Wn.2d 780, 787, 108 P.3d 1220 (2005).
Summary judgment is warranted if there are no genuine issues of material fact
and the moving party is entitled to judgment as a matter of law. Van Nov v. State
Farm Mut. Auto Ins. Co., 142 Wn.2d 784, 790, 16 P.3d 574 (2001). All facts and
reasonable inferences must be considered in the light most favorable to the
nonmoving party. Clark v. Baines, 150 Wn.2d 905, 910-11, 84 P.3d 245(2004).
The existence of a principal-agent relationship is a question of fact unless
the facts are undisputed. O'Brien v. Hafer, 122 Wn. App. 279, 284, 93 P.3d 930
(2004). The question of control or right of control is also one of fact for the jury.
Id. But, if the facts are undisputed and, without weighing the credibility of
witnesses, there can be but one reasonable conclusion drawn from the facts, the
nature of the relationship between the parties becomes a question of law. Id.
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Vicarious liability of a principal for the negligent acts of an agent is
dependent upon whether the principal controls or had the right to control the
details of the physical movements of the agent. McLean v. St. Regis Paper Co.,
6 Wn. App. 727, 729-30, 496 P.2d 571 (1972). Both the principal and agent must
consent to the relationship. O'Brien, 122 Wn. App. at 283. It is the right of
control, not its exercise, that is decisive. Id. at 284.
Morgan relies primarily on two Washington cases: Baxter v. Morningside,
Inc., 10 Wn. App. 893, 899, 521 P.2d 946 (1974), and O'Brien, 122 Wn. App.
279. In Baxter, Hoffer negligently collided with Baxter while Hoffer was
volunteering for Morningside, a charity. 10 Wn. App. at 895. Hoffer had
previously been a Morningside employee, but he had recently transitioned to a
volunteer. Id. at 894-95. The trial court granted Morningside's motion for
summary judgment, finding no vicarious liability. Id. at 894. The Court of
Appeals reversed. Id. at 899. It held that, even though Hoffer was a volunteer,
an agency relationship existed because he was performing work as requested by
a Morningside representative. Id. at 895, 897-98. The court found "it particularly
significant that. .[there] was a mutual agreement between Hoffer and
Morningside controlling the time, destination, purpose[,] and especially the
means of Hoffer's undertaking." Id. at 898.
In O'Brien , Miller asked her roommate-boyfriend, whose license was
suspended, to pick her up from a bar. 122 Wn. App. at 282. Miller told him
where to find her keys in their dwelling and where to pick her up. Id. Her
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boyfriend struck the plaintiff's vehicle on the way to pick Miller up. Id. Relying on
Baxter, the court found that there existed a genuine issue of material fact on
whether the boyfriend was acting as Miller's agent. Id. at 285-86. Echoing
Baxter, the O'Brien court stated that " 'a mutual agreement controlling... the
time, destination, and purpose of the trip is a significant factor' " in determining
whether the principal actually had the right to control the agent. Id. at 287
(quoting Frankle v. Twedt, 234 Minn. 42,49,47 N.W.2d 482(1951)).
Morgan argues here that, like in O'Brien, the alleged principal controlled
(1) the time—in both cases, immediately; (2) the destination—in O'Brien the
pickup place and here the parents' home;(3)the purpose—in O'Brien to pick the
owner up and in this case to bring the parents' car home; and (4) the means—in
both cases, driving.2
But, an agency relationship arises only when the principal agrees to the
agent's conduct. See O'Brien, 122 Wn. App. at 285. And, unlike Baxter and
O'Brien, the parents did not ask Michael to take possession of the car or to work
on their behalf. Rather, the parents had made it clear to Michael that he was
never to use their vehicle. Yet, he took the car without their knowledge or
consent. And, Michael continued to possess the car, even after his parents
demanded that he return it immediately. His defiance demonstrates the parents'
complete lack of control.
2 In her complaint, Morgan argued that the parents were alternatively
liable under the family car doctrine. But, in her response to the parents' motion
for summary judgment, she expressly abandoned her family car doctrine
arguments. The family car doctrine is therefore not at issue here.
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The law does not hold the vehicle owner liable for the negligent acts of an
individual that has taken the vehicle unlawfully. See Kim v. Budget Rent A Car
Sys., Inc., 143 Wn.2d 190, 202, 15 P.3d 1283 (2001)("[W]e have held that the
owner of an unsecured vehicle that is stolen and later involved in an accident is
not liable for a third party's damages caused by the accident."). Michael had no
more permission to possess the vehicle than the thief in the Kim case. None of
Morgan's cited authority supports the principle that a person whose property is
wrongfully taken can be held liable for the negligence of the person who
wrongfully took the property.
Nevertheless, Morgan portrays the parents' demands that Michael return
the vehicle as establishing an agency agreement with Michael.3 According to
Morgan, once the parents requested that Michael return the car, his possession
and use became permissive, for his parents' benefit (the vehicle's return), and
under their control. If not establishing control, Morgan argues that, at a
minimum, a question of fact has been raised which precludes summary
judgment.
We hold that, as a matter of law, the bare demand that wrongfully taken
property be returned, even when complied with, is insufficient to create a
question of fact regarding the owner's right of control over the possessor, as is
3 The parents argue that the "[Met the car home" statement is not
admissible because, under the Restatement(Second) of Torts § 111 (1965), it is
privileged as a statement for the purposes of recaption. But, regardless of the
statement's admissibility, we hold that the parents cannot be held liable under
these facts. We therefore decline to address their privilege of recaption
argument and whether Washington law recognizes such a privilege.
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necessary to establish agency. The trial court did not err in granting the parents'
motion for summary judgment.4
We affirm.
WE CONCUR:
4 Morgan moved for summary judgment in her response to the parents'
motion for summary judgment. The parents therefore argue that Morgan's
motion was not properly before the trial court. But, because summary judgment
in favor of the parents was proper, we decline to address issues pertaining to
Morgan's countermotion for summary judgment.
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Heidi Morgan v. Michel Hebert
Combined Opinion