Opinion
C.A. No. 04C-11-048 WLW.
Submitted: April 2, 2007.
Decided: July 26, 2007.
Upon Defendant Robin Achenbach's Motion for Summary Judgment. Denied.
Jennifer Kate Aaronson, Esquire of Potter Carmine Aaronson, P.A., Wilmington, Delaware; attorneys for the Plaintiffs.
Nancy E. Chrissinger Cobb, Esquire of Chrissinger Baumberger, P.A., Wilmington, Delaware; attorneys for Defendant Mark Achenbach.
R. Stokes Nolte, Esquire of Nolte Associates, Wilmington, Delaware; attorneys for Defendants Robin Achenbach and Poynter's Tree Farm.
Michael I. Silverman, Esquire of Silverman McDonald, Wilm ingt on, D elaw are; a ttorn eys for Defendant Allen Chorman Son, Inc.
ORDER
Presently before the Court is Defendant Robin Achenbach's Motion for Summary Judgment. Plaintiff Pamela I. Montgomery, individually and as guardian of Thomas J. Montgomery, brought this civil action as a result of a single vehicle accident that occurred on June 28, 2004.
The salient facts are as follows: Defendant Mark Achenbach picked up Alan Chorman and drove him to the "Poynter/Achenbach property" ("the property"), so Mr. Chorman could provide the Defendant with an estimate for the cost of aerially spraying trees located on the property that were infested with bag worms. The Poynter/Achenbach property is a property that consists of multiple discrete tracts of land owned by multiple individuals. The tracts of land are owned by Robert and Bonnie Poytner jointly (Robin Achenbach's parents), Robin Achenbach individually and Robin and Mark Achenbach jointly. A portion of the property is utilized to grow trees that are eventually sold to customers. The trees are generally bought for use as Christmas trees and are sold through an entity called Poynter's Tree Farm and Christmas Shop, Inc., which maintains a retail shop on the property. The shop is open six weeks a year during the Christmas season, and Robin Achenbach testified that all of the family members help out with the shop and business, including Mark Achenbach.
Mr. Chorman was originally a Defendant in this action. However, Mr. Chorman has been dismissed from the action by way of stipulation of the Parties.
The Court will refer to Mark Achenbach and Robin Achenbach occasionally by their first names in this decision for the sake of clarity.
Robin Achenbach leased a portion of her individually and jointly owned property to Poytner's Tree Farm and Christmas Shop, Inc. for the purpose of growing Christmas trees on the land. The Shop is run by members of Robin Achenbach's family. Subsequent to the expiration of these leases, the Parties continued to operate under the terms of the now expired leases. Robin Achenbach still receives funds from the leasing of her property, and the funds are deposited into herand Mark Achenbach's joint account.
After Mr. Chorman inspected the property (so that he could provide Mark Achenbach an estimate for the aerial spraying), Mr. Achenbach drove Mr. Chorman back to his principal place of business. While in transit, Plaintiffs allege that Mr. Achenbach negligently pulled his vehicle out into the right lane of Route 13. This caused Thomas Montgomery to swerve his motorcycle in order to avoid striking Mr. Achenbach's vehicle. Mr. Montgomery was thrown from his motorcycle as a result and suffered catastrophic injuries.
Mr. Montgomery sustained brain damage and remains in a vegetative state.
Mr. Chorman aerially sprayed trees within the Poynter/Achenbach property on June 29, 2004, the day after the accident. A bill for the spraying was sent to Mr. Achenbach, and Robin Achenbach was aware of the bill. A check drawn from Poynter's Tree Farm account was used to pay Mr. Chorman for his services.
Mark Achenbach initially asked Mr. Poynter about the possibility of getting the trees aerially spayed and Mr. Poynter stated that he thought it would be too expensive. Therefore, Mark Achenbach initiated the tree spraying. When the Achenbachs received the bill from Mr. Chorman, they intended to pay the bill out of their household account. However, when Mr. Poynter discovered how little Mr. Chorman charged for the service he provided, while at dinner with the Achenbachs, Mr. Poynter decided to pay the bill out of Poytner Farm's account.
Standard of Review
Summary Judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The facts must be viewed in the light most favorable to the non-moving party. Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances. However, when the facts permit a reasonable person to draw but one inference, the question becomes one for a decision as a matter of law. When a moving party through affidavits or other admissible evidence shows that there is no genuine issue as to any material fact, the burden shifts to the non-moving party to demonstrate that there are material issues of fact.Discussion
Plaintiffs brought an action against Robin Achenbach arguing that she should be held vicariously liable for the alleged negligent conduct of her husband, Mark Achenbach. Plaintiffs argue that a jury could reasonably conclude that Mark Achenbach was Robin Achenbach's agent at the time of the accident. Defendant Robin Achenbach contends that she cannot be held vicariously liable for the alleged conduct of her husband under theories of actual authority, apparent authority or respondeat superior. Therefore, Robin Achenbach argues that she is entitled to judgment as a matter of law.Actual authority is that authority which a principal expressly or implicitly grants to an agent. The Plaintiff's Second Amended Complaint alleges that "Defendant Robin Achenbach requested [that] Defendant Mark Achenbach drive Alan Chorman to her property to conduct the inspection and/or otherwise arrange for the aerial spraying of trees infested with bag worms on her property." The proffered claim is one of express actual authority. However, the record reflects that Robin Achenbach did not expressly give her husband authority to have the trees sprayed, and Robin was actually out of town when Mark made the arrangements with Mr. Chorman. Therefore, Robin Achenbach cannot be vicariously liable for the conduct of her husband under an actual express authority theory.
Billops v. Magness Constr. Co., 391 A.2d 196, 197 (Del. 1978).
Implied actual authority is evidenced by conduct, that is the conduct of the principal being such as to justify a jury in finding that the agent had actual authority to do what he did. The determination of implied [actual] authority depends on the relationship between the principal and agent and not on what a third party believes about the relationship. Specifically, implied authority is authority that the agent reasonably believes he has as a result of the principal's actions. This may be proved by evidence of acquiescence [of the principal] with knowledge of the agent's acts, and such knowledge and acquiescence may be shown by evidence of the agent's course of dealing for so long a period of time that acquiescence may be assumed.
Liberty Mut. Ins. Co. v. Enjay Chemical Co. (now Exxon Corp.), 316 A.2d 219, 222 (Del.Super. 1974).
Wilson v. Active Crane Rentals, Inc., 2004 WL 1732275, *2 (Del.Super.).
Id.
Liberty Mut. Ins. Co., 316 A.2d at 222.
Viewing the facts in a light most favorable to the non-moving Plaintiff, the relationship between Mark Achenbach and Robin Achenbach, as an individual owner and joint owner of discrete tracks of land that make up the Poynter/Achenbach property, is such that a jury could find that Mark acted as Robin's agent when he prepared to have the trees sprayed. Robin Achenbach was a joint owner and an individual owner of discrete tracks of land on the Poynter/Achenbach property. Mark Achenbach sought to have portions of the Poynter/Achenbach property aerially sprayed, because certain trees on the property were infested with bag worms. The spraying of the trees would be to the obvious benefit of Robin Achenbach, in her capacity as an owner of the land (individually and jointly) and as a family member who helped to run Poynter's Tree Farm and Christmas Shop, Inc.
Citing case law from other jurisdictions, Plaintiffs argue that the jury is entitled to consider the Achenbach's marital relationship as a factor in reaching its agency determination. The Court does not need to decide the correctness of this specific proposition at this time. In general, the Delaware Supreme Court has stated that "there is no presumption of agency in a marital relationship." Facciolo v. State, Division of Revenue, 358 A.2d 880, 881 (Del.Supr. 1976).
Robin Achenbach testified that she assumed that the trees were sprayed yearly, but she was unaware of who typically handled the spraying of the trees. A jury could decide that this shows that Ms. Achenbach had knowledge that trees on the property were sprayed in the past. It may also tend to show Robin's acquiescence regarding Mark's ability to handle the spraying of the trees on the property, which was a benefit to both individuals. The trees had apparently been sprayed previously by Mark Achenbach himself, but the border trees had grown too tall to spray them effectively from ground level. The record is a bit confusing concerning what trees on the Poynter/Achenbach property were actually sprayed, but it appears that border trees on discrete tracts of land owned by the Poynters and by Mark and Robin Achenbach jointly were sprayed, along with trees inside the boundary of the Poytner/Achenbach property (ie. the Christmas trees). Bag worm infestation can travel, which created a risk that other trees on the property could have developed bag worms. Therefore, Mark Achenbach wanted to make sure Mr. Chorman sprayed all of the infested trees. When Mr. Chorman sent an invoice to the Achenbachs' residence for his aerial spraying services, Robin Achenbach was aware of and did not dispute the bill. Further, the Achenbachs initially intended to pay for the service out of funds from their household account.
See Mark Achenbach's deposition, dated September 27, 2006, at page 79 — 80.
See Alan Chorman's deposition, dated January 6, 2006, at page 11.
See Mark Achenbach's deposition, dated September 27, 2006, at page 79 — 80.
The determination of whether an agency relationship exists is normally a question of fact. It is well settled that questions of agency are not subject to absolute rules but, rather, turn on the facts of the individual case. In the case sub judice, there is a factual dispute as to whether an agency relationship existed between Robin and Mark Achenbach. The record is unclear as to whether such agency existed and therefore summary judgment cannot be granted.
Fisher v. Townsends, Inc., 695 A.2d 53, 61 (Del.Supr. 1997).
Id. citing Sussex County v. Morris, 610 A.2d 1354, 1360 (Del.Supr. 1992).
See Wilson v. Pepper, 1994 WL 713983, *4 (Del.Super.) (The Superior Court held that there was a factual dispute as to whether there was an agency relationship involving a husband and wife.).
Based on the foregoing, Defendant Robin Achenbach's Motion for Summary Judgment is denied. IT IS SO ORDERED.