Murphey v. Mid-Century Ins. Co.

No. 13-2598-JAR-JPO, 2014 U.S. Dist. LEXIS 79947 (D. Kan. June 12, 2014)



Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to judgment as a matter of law." In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party. A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." An issue of fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party."


Defendant Mid-Century issued a policy of automobile liability insurance that provides liability coverage for Defendant Wiggs. Kevin Lash, a Special General Adjuster for Mid-Century, was assigned as the adjuster to handle Plaintiff's claim against it stemming from a motor vehicle accident involving plaintiff and defendant driver. Special adjuster and plaintiff's counsel went back and forth via email negotiating an acceptable settlement price. Plaintiff's counsel finally agreed to the amount of $221,000, however, it turned out to be typographical error that he did not catch at the time he sent the e-mail. He intended to type $121,000 instead. Plaintiff filed a Petition seeking to enforce the parties' settlement agreement. She alleges state law claims for breach of contract, and for a declaratory judgment that the parties entered into a binding and enforceable settlement agreement, the terms of which call for Mid-Century to pay Ms. Murphey $221,000. The case was removed on November 21, 2013. Defendant asserts a counterclaim for rescission. In its Answer and Counterclaim, it denies that any binding or enforceable contract was made or entered into with plaintiff as alleged in the Petition, but in the event it is determined that a contract was made or entered into, Mid-Century maintains that such contract was retracted and rescinded by defendant promptly upon notice of the typographical error. No discovery has been conducted in this matter, either in state of federal court.


Is plaintiff entitled to the relief of summary judgment?




It is clear from the summary judgment record that while Mr. Lash did not have actual authority to settle the case for $221,000, he had apparent authority that was sufficient to bind Mid-Century. "'An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third persons to believe to be his agent even though no authority, either express or implied, has been conferred upon him.'" The apparent authority doctrine applies in exactly these circumstances: "when a third party has dealt with an ostensible agent and then seeks to bind the principle to a transaction despite the fact that the agent had no actual authority to bind him." There is no genuine issue of material fact that Plaintiff, through her attorney, believed that Mr. Lash had authority to bind Mid-Century to the settlement offers that he made by e-mail. Mr. Lash was a special general adjuster for the insurance company and held himself out to Mr. Campbell as the person to whom settlement authority had been granted. Given the reasonableness of Mr. Lash's $221,000 offer as described throughout this order, Plaintiff would have no reason to know or question Mr. Lash's authority to offer this amount in settlement of the claim. Because Mr. Lash had apparent authority to settle Plaintiff's insurance claim, Mid-Century cannot repudiate on this basis. As describe at the beginning of the discussion, once there has been a meeting of the minds and a settlement offer accepted, it cannot be repudiated.

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