CBA Record

Y O U N G L A W Y E R S J O U R N A L

THE PURSUIT OF AGENCY IN TORT Creative Thinking and Practical Strategy By Glennon F. Curran

B efore filing a complaint, agency should be a routine part of your case assessment. Though it will not always be a viable theory, it is nonetheless an important part of your strategic toolbox. This article will provide a basic framework for identifying and pursuing an agency theory in tort. Agency is useful because it allows you to access deeper pockets when the same is nec- essary for your client to be made whole. A hypothetical is instructive. Your client is the victim of a severe motor vehicle accident causing hundreds of thousands of dollars

in personal damages. The defendant has the minimum liability insurance coverage required under Illinois law—twenty thou- sand dollars. You win a huge negligence verdict for your client. The defendant’s insurance carrier hands you a $20,000 check. You file a separate action to collect the excess verdict from the defendant, but she subsequently declares bankruptcy. You and your client never collect the excess verdict because it is discharged as part of the bankruptcy proceeding. It is usually difficult, sometimes impos- sible, and always expensive to collect an

excess award from an individual defen- dant. Thus, where the tortfeasor’s liability insurance is insufficient to cover your client’s damages, it is vitally important–at the outset of the case–to identify and pursue all potential sources of recovery, one of which might be an agency theory that imputes vicarious liability to a third party. At the same time, you have an ethi- cal obligation to file claims in good faith. Therefore, you cannot merely start naming your client’s employer, other persons, and entities; you must identify some kind of factual basis for agency.

44 JULY/AUGUST 2015

Made with