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                                       )              UNPUBLISHED OPINION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
No. 75021-6-1/2


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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No. 75021-6-1/3


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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No. 75021-6-1/5


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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No. 75021-6-1/6


      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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No. 75021-6-1/7


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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