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Y O U N G L A W Y E R S J O U R N A L
44
JULY/AUGUST 2015
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.