REGINA A. KOBEL AND JAMES E. KOBEL, APPELLANTS,
v.
MARC I. SCHLOSSER, M.D., MARC I. SCHLOSSER, M.D., P.A., RICHARD E. KOWALSKY, M.D., AND RICHARD E. KOWALSKY, M.D., P.A., APPELLEES
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This medical malpractice appeal addresses whether summary judgment was properly granted to dismiss a defendant medical professional association based on an agency relationship claim. The court reversed, holding that agency is ordinarily a question of fact for the jury unless the evidence admits only one interpretation.
The court held that the issue of agency and apparent agency is ordinarily a question of fact for the jury to determine. Summary judgment resolving an agency relationship is proper only when the evidence is capable of just one interpretation, which the trial court did not establish here.
[1] The issue of agency, including apparent agency, is ordinarily a question of fact for the jury.
[2] Summary judgment on the issue of agency is appropriate only when the evidence is capable of only one interpretation.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The issue of agency (and apparent agency) is ordinarily a question of fact to be determined by the jury.”
Establishes the general legal principle that agency relationships are fact questions typically unsuitable for summary judgment disposition.
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Join FLexlaw to unlock all legal intelligenceAppellants Regina and James Kobel sued Dr. Marc Schlosser and his professional association for medical malpractice, alleging that Schlosser was acting…
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HERSEY, Judge.
In this appeal from a Final Judgment based upon an order granting summary judgment, we reverse. At issue before the trial court was an allegation in a complaint that a medical doctor, Marc Schlosser, and his professional association were liable for medical malpractice. It was further al leged that Schlosser “was acting as an agent, servant, employee and/or apparent agent of ... the Defendant, Kowalsky, P.A.” The summary judgment resolved this issue adverse to appellants’ interests by finding no liability on the part of Richard E. Kowalsky, M.D., P.A. The issue of agency (and apparent agency) is ordinarily a question of fact to be determined by the jury. See, e.g., Orlando Executive Park, Inc. v. Robbins, 433 So. 2d 491, 494 (Fla.1983); Richard Swaebe, Inc. v. Sears World Trade, Inc., 529 So. 2d 774, 775 (Fla.3d DCA 1988) (conflicting representations of the existence of an agency relationship presents a question of fact and should be submitted to the trier of fact); Jaar v. University of Miami, 474 So. 2d 239, 242 (Fla.3d DCA 1985) (same), rev. denied, 484 So. 2d 10 (Fla.1986).
The determination of an agency relationship can be resolved by summary judgment only when the evidence is capable of just one interpretation. See Blue Cross/Blue Shield of Florida, Inc. v. Weiner, 543 So. 2d 794, 797 (Fla. 4th DCA), rev. denied, 553 So. 2d 1164 (Fla.1989), cert. denied, 494 U.S. 1028, 110 S.Ct. 1475, 108 L.Ed.2d 612 (1990); Folwell v. Bernard, 477 So. 2d 1060 (Fla.2d DCA 1985), rev. denied, 486 So. 2d 595 (Fla.1986); Jaar, 474 So. 2d at 242.
While it was appellants’ burden to prove the agency relationship as the party alleging that relationship, see Pinon v. International Harvester Co., 390 So. 2d 154 (Fla. 3d DCA 1980), it remained appellee’s burden to prove the absence of material fact issues as the summary judgment mov-ant. See, e.g., Parker v. Dinsmore Co., 443 So. 2d 356, 358 (Fla. 1st DCA 1983).
We find that this latter burden has not been met by defendant Kowalsky, P.A., and we therefore reverse and remand for further appropriate proceedings.
REVERSED AND REMANDED.
LETTS and DELL, JJ., concur.
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Allene Robbins v. Hess, 659 So. 2d 424 (Fla. 1st DCA 1995)…s). Generally, the issue of agency or apparent agency is a question of fact to be determined by a jury. The question can be resolved by summary judgment in only those cases where the evidence is capable of but one determination. Kobel v. Schlosser, 614 So. 2d 6, 7 (Fla. 4th DCA 1993). The party alleging the agency relationship bears the burden to prove it, just as the party moving for summary judgment has the burden to prove the absence of material fact issues. Id. In this case, the trial court granted th…
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Dreggors v. Wausau Ins. Co., 995 So. 2d 547 (Fla. 5th DCA 2008)…because there was no record evidence that the attorney’s responsibilities in any way included discussions with the former officer/director concerning Ramlawi’s administration of the partnership’s companies. Id. The Dreggors cite Kobel v. Schlosser, 614 So. 2d 6, 6 (Fla. 4th DCA 1998), which reversed summary judgment because the determination of an agency relationship can be resolved by summary judgment only when the evidence is capable of just one interpretation. Further, while it was the plaintiffs’ burde…
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Sears Roebuck & Co. v. Williams, 877 So. 2d 5 (Fla. 3d DCA 2004)…agency relationship, summary judgment is improper. See Robbins, id. (finding that the question of apparent agency could be resolved by summary judgment only in cases where the evidence is capable of just one determination (citing Kobel v. Schlosser, 614 So. 2d 6, 7 (Fla. 4th DCA 1993))). Accordingly, we affirm in part, reverse in part and remand for new trial. GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge, concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Orlando Executive Park, Inc. v. Robbins, 433 So. 2d 491 (Fla. 1983)
- Jaar v. The Univ. OF Miami, 474 So. 2d 239 (Fla. 3d DCA 1985)
- Folwell v. Bernard, 477 So. 2d 1060 (Fla. 2d DCA 1985)
- Parker v. The Dinsmore Co., 443 So. 2d 356 (Fla. 1st DCA 1983)
- Yosef v. Passamaquoddy Tribe, 494 U.S. 1028 (U.S. 1990)
- Florida v. Christian, 494 U.S. 1028 (U.S. 1990)
- Blue Cross/Blue Shield OF Fla., Inc. v. Weiner, 543 So. 2d 794 (Fla. 4th DCA 1989)
- Pinon v. Int'l Harvester Co., 390 So. 2d 154 (Fla. 3d DCA 1980)
- Richard Swaebe, Inc. v. Sears World Trade, Inc., 529 So. 2d 774 (Fla. 3d DCA 1988)
- Kobel v. Marc I. Schlosser, M.D., 601 So. 2d 601 (Fla. 4th DCA 1992)