Apparent Agency requires actual acts to hold a hotel liable for the injuries allegedly caused by a tour company

Apparent agency requires actual cloaking by the principal with the cloth of agency on the agent so that third parties believe what they are assuming. The third parties must then reply on the agency to their detriment.

Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901

State: Pennsylvania, United States District Court for the Eastern District of Pennsylvania

Plaintiff: Malleria Cash and Frederika Harrell

Defendant: SIX CONTINENTS HOTELS

Plaintiff Claims: Negligence

Defendant Defenses: No relationship with the true defendant

Holding: For the defendant

Year: 2004

The plaintiff’s in this case were in Montego Bay Jamaica. They were staying with the defendant, Holiday Inn Sunspree Hotel. Through the hotel, they arraigned a tour to Dunns River Falls in Ocho Rios, Jamaica with Harmony Tours, Ltd.

Harmony Tours Ltd maintained a desk in the hotel lobby. However, there was no other legal connection between Holiday Tours and the defendant hotel.

The plaintiffs were transported to the falls and dropped off “for a long period of time without any guidance or assistance.” While they were there, the plaintiff’s claimed they were trying to climb the waterfall without the assistance of a guide, slipped, fell and sustained injuries.

They filed this suit in Federal District Court for the Eastern District of Pennsylvania, which the parties agreed was the correct court and that Pennsylvania law, controlled the case.

Analysis: making sense of the law based on these facts.

The court started out going through the requirements as the court to grant a motion for summary judgment filed by the defendant. The issue that must be answered on whether to grant a motion for summary judgment is “whether reasonable minds may differ as to the verdict.” If there are no facts that are in dispute and no reasonable mind can find differently than the motion should be granted.

However, if the facts can be interpreted differently or a reasonable mind might find differently, then a motion for summary judgment should not be granted.

The basis for the argument of the plaintiff’s that the tour company was related was not legal but apparent. The plaintiff’s argued the tour company was an apparent agent of the tour company. An apparent agent is defined as:

…one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such an apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

If the principal “clothes his agent with apparent authority is estopped to deny such authority.” However, the court could find nothing that supported this argument.

In looking at the facts the court identified all the ways the plaintiff’s has been informed that the defendant hotel was not associated with the tour company.

No one every represented that the tour company was an agent or affiliated in any special way with the hotel. The ticket the plaintiffs were given after purchasing the tour state:

…take notice that Harmony Tours Ltd. which conducts tours and excursions sold at this desk is an independent contractor. Holiday Inn (Jamaica) Inc. is not responsible for any loss, damage or injury which anyone may suffer arising out of, or in the course of, or in connection with any such tour or excursion.

On top of that, there was no evidence offered by the plaintiff to support its theory.

Even if there was evidence to support facts showing apparent authority, the plaintiffs must then prove that they justifiably relied upon the representation. The plaintiff’s would have to argue that they relied upon representations that the tour was the principal of the hotel and that the hotel made a representation that leads to the injury.

In this case, that is a reach based on the facts and the court did not buy it.

The case was dismissed.

So Now What?

The critical part is whenever it may appear that you are in a relationship with another business, and you are not; you need to make all customers of both or yours aware of the facts.

Notices posted at the cash register of a retail store that the store is not related to any of the third parties soliciting business in the store.

If you are a hotel, then a sign in the lobby explaining the relationship or near any brochures as well as in this case, printing that notice on the receipt.

Always be up front with your relationship with your customers.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2015 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law       Rec-law@recreation-law.com              James H. Moss

#AdventureTourism, #AdventureTravelLaw, #AdventureTravelLawyer, #AttorneyatLaw, #Backpacking, #BicyclingLaw, #Camps, #ChallengeCourse, #ChallengeCourseLaw, #ChallengeCourseLawyer, #CyclingLaw, #FitnessLaw, #FitnessLawyer, #Hiking, #HumanPowered, #HumanPoweredRecreation, #IceClimbing, #JamesHMoss, #JimMoss, #Law, #Mountaineering, #Negligence, #OutdoorLaw, #OutdoorRecreationLaw, #OutsideLaw, #OutsideLawyer, #RecLaw, #Rec-Law, #RecLawBlog, #Rec-LawBlog, #RecLawyer, #RecreationalLawyer, #RecreationLaw, #RecreationLawBlog, #RecreationLawcom, #Recreation-Lawcom, #Recreation-Law.com, #RiskManagement, #RockClimbing, #RockClimbingLawyer, #RopesCourse, #RopesCourseLawyer, #SkiAreas, #Skiing, #SkiLaw, #Snowboarding, #SummerCamp, #Tourism, #TravelLaw, #YouthCamps, #ZipLineLawyer, Agency, Apparent Authority, Principal, Hotel, Tour Company, Jamaica, Dunns River Falls, Montego Bay,

 


Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901

Cash v. Six Continents Hotels, 2004 U.S. Dist. LEXIS 2901

MALLERIA CASH and FREDERIKA HARRELL, Plaintiffs, v. SIX CONTINENTS HOTELS, Defendant.

CIVIL ACTION NO. 03-3611

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

2004 U.S. Dist. LEXIS 2901

February 19, 2004, Decided

February 19, 2004, Filed

DISPOSITION: Defendant’s motion for summary judgment granted.

COUNSEL: [*1] For MALLERIA CASH and FREDERIKA HARRELL, Plaintiffs: HOWARD M.

GIRSH, STEINBERG & GIRSH, P.C., PHILADELPHIA, PA.

For SIX CONTINENTS HOTELS, BY ITS AGENT OR SUBSIDIARY HOLIDAY INN, Defendant:

FRANCIS H. GREY, JR., JENNIFER M. BROOKS, LAVIN COLEMAN O’NEIL RICCI FINATELLI & GRAY, PHILADELPHIA, PA.

JUDGES: RONALD L. BUCKWALTER, S.J.

OPINION BY: RONALD L. BUCKWALTER

OPINION:

MEMORANDUM

BUCKWALTER, S.J.

February 19, 2004

Presently before the Court is Defendant Six Continents Hotels’ Motion for Summary Judgment, Plaintiffs Malleria Cash’s and Frederika Harrell’s (collectively “Plaintiffs”) Opposition thereto and Defendant’s Reply to Plaintiffs’ Opposition. For the reasons set forth below, Defendant’s motion is granted.

I. BACKGROUND

On or around April 30, 2001, Plaintiffs were staying at the Holiday Inn Sunspree Hotel (“Hotel”) while they vacationed in Montego Bay, Jamaica. The Hotel is owned by SC Hotels & Resorts (Jamaica) Ltd., which is an affiliate of Defendant. While staying at the Hotel, Plaintiffs arranged to take a tour of the Dunns River Falls in Ocho Rios, Jamaica. Plaintiffs booked the tour with a local tour company, Harmony Tours Ltd. For the convenience of its guests, the Hotel [*2] permitted Harmony Tours to maintain a desk in the Hotel lobby where guests could purchase tours. It is undisputed that the Hotel and Harmony Tours have no legal affiliation.

On or around April 30, 2001, Harmony Tours transported Plaintiffs to Dunns Rivers Falls. Plaintiffs allege that they were dropped off at the Falls “for a long period of time without any guidance or assistance.” (Compl. at P 3.) Plaintiffs claim that while they were trying to climb the waterfall – without the assistance of a guide – they slipped, fell and sustained injuries.

On May 13, 2003, Plaintiffs filed a one count complaint in state court alleging that Defendant was negligent for failing to provide a guide as they toured the Falls. On June 12, 2003, Defendant removed the case to this Court.

The parties do not dispute that Pennsylvania law controls this case.

II. STANDARD OF REVIEW

A motion for summary judgment will be granted where all of the evidence demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A dispute about a material fact is genuine [*3] “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Since a grant of summary judgment will deny a party its chance in court, all inferences must be drawn in the light most favorable to the party opposing the motion. United States v. Diebold, Inc., 369 U.S. 654, 655, 8 L. Ed. 2d 176, 82 S. Ct. 993 (1962).

The ultimate question in determining whether a motion for summary judgment should be granted is “whether reasonable minds may differ as to the verdict.” Schoonejongen v. Curtiss-Wright Corp., 143 F.3d 120, 129 (3d Cir. 1998). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.

III. DISCUSSION

The parties do not dispute that Defendant and Harmony Tours are not legally affiliated in any way. Additionally, there is no dispute that Harmony Tours was not a servant or actual agent of Defendant. Rather, Plaintiffs’ sole contention is that Harmony Tours was an apparent agent of Defendant; therefore, [*4] Defendant should be held liable for Harmony Tours’ alleged negligence. (Pls.’ Mot. P 5.)

The Restatement (Second) of Agency § 267 outlines the rule for apparent agency and states, “one who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.” Drexel v. Union Prescription Centers, Inc., 582 F.2d 781, 790-91 (3d Cir. 1978)(citing Restatement (Second) of Agency).

While Pennsylvania has not formally adopted § 267, it has adopted the theories of apparent authority and agency by estoppel, which state that “a principal who clothes his agent with apparent authority is estopped to deny such authority.” Myszkowski v. Penn Stroud Hotel, Inc., 430 Pa. Super. 315, 634 A.2d 622, 629 (Pa. Super. Ct. 1993). As the Myszkowski Court noted, apparent agency, “as embodied in § 267, is substantially similar to the doctrines of apparent authority and agency by estoppel. [*5] “ n1 Id.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n1 The Court also noted that “both apparent authority and agency by estoppel are customarily only relevant in the context of business transactions.” Id.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – –

Plaintiff has not offered any evidence whatsoever to show that Harmony Tours had apparent authority or that Harmony Tours was Defendant’s apparent agent.

Plaintiffs have not even alleged, let alone offered evidence to show, that Defendant made any representation to Plaintiffs that Harmony Tours was its agent. Rather, Plaintiffs stated in their depositions that they just assumed that Harmony Tours was affiliated with Defendant because Harmony Tours had a desk in the Hotel’s lobby. (Pls.’ Br. P 5.) In fact, Plaintiff Harrell testified that nobody at Harmony Tours or the Hotel ever represented that the two entities were affiliated. (Harrell Dep. Tr. at 34-35.) Plaintiffs have simply not offered any evidence that shows Defendant held out Harmony Tours as its agent.

Additionally, the undisputed evidence shows that Harmony Tours actually supplied [*6] Plaintiffs with direct information that Harmony Tours was not an agent of Defendant. Both parties submitted photographs of Harmony Tours’ display desk in the Hotel. (Pls.’ Br. Ex. 4; Def.’s Br. Ex. D.) Behind the desk was a large sign that listed each of the tours that were available. In large capital bold letters, the top of the sign stated “HARMONY TOURS.” Furthermore, the following language was printed on the tour tickets that Plaintiffs purchased:

take notice that Harmony Tours Ltd. which conducts tours and excursions sold at this desk is an independent contractor. Holiday Inn (Jamaica) Inc. is not responsible for any loss, damage or injury which anyone may suffer arising out of, or in the course of, or in connection with any such tour or excursion. n2 (Def.’s Br. Ex. C.)

Not only is there no evidence that Defendant made representations that it was Harmony Tours’ principal, but Harmony Tours directly represented to Plaintiffs that it was an independent contractor that was not affiliated with Defendant.

Accordingly, Plaintiffs cannot meets its burden of proving apparent authority or agency by estoppel.

– – – – – – – – – – – – – – Footnotes – – – – – – – – – – – – – – –

n2 Plaintiffs argue that this language is an exculpatory clause, and that the validity of such clauses should be determined by a jury. Plaintiffs argument, however, misses the point. Defendant does not offer this language to show that it cannot be held liable for negligence. Rather, Defendant offers this language to show that Harmony Tours informed its customers that it was an independent contractor and not an agent of Defendant; therefore, Plaintiffs cannot succeed on a theory of apparent authority.

– – – – – – – – – – – – End Footnotes- – – – – – – – – – – – – – [*7]

Lastly, even if Plaintiffs could show that Defendant made a representation that it was affiliated with Harmony Tours, Plaintiffs must then show that they justifiably relied on the representation. Myszkowski, 634 A.2d at 629.

Plaintiffs have not supplied any evidence that they relied on any representation made by Defendant. In fact, during her deposition, with regard to purchasing a ticket for the tour, Plaintiff Frederika Harrell testified as follows:

Q. Would you have not bought that ticket if you found out Harmony Tours was not affiliated with Holiday Inn?

A. I don’t know. I mean, I probably would have, because I wanted to take the tour. (Pls.’ Mot. P 5.)

Plaintiff Harrell’s own testimony shows that even if Defendant had made a representation that it was affiliated with Harmony Tours, she did not rely on that representation in any way. She would have taken the tour regardless of who was offering it.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is granted and judgment is entered against Plaintiffs and on behalf of Defendant. An appropriate Order follows.

ORDER

CIVIL ACTION NO. 03-3611 [*8]

AND NOW, this 19th day of February, 2004, upon consideration of Defendant Six Continents Hotels’ Motion for Summary Judgment (Docket No. 7), Plaintiffs Malleria Cash’s and Frederika Harrell’s Opposition thereto (Docket No. 10) and Defendant’s Reply to Plaintiffs’ Opposition (Docket No. 11), it is hereby ORDERED that Defendant’s Motion for Summary Judgment is GRANTED and judgment is entered on behalf of Defendant and against Plaintiffs. This case is now CLOSED.

BY THE COURT:

RONALD L. BUCKWALTER, S.J.


Rules (and laws) don’t control behavior. This school district it does the exact opposite, the more rules the more bad behavior

No rules also increased student attentiveness, increased their creative side and stopped bullying. Kids were too busy having fun to be a problem.

This is an amazing article.  Here are some quotes from the article and the principle which in this day and age in the US is sort of mind blowing.

Fewer children were getting hurt on the playground. Students focused better in class. There was also less bullying, less tattling. Incidents of vandalism had dropped off.

The parent continued: “I just wanted to make sure you don’t change this play environment, because kids break their arms.”

This is my favorite quote!

“I’ve been the principal who’s stood there and said ‘Oy, kid! Get off your bike! You’ve got to walk your bike!’ Then I’d go away and think ‘Why the hell did I say that?’”

Don’t ride your bike you may get hurt! Why did the kids’ parents buy the child a bike? We know it was not to get hurt, so why can’t the kid ride a bike.

But the results spoke for themselves, he said. The students weren’t hurting themselves — in fact, they were so busy and physically active at recess that they returned to the classroom ready to learn. They came back vibrant and motivated, not agitated or annoyed.

Children don’t hurt themselves because they’re testing their boundaries, Mr. McLachlan said. They don’t set out to recklessly self-injure, though it may happen in the process of finding their footing.

Who are the rules for? Adults! Kids’ don’t want rules; kids don’t remember rules and kids work hard to ignore rules. Obviously the only reason to have rules is because adults like rules. Wait that does not make sense. It must be because adults believe that rules work. Wait, our prisons are full and overcrowded. Why do we have rules?

So many of the rules, he said, are “ridiculous,” and designed to soothe adults. That said, there are still limitations to the two, 40-minute long free play breaks each day.

If a kid is hurt breaking a rule then the adults have an excuse.

·         It’s not my fault

·         The kid deserved it he broke the rule

This principal is amazing.  Read this quote!

Mr. McLachlan said. “One of the rules I said facetiously is kids aren’t allowed to hurt other people. But in fact they are. … If you hurt somebody in a game where you are playing hard, or a boxing match or a stone-throwing competition, for me it’s absolutely fine — as long as the other person was willing to get hurt.”

The results from the principals thinking?

He knew children might get hurt, and that was exactly the point — perhaps if they were freed from the “cotton-wool” in which their 21st century parents had them swaddled, his students may develop some resilience, use their imaginations, solve problems on their own.

This is my favorite statement from a different perspective. People don’t sue for money, they sue because they have bills to pay.

Kiwi parents are much less likely to sue a school if a child is injured anyway, he said, partly because a litigious culture just doesn’t exist and also because New Zealanders’ health care is fully paid for by the state if they’re victims of an accident.

It gets pretty absurd when we make playgrounds safe and then build climbing walls and ropes courses for adults to go have fun!

Read this article!When one New Zealand school tossed its playground rules and let students risk injury, the results were surprising

Here are some more articles exploring these concepts.

Year in Ideas: The risks of overprotective school policies

Return of risk: The growing movement to let kids play like kids

Some articles I’ve written about the subject:

An example of adults and money getting in the way of kids has fun

Is being overprotective putting our kids at risk

This article takes a real look at the risks parents allow their children to face           

What do you think? Leave a comment.

If you like this let your friends know or post it on FB, Twitter or LinkedIn

Copyright 2014 Recreation Law (720) Edit Law

Email: Rec-law@recreation-law.com

Google+: +Recreation

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog:www.recreation-law.com

Mobile Site: http://m.recreation-law.com

By Recreation Law  Rec-law@recreation-law.com  James H. Moss  #Authorrank

<rel=”author” link=” https://plus.google.com/u/0/b/112453188060350225356/” />

#RecreationLaw, #Recreation-Law.com, #OutdoorLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #law, #TravelLaw, #JimMoss, #JamesHMoss, #Tourism, #AdventureTourism, #Rec-Law, #RiskManagement, #CyclingLaw, #BicyclingLaw, #FitnessLaw, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Good Samaritan, Samaritan, First Aid, Playground, Kids, Principal, Schools, Rules, Regulations, Laws,

WordPress Tags: Rules,laws,behavior,district,student,Kids,article,Here,principle,Fewer,playground,Students,Incidents,vandalism,environment,bike,hell,parents,fact,classroom,Children,boundaries,McLachlan,self,Adults,Wait,prisons,limitations,Read,competition,person,pals,cotton,wool,century,resilience,imaginations,statement,perspective,People,money,Kiwi,Zealanders,health,victims,accident,Zealand,injury,concepts,Ideas,policies,Return,Some,example,Leave,Twitter,LinkedIn,Recreation,Edit,Email,Google,RecreationLaw,Facebook,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,James,Moss,Authorrank,author,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,Tourism,AdventureTourism,RiskManagement,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,Camps,YouthCamps,Areas,Negligence,SkiLaw,Outside,AttorneyatLaw,RecLaw,RecLawBlog,RecreationLawBlog,HumanPoweredRecreation,Colorado,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Challenge,Course,Ropes,Line,Rock,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,Samaritan,Principal,Schools,Regulations

 


State laws that affect the relationship between a manufacturer and a commissioned independent sales representative

You need to make sure you understand the law if you are a manufacturer or an independent sales representative. For this chart, the following definitions shall apply.

 

Referenced in a Statute as:

Referred to Here as:

Manufacturer, Principal or Employer

Mfg.

Commissioned Sales Person, Wholesale Sales Representative, Sales Representative, Employee (Iowa)

Rep

Contract

K

The Headings used are defined or explained as:

State: This is the state where the law is applicable. Most of the statutes, however, say that a rep can sue for unpaid commissions in this state for money owed by the manufacturer in other states. Eleven states require a written contract between the Mfg. and the Rep. Three states probably require a written contract between a Mfg. and Rep. All states say that a request to pay a person a commission for a sale is a contract.

Statute Name & Number: This is the name of the statute and number of the statute. This is always linked to the statute.

K Required: This means the burden is on the Manufacturer to create a written contract. Many of the statutes require not only a signature of both parties but proof in the form of a receipt that the rep has received a copy of the contract.

Written K Controls (except non-payment issues): If there is a dispute or the written contract is different from the statute the written contract controls the payment of commissions upon termination.

Other K Requirements: Any special or unique issues in the statute that may be of importance.

Pay upon Termination: This is what the statute requires as far as commissions paid upon termination of the contract with the Rep.

Damages: If the Rep is not paid as per the contract or the statute, this sets forth the damages that a rep can recover for non-payment. Most states this is a factor of the commissions owed, which can be as much as four times the commissions owed. Iowa, Michigan, Minnesota and Missouri have more complicated ways of determining damages based upon the time until paid or other ways to calculate the damages.

Most states allow a rep, if successful in a suit to recover unpaid commission’s damages in excess of the commissions owed. In several cases that amount totals four times the commissions owed. If the rep is successful in recovering damages, the rep can also recover attorney fees and court costs.

Eight states allow the Mfg. to recover attorney fees and court costs if the lawsuit filed by the Rep was frivolous. Frivolous in a legal context means there was no basis for the suit. Have a claim and losing it for some reason, is not frivolous.

Most states require commissions that were earned but not due until after the termination of the Contact between the Mfg., and the Rep must be paid to the Rep.

Court Costs & Atty Fees: Either the Rep or in a few cases, the Prevailing party (winner) can recover court costs and attorney’s fees if they successfully sue for unpaid commissions.

Suit brought in a state of Rep Choice: This statute states that even though the Mfg. may not have a business location within the state, which would normally be needed to establish venue and jurisdiction over the manufacturer, the statute provides the necessary venue and jurisdiction. That means the manufacturer can be brought to suit in that state.

K can waive the statute: This means that a contract between the Rep and the Mfg. cannot waive parts of the statute, specifically the requirement on how commissions are to be paid on termination, damages, attorney fees and costs and whether and jurisdiction and venue are established.

Misc.: More unique or important sections of the statute you should know about.

 

This information is here as a starting point. Contact your attorney for additional information.

Click here to download a copy of this chart

27 state laws and short interpretations are listed below.

State Statute Name & Number K Required Written K Controls (except non-payment issues) Other K Requirements Pay upon Termination Damages Court Costs & Atty Fees Suit brought in state of Rep Choice K can waive statute Misc
Alabama Alabama Code Annotated § 8-24-1 Maybe§ 8-24-2 Yes§ 8-24-2 Contract must set forth how commission calculated and to be paid. Mft must provide copy of contract to rep§ 44-1798.01 30 Days after termination30 Days post termination§ 8-24-2(c) Three times damages§ 8-24-3 Reasonable Attorney fees and Costs§ 8-24-3 Yes§ 8-24-4 No§ 8-24-5 Rep can bring all claims against mfg in this action§ 8-24-5
Arizona Arizona Revised Statutes § 44-1798.01 Yes§ 44-1798.01 A Rep must receive a signed copy of the contract and sign a receipt acknowledging receipt of signed copy§ 44-1798.01 B Paid within 30 days§ 44-1798.02 A14 days on commissions due after termination§ 44-1798.02 B Three times the unpaid commissions owed§ 44-1798.02 C Reasonable attorney fees and costs§ 44-1798.02 D Final Settlement null & void unless paid in full§ 44-1798.02 F
Arkansas Arkansas Code of 1987
4-70-301
Yes4-70-302(a) Method of computation and payment must be in written contract4-70-302(a)Rep must receive copy of contract 4-70-302(b) If not written contract, all commissions must be paid within 30 days after termination4-70-303 3 times damages4-70-306 Reasonable attorney fees and costs4-70-306 Yes4-70-302(c)4-70-304 Waiver of statute is void4-70-305
California California Codes Annotated § 1738.10Independent Wholesale Sales Representatives Contractual Relations Act of 1990§ 1738.11 Yes§ 1738.13(a) Commission Rate, Payment dates, Territory, Territory Exceptions, ChargebacksRep must be given a copy of the contract, sign it and sign a receipt acknowledging receipt of the signed contract§ 1738.13(b) Treble DamagesFailure to pay or Failure to have written contract§ 1738.15 The Prevailing Party can recover Reasonable Attorney Fees & Costs§ 1738.16 Yes§ 1738.14 No§ 1738.13(e) Rep must receive written info of all orders, customer name and invoice numberCommission rate on each order§ 1738.13(c)
Colorado Colorado Revised Statutes 12-66-101 Probably§ 12-66-103 Treble damages12-66-103(1) Prevailing Party receives Reasonable attorney fees and costs Yes12-66-102
Illinois Sales Representative Act. Illinois Compiled Statutes Annotated § 820 ILCS 120/0.01. 13 days after termination and 13 days if commissions become payable after termination§ 820 ILCS 120/2 Exemplary damages of 3 times commissions owed§ 820 ILCS 120/3 Reasonable attorney fees and court costs to rep§ 820 ILCS 120/3 No§ 820 ILCS 120/2
Indiana Indiana Statutes Annotated 24-4-7-0.1 Must be paid within 14 days24-4-7-5(a) Exemplary Damages Three times the commissions owed24-4-7-5(b) If exemplary damages awarded, the sales rep receives reasonable attorney fees and costs24-4-7-5(c)If suit is frivolous, the mfg can receive reasonable attorney fees and costs 24-4-7-5(c) Yes24-4-7-6 No24-4-7-8 If you make an offer to pay commissions you cannot revoke the offer once the commissions are earned 24-4-7-7
Iowa Iowa Wage Payment Collection Law
Iowa Code 91A.1
5% per day for every day not paid91A.2 6 Yes if intentionally failed to pay91A.8 Only disputed amounts can be withheld, all non-disputed amounts of commissions must be paid91A.7
Louisiana Louisiana Revised Statutes § 51:441 Yes§ 51:442 A written contract supersedes statute on payment of wages§ 51:442 Rep must receive a copy of the contract§ 51:442 Per the contract or On the 30th working day after termination§ 51:443 Treble damages§ 51:444 Rep’s Attorney fees§ 51:444 Yes§ 51:445 A§ 51:445 C No§ 51:445 B Sales Rep can sue for all money owed under this statute.Statute does not prohibit other seeking other forms of relief§ 51:445 D
Maine Maine Revised Statutes Annotated § 1341 Unless otherwise in contract requires 14 days’ notice to terminate§ 1342 Payment within 30 days of termination§ 1343 Exemplary damages of 3 times commissions owed§ 1344 1 Reasonable attorney fees and costs§ 1344 1 Yes§ 1344 4 Yes§ 1343 If action was frivolous mfg can recover actual attorney fees and costs§ 1344 2
Maryland Annotated Code of Maryland
§ 3-601
Commissions must be paid within 45 days of termination§ 3-604 Can recover up to 3 times the commissions due§ 3-605(a)(1) Reasonable attorney fees and costs§ 3-605(b) Yes§ 3-606 Law cannot be waived§ 3-603 Rep must give mfg 10 days’
Massachusetts Annotated Laws of Massachusetts
Chpt 104 § 7
YesChpt 104 § 8 Commissions must be paid within 14 days of terminationChpt 104 § 8Commissions that come due after termination must be paid within 14 daysChpt 104 § 8 Willfully or knowingly fails to pay, rep can recover an additional 3 times the amount dueChpt 104 § 9 Rep can recover reasonable attorney fees and court costsChpt 104 § 9 Yes104 § 9 NoChpt 104 § 9
Michigan Michigan Compiled Laws § 600.2961 YesSec. 2961(e)(2) Commissions must be paid within 45 days of termination§ 600.2961(e)(4) Actual damages plus 2 times amount of commissions or $100K or whatever is less§ 600.2961(e)(5)(b) Rep can recover reasonable attorney fees and costs§ 600.2961(e)(5) No§ 600.2961(e)(8)
Minnesota Minnesota Statutes 181.13 Yes§ 407.912 3 days after termination181.145 Subd 2 Penalty of 1/15 per day not to exceed 15 days181.145 Subd 3 Yes181.171 Subd 3 Sales made before termination must be paid after termination181.145 Subd 5
Missouri Missouri § 407.911 Yes§ 407.912 Within 30 days of termination§ 407.912 Based on the time due till paid§ 407.913 Reasonable attorney fees and costs§ 407.913 Yes§ 407.914 No§ 407.915 Rep to be paid on commissions earned before termination but not due until after termination§ 407.912 2
Nebraska Nebraska Wage Payment and Collection Act Nebraska Revised Statutes Annotated § 48-1229 30 days after termination§ 48-1231(1) Court Costs and attorney fees of not less than 25% of damages§ 48-1231(1) Damages are increased if case appealed§ 48-1231(1)
New Hampshire Sales Representatives and Post-Termination Commissions New Hampshire Revised Statutes Annotated 339-E:1 Yes339-E:2 Commissions must be paid within 45 days of termination339-E:2 Exemplary damages of 3 times commission339-E:3 Reasonable attorney fees and costs339-E:3 Yes339-E:4 No339-E:2 & 339-E:6 Commissions must be paid on orders before termination§ 2A:61A-2If Sales Rep brings frivolous suit mfg. can recover attorney fees§ 2A:61A-3
New Jersey New Jersey Annotated Statutes
§ 2A:61A-1.
Must be paid within 30 days§ 2A:61A-2 Exemplary damages of 3 times amount of commissions owed§ 2A:61A-3 Actual and reasonable attorney fees and costs§ 2A:61A-3 Yes§ 2A:61A-5 No§ 2A:61A-6
New York New York Consolidated Laws
§ 190
Yes§ 191-b 1 Yes, K must be signed by both parties and kept on file at mfg. for 3 years§ 191 b Must be paid within 5 business days§ 191-c 1 Double damages§ 191-c 3 Prevailing party receives reasonable attorney fees and costs§ 191-c 3 Commissions must be paid at least monthly§ 191 cCommissions earned after termination must be paid§ 191-a (b)
North Carolina General Statutes of North Carolina § 66-190 Yes§ 66-190.1 30 days after termination unless rep commits malfeasance§ 66-191 2 times damages§ 66-192(a) Attorney fees actually and reasonably incurred and court costs§ 66-192(c) Yes§ 66-192(c) No§ 66-193 Commissions that come due after termination must be paid within 15 days§ 66-191
Oklahoma Sales Representatives Recognition Act Oklahoma Statutes Annotated § 675 Yes§ 677 1 14 days after termination14 days on commissions that come due after termination§ 678 A Prevailing party reasonable attorney fees and costs§ 678 B Yes§ 679 A No§ 679 B Rep can recover all claims in OK case against mfg§ 679 C
Pennsylvania Commissioned Sales Representatives Pennsylvania Statutes Annotated § 1471 Yes§ 1472 Yes§ 1475.1 14 days after termination§ 147314 days on commissions earned after termination§ 1474 2 times the commissions due§ 1475(a)(1) Cost of the suit and reasonable attorney fees§ 1475(a)(2) No§ 1476 If case is frivolous then mfg can recover reasonable attorney fees and costs§ 1475(b)
South Carolina Payment Of Post-Termination Claims To Sales Representatives South Carolina Code of Laws § 39-65-10 Seems to be.§ 39-65-20 Yes§ 39-65-20 Paid as terms of the contract§ 39-65-20 Commissions due plus 3 times damages§ 39-65-30(1) Actually and reasonably incurred attorney fees and court costs§ 39-65-30(2) Yes§ 39-65-50 No§ 39-65-70 If the suit brought by the Rep is frivolous the mfg may recover attorney fees and costs§ 39-65-40Rep may bring all actions against mfg in SC§ 39-65-60
Tennessee Tennessee Code Annotated § 47-50-114 Yes47-50-114 (b) (1) Yes§ 47-50-114(b)(1) 14 days after termination§ 47-50-114(b)(c) Mfg acting in bad faith liable for exemplary damages of treble the amount of commissions§ 47-50-114(d) Reasonable attorney’s fees and court costs§ 47-50-114(d) Yes§ 47-50-114(e) No§ 47-50-114(f) Commissions earned after termination must be paid within 14 days§ 47-50-114(b)(c)If action brought by Rep is frivolous mfg can recover attorney fees and court costs47-50-114(d)
Virginia Code of Virginia § 59.1-455 Yes§ 59.1-456 Yes§ 59.1-457 Per contract but not later than 30 days§ 59.1-457 No§ 59.1-458 Post termination commissions must be paid within 30 days§ 59.1-457
Washington Annotated Revised Code of Washington §49.48.150 Yes§49.48.160(1) Yes§49.48.160(1) Per contract but no later than 30 days§49.48.160(3) Yes§49.48.180 No§49.48.160(1)
§49.48.190
All commissions including commissions earned by not due must be paid upon termination§49.48.160
Wisconsin Wisconsin Statute § 134.93 Yes§ 134.93(3) Due upon termination§ 134.93(4) Exemplary damages 200% of the commission owed§ 134.93(5) 90 days written notice of termination must be given to rep§ 134.93(3)

If you are a manufacturer, distributor or importer hiring independent reps, make sure you have a contract that protects you from being sued in 27 other states.

If you are a rep, insist on a contract with every manufacturer you represent.

Either way, you both will be better off.

What do you think? Leave a comment.

If you like this let your friends know or post it on FaceBook, Twitter or LinkedIn

Copyright 2013 Recreation Law (720) Edit Law

Email: jim@rec-law.us

Twitter: RecreationLaw

Facebook: Rec.Law.Now

Facebook Page: Outdoor Recreation & Adventure Travel Law

Blog: www.recreation-law.com

Mobile Site: http://m.recreation-law.com

#RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #Ski.Law, #Outside.Law, #Recreation.Law, #Recreation-Law.com, #Outdoor Law, #Recreation Law, #Outdoor Recreation Law, #Adventure Travel Law, #law, #Travel Law, #Jim Moss, #James H. Moss, #Attorney at Law, #Tourism, #Adventure Tourism, #Rec-Law, #Rec-Law Blog, #Recreation Law, #Recreation Law Blog, #Risk Management, #Human Powered, #Human Powered Recreation,# Cycling Law, #Bicycling Law, #Fitness Law, #Recreation-Law.com, #Backpacking, #Hiking, #Mountaineering, #Ice Climbing, #Rock Climbing, #Ropes Course, #Challenge Course, #Summer Camp, #Camps, #Youth Camps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, #RecreationLaw, #@RecreationLaw, #Cycling.Law #Fitness.Law, #SkiLaw, #Outside.Law, #Recreation.Law, #RecreationLaw.com, #OutdoorLaw, #RecreationLaw, #OutdoorRecreationLaw, #AdventureTravelLaw, #Law, #TravelLaw, #JimMoss, #JamesHMoss, #AttorneyatLaw, #Tourism, #AdventureTourism, #RecLaw, #RecLawBlog, #RecreationLawBlog, #RiskManagement, #HumanPowered, #HumanPoweredRecreation,# CyclingLaw, #BicyclingLaw, #FitnessLaw, #RecreationLaw.com, #Backpacking, #Hiking, #Mountaineering, #IceClimbing, #RockClimbing, #RopesCourse, #ChallengeCourse, #SummerCamp, #Camps, #YouthCamps, #Skiing, #Ski Areas, #Negligence, #Snowboarding, sport and recreation laws, ski law, cycling law, Colorado law, law for recreation and sport managers, bicycling and the law, cycling and the law, ski helmet law, skiers code, skiing accidents, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, Recreational Lawyer, Fitness Lawyer, Rec Lawyer, Challenge Course Lawyer, Ropes Course Lawyer, Zip Line Lawyer, Rock Climbing Lawyer, Adventure Travel Lawyer, Outside Lawyer, Recreation Lawyer, Ski Lawyer, Paddlesports Lawyer, Cycling Lawyer, #RecreationalLawyer, #FitnessLawyer, #RecLawyer, #ChallengeCourseLawyer, #RopesCourseLawyer, #ZipLineLawyer, #RockClimbingLawyer, #AdventureTravelLawyer, #OutsideLawyer, Rep, Independent Rep, Sales Rep, Independent Sales Rep. Independent Sales Representative, Manufacturer, Principal, Contract.

WordPress Tags: State,laws,relationship,manufacturer,sales,definitions,Statute,Here,Principal,Employer,Person,Wholesale,Representative,Employee,Iowa,Contract,Headings,Most,statutes,money,Eleven,Three,sale,Name,Number,Many,signature,receipt,Written,Controls,payment,termination,Requirements,importance,Damages,factor,Michigan,Minnesota,Missouri,attorney,lawsuit,Frivolous,context,basis,Contact,Court,Costs,Fees,Either,winner,Suit,Choice,location,venue,jurisdiction,requirement,Misc,information,interpretations,Alabama,Code,Maybe,Reasonable,action,Arizona,Paid,Final,Settlement,Arkansas,Method,computation,Waiver,California,Codes,Independent,Contractual,Relations,Commission,Rate,Territory,Exceptions,Chargebacks,Treble,Failure,info,customer,Colorado,Illinois,ILCS,Exemplary,Indiana,Wage,Collection,amounts,Louisiana,relief,Maine,Maryland,Commissions,Massachusetts,Chpt,Actual,Subd,Within,Nebraska,Hampshire,Post,Jersey,York,Double,North,Carolina,General,Oklahoma,Recognition,Pennsylvania,Cost,South,Claims,Seems,Tennessee,faith,Virginia,Washington,Wisconsin,distributor,importer,reps,Leave,FaceBook,Twitter,LinkedIn,Recreation,Edit,Email,RecreationLaw,Page,Outdoor,Adventure,Travel,Blog,Mobile,Site,Outside,Moss,James,Tourism,Risk,Management,Human,Rock,Ropes,Course,Challenge,Summer,Camp,Camps,Youth,Areas,Negligence,SkiLaw,OutdoorLaw,OutdoorRecreationLaw,AdventureTravelLaw,TravelLaw,JimMoss,JamesHMoss,AttorneyatLaw,AdventureTourism,RecLaw,RecLawBlog,RecreationLawBlog,RiskManagement,HumanPoweredRecreation,CyclingLaw,BicyclingLaw,FitnessLaw,RopesCourse,ChallengeCourse,SummerCamp,YouthCamps,managers,helmet,accidents,Lawyer,Paddlesports,Recreational,Line,RecreationalLawyer,FitnessLawyer,RecLawyer,ChallengeCourseLawyer,RopesCourseLawyer,ZipLineLawyer,RockClimbingLawyer,AdventureTravelLawyer,OutsideLawyer,upon,four