WPI 50.01 Agent and Principal—Definition

Use bracketed material as applicable. For the scope of this instruction, see WPI 50.00 (Introduction).

Use this instruction only when there is an issue as to the existence of agency. Use WPI 50.03 (Act of Agent is Act of Principal) with this instruction. If the issue is whether the agent was acting within the scope of authority, use WPI 50.02 (Agent—Scope of Authority Defined). If the issue is whether a person is an agent or independent contractor, use WPI 50.11 (Independent Contractor—Definition) and 50.11.01 (Distinguishing Between Agents and Independent Contractors) along with this instruction.

Characteristics of agency relationship. The essential elements of an agency relationship are control over the manner in which the work is performed and consent. Yong Tao v. Heng Bin Li, 140 Wn.App. 825, 831, 166 P.3d 1263 (2007); O'Brien v. Hafer, 122 Wn.App. 279, 283, 93 P.3d 930 (2004). The definitions of agent and employee have been approved in many Washington cases. See, e.g., CKP, Inc. v. GRS Constr. Co., 63 Wn.App. 601, 607–08, 821 P.2d 63 (1991) (definition of agent); Chapman v. Black, 49 Wn.App. 94, 98–99, 741 P.2d 998 (1987) (definition of employee); Hollingbery v. Dunn, 68 Wn.2d 75, 79–81, 411 P.2d 431 (1966) (definition of employee).

In the absence of actual exercise of control, a principal-agent relationship exists if the principal has the right of control over the manner and means by which the work is accomplished. Chapman, 49 Wn.App. at 99 (the right of control is the “crucial factor”); O'Brien, 122 Wn.App. at 283 (same). For a more detailed discussion of the significance of the right to control in distinguishing between agents and independent contractors, see Massey v. Tube Art Display, Inc., 15 Wn.App. 782, 786–87, 551 P.2d 1387 (1976); McLean v. St. Regis Paper Co., 6 Wn.App. 727, 729–30, 496 P.2d 571 (1972); Comment to WPI 50.11 (Independent Contractor).

Both the principal and the agent must consent to the relationship. O'Brien, 122 Wn.App. at 283; Stansfield v. Douglas Cnty., 107 Wn.App. 1, 17, 27 P.3d 205 (2001).

An agency may be express or implied. See King v. Riveland, 125 Wn.2d 500, 507, 886 P.2d 160 (1994); Barker v. Skagit Speedway, Inc., 119 Wn.App. 807, 814, 82 P.3d 244 (2003); Stansfield, 107 Wn.App. at 17–18.

An agent need not be paid for services in order to qualify as an agent. Coombs v. R. D. Bodle Co., 33 Wn.2d 280, 285, 205 P.2d 888 (1949); Baxter v. Morningside, Inc., 10 Wn.App. 893, 896–97, 521 P.2d 946 (1974).

Factual issues. Whether an agency relationship exists depends on a variety of factual issues. See Yong, 140 Wn.App. at 831 (“The existence of agency always depends on the facts and circumstances of each case.”); Stansfield, 107 Wn.App. at 18; see also WPI 50.11.01 (Distinguishing Between Agents and Independent Contractors) (list of ten factors to consider).

If there are conflicts in the evidence whether the relationship between the parties was a principal-agent relationship or an independent contractor relationship, or if the evidence is reasonably susceptible of more than one inference, the question is one of fact for the jury. If the evidence is undisputed, the question is one of law and left to the court for its determination. See Chapman, 49 Wn.App. at 99 (trial court erred in granting a motion for judgment N.O.V. on the issue of agency and control because the evidence was in conflict); O'Brien, 122 Wn.App. at 284.

Loaned employees. In Jones v. Halvorson-Berg, 69 Wn.App. 117, 121–23, 847 P.2d 945 (1993), the court discussed in detail the factors useful to determine if an employee is “loaned” by one employer to another. An employee may become the loaned agent of another by submitting to the direction and control of the other with respect to a particular transaction or piece of work. However, unless it appears that the employee has expressly, or by implication, consented to the transfer of his or her services to the new employer, and unless the lender surrenders and the borrower assumes the power of supervision and control, the employee has not become a loaned agent.

For a more detailed discussion of issues relating to agency relationships, see DeWolf & Allen, 16 Washington Practice, Tort Law & Practice §§ 4.10–.17 (5th ed.).