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Parents settle with defunct business and former salesman over fatal crash
May 19th, 2008 by Dawn MeffordThe parents of a man who was killed when his car was rear-ended by a salesman who was delivering a motorcycle for his defunct former employer have settled their wrongful death claim.
The key to settlement was showing that even though the former salesman volunteered to deliver the motorcycle on behalf of an employer that had closed its doors four days earlier, an agency relationship still existed.
On Dec. 21, 2005, Kenneth Hanbeck, a former salesman for Prestige Motor Sports, delivered a motorcycle to a customer in Rolla, Mo. Hanbeck stopped for lunch with friends before returning to St. Louis. While driving on Interstate 44 in Franklin County, Hanbeck rear-ended a vehicle driven by 19-year-old Anthony Burns. Burns was killed in the wreck.
Timothy and Laurie Burns, Anthony’s parents, filed a wrongful death suit on July 12, 2006, in Franklin County, Mo. The parents alleged that Hanbeck failed to keep a careful lookout, drove too fast for the conditions and drove in a careless and reckless manner. The suit also sought to hold Prestige Motor Sports liable for Hanbeck’s alleged negligence pursuant to respondeat superior.
The defendants denied the allegations and in a motion for summary judgment Prestige Motor Sports alleged that Hanbeck was not acting as an agent, servant or employee at the time of the accident and therefore could not be held liable under the theory of respondeat superior.
In support of its argument, Prestige noted that on Dec. 17, 2005, four days before the accident, the business had closed its doors to the public and ceased business operations. Prestige argued that Hanbeck was no longer an employee and that when he did work for the company he was a salesman whose customary job duties did not include deliveries. In addition, Prestige argued, Hanbeck volunteered to deliver the motorcycle to the customer, he drove his own car and used his own trailer to make the delivery and he was not compensated for the delivery trip.
The parents, represented by Paul J. Passanante and Dawn M. Mefford of Simon Passanante, opposed the motion for summary judgment.
In the opposition to summary judgment, the testimony of Dr. Robert Cagle, the customer, was presented. He testified that he called Prestige on Dec. 10, 2005, and asked about a motorcycle he’d seen posted for sale on the Internet. That same day, Cagle drove from Rolla to St. Louis to look at the motorcycle. When Cagle announced that he had no way of transporting the bike back to Rolla and would have to come back the next week, Hanbeck told him that it was the last day Prestige would be open to the public and that Cagle would have to decide immediately whether he wanted to buy the motorcycle. After Cagle reiterated that he couldn’t buy the bike because he had no way of transporting it, Hanbeck told him that he would bring it to Cagle’s home.
On Dec. 21, Prestige’s owner and Hanbeck met at the store so that the motorcycle could be retrieved for delivery. The owner helped load the bike onto Hanbeck’s trailer. The owner also gave Hanbeck the sales contract and the key to the motorcycle and instructed him to deliver them to the customer.
Passanante and Mefford, on behalf of the parents, argued that Hanbeck and Prestige worked to complete the sale for the benefit of the employer, that the Dec. 21 delivery was fulfillment of the company’s obligations under the terms of the sales contract negotiated on Dec. 10, that the sale would not have been made unless Hanbeck had agreed to the delivery and that Prestige, not Hanbeck, sold the motorcycle.
Whether Hanbeck received compensation for the delivery was unclear. However, the parents noted that an unpaid volunteer can be a servant of the master accepting the services.
Prestige Motor’s motion for summary judgment was denied by Franklin County Circuit Judge Cynthia M. Eckelkamp on Feb. 5, 2008. On March 5, 2008, the case was settled. Without admitting liability, Prestige Motors agreed to pay the parents $475,000 and Hanbeck agreed to pay $25,000.
