2016 WL 1224224 (Mash. Pequot Tribal Ct.)
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Mashantucket Pequot Tribal Court.
MASHANTUCKET PEQUOT GAMING ENTERPRISE.
March 17, 2016.
MEMORANDUM OF DECISION
EDWARD B. O’CONNELL, J.
*1 By a one-count complaint dated June 6, 2014, the plaintiff, John Rogers, brought a negligence suit against the defendant, the Mashantucket Pequot Gaming Enterprise (“Gaming Enterprise”), for injuries stemming from a slip and fall incident in a hotel bathroom at the MGM Grand Hotel at Foxwoods Resort and Casino, which is operated by the Gaming Enterprise. The plaintiff alleges that on July 6, 2013, he slipped and fell in the bathroom of his hotel room due to an accumulation of water that resulted from missing trim or defective seal on the bottom of the shower door. By way of an answer with amended special defenses, the Gaming Enterprise denied the factual allegations contained in the complaint and asserted special defenses of contributory negligence, accord and satisfaction, and release of claims. At trial, most of the testimony focused on the Gaming Enterprise’s special defenses relating to a release agreement presented to and signed by the plaintiff’s wife on July 8, 2013.
The following facts are undisputed. The plaintiff and his wife, Bernadette Rogers, stayed at the MGM Grand Hotel for their honeymoon from July 6, 2013 to July 8, 2013. The bathroom shower door was missing trim or had a defective seal on the bottom of the door, which allowed water to escape from the shower onto the tile floor. The plaintiff claims that he slipped on the wet tile floor of the bathroom on July 6, 2013 resulting in injury to his lower back and right leg.
After the slip and fall, the plaintiff’s wife contacted the hotel front desk to request a different hotel room. However, because it was 4th of July weekend, there were not any other rooms available for them. The plaintiff resorted to repeatedly calling housekeeping to send fresh towels to absorb water that leaked out of the shower after each use. After further complaints, the plaintiff’s wife contacted the Gaming Enterprise’s Risk Management Department to address their concerns. Mrs. Rogers explained to Risk Management her husband’s slip and fall, the persistent water leaks, and the failure to address their complaints were contributing to a very unsatisfactory honeymoon stay at the hotel. In response, over the course of several phone calls between Mrs. Rogers and Ms. Corinna Toscano of the Risk Management Department, the Gaming Enterprise offered to “comp” the plaintiff and his wife’s three night hotel stay and provide a $120 restaurant voucher. Ms. Toscano informed Mrs. Rogers that she would visit their hotel room to obtain a signature for a release agreement to implement the comp.
As discussed in more detail below, Ms. Toscano visited the hotel room and obtained a signature. The plaintiff did not sign the release, but instead his wife did. Mrs. Rogers signed the release “Bernadette Kureczka” using her maiden name. The key terms of the release were summarized in the heading of the document, which provided:
RELEASE OF ALL CLAIMS AND AGREEMENT TO INDEMNIFY FOR AND IN CONSIDERATION OF
THE ISSUANCE OF A COMP
3 NIGHT’S STAY AT MGM GRAND at
FOXWOODS (7/6–8/2013) & $120.00 DINNER
Redeemable to: John Rogers
*2 Before addressing liability and damages associated with the slip and fall, the Court must address the threshold issue of whether the “release of all claims” signed by the plaintiff’s wife validly released any claim the plaintiff may have against the Gaming Enterprise for the injury resulting from the slip and fall.
Previously in this case, the issue of whether an agency relationship existed between the plaintiff and his wife that would bind the plaintiff to the terms of the release agreement was addressed on the Gaming Enterprise’s motion for summary judgment. This Court denied that motion on the grounds that, in “[v]iewing the evidence in the light most favorable to the Plaintiff and keeping in mind that the establishment of an agency relationship is ‘typically a question of fact,’ ... the Court finds that the Toscano affidavit does not by itself conclusively manifest an understanding between the Plaintiff and his wife that the Plaintiff was in control of this transaction. Because a genuine issue of fact exists, it must be left to a later determination after a full hearing.” Rogers v. Mashantucket Pequot Gaming Enterprise, 6 Mash.Rep. 259, 262 (2015).
Having heard and reviewed the parties’ trial testimony, arguments, and evidence and now not being restricted to viewing the evidence in the light most favorable to the plaintiff, the Court finds that the plaintiff’s wife, Bernadette Rogers, acted with apparent authority to bind the plaintiff to the terms of the release agreement.
A. Apparent Authority
The Gaming Enterprise has pled the special defenses of accord and satisfaction and release of claims. The basis of both special defenses is an allegedly valid and enforceable release agreement signed by a third party, the plaintiff’s wife. This factual scenario implicates agency law. In particular, the validity of an agreement signed by a third party implicates actual and apparent authority, a subset of agency law.
This Court has had limited opportunity to address agency law. Accordingly, a brief overview of basic principles of agency law is instructive. “An agency relationship is created when, by express or implied contract or by law, one party (the agent) may act on behalf of another party (the principal) and bind that other party by words or actions. The three elements required to show the existence of an agency relationship include: (1) manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking.” Mashantucket Pequot Tribal Nation v. Kenneth Castellucci & Assoc., Inc., 4 Mash.Rep. 21, 23, 5 Mash. 227 (2002). The Gaming Enterprise has failed to present sufficient evidence to show that an agency relationship existed between the plaintiff and his wife.
*3 The foregoing, however, is not dispositive of the Gaming Enterprise’s special defenses of release and accord and satisfaction. The Court must also address the related, but different issue of whether an agreement signed by a non-agent is nevertheless binding on the parties under the doctrine of apparent authority.
It is not necessary to find that an agency relationship existed between the plaintiff and his wife in order to find that her signature bound the plaintiff to the terms of the release. See Beckenstein v. Potter & Carrier, Inc., 191 Conn. 120, 140, 464 A.2d 6 (1983) (determination of apparent authority not dependent on a finding of an agency relationship). A principal can be bound by the actions of another—whether or not an agent—if apparent authority exists.1 “Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency § 2.03 (2006) (emphasis added). “A party can be held liable to a third party if its actions caused a third party to believe that there was a principal and agent relationship between it and another.” L & V Contractors, LLC v. Heritage Warranty Ins. Risk Retention Group, Inc., 136 Conn.App. 662, 669, 47 A.3d 887 (2012).
In other words, “[a]pparent authority is derived not from the acts of the agent but from the deliberate or inadvertent acts of the principal. Apparent authority has two elements. First, it must appear from the acts of the principal that the principal held the agent out as possessing sufficient authority to embrace that act in question, or knowingly permitted him to act as having such authority.... Second, the party seeking to bind the principal must have acted in good faith reliance on that appearance of authority.” Tirreno v. The Hartford, 161 Conn.App. 678, 685, 129 A.3d 735 (2015) (citing L & v. Contractors, 136 Conn.App. at 669, 47 A.3d 887).
“A person manifests assent or intention through written or spoken words or other conduct.” Restatement (Third) of Agency § 1.03. “A manifestation is conduct by a person, observable by others, that expresses meaning. It is a broader concept than communication. The relevant state of mind is that of the person who observes or otherwise learns of the manifestation.... Silence may constitute a manifestation when, in light of all the circumstances, a reasonable person would express dissent to the inference that other persons will draw from silence. Failure then to express dissent will be taken as a manifestation of affirmance.” Id. § 1.03(b); see also Ackerman v. Sobol Family Partnership, LLP, 298 Conn. 495, 511–12, 4 A.3d 288 (2010) (relying on Restatement of Agency for guidance on silence as a manifestation of assent). “A principal’s inaction creates apparent authority when it provides a basis for a third party reasonably to believe the principal intentionally acquiesces in the agent’s representations or actions.” Id. § 3.03(b).
*4“The issue of apparent authority is one of fact, requiring the trier of fact to evaluate the conduct of the parties in light of all the surrounding circumstances.” Hogan v. Lagosz, 124 Conn.App. 602, 609, 6 A.3d 112 (2010) (citing Lettieri v. American Savings Bank, 182 Conn. 1, 9, 437 A.2d 822 (1980)). Having pled accord and satisfaction and release as special defenses, the Gaming Enterprise carries the burden of proof to show by a preponderance of the evidence that Mrs. Rogers had the authority to sign and bind the plaintiff to the terms of the release agreement.
Here, the relevant inquiry is whether it was reasonable under the circumstances for Ms. Toscano—the Gaming Enterprise’s representative—to believe, based on the manifested actions or inactions of the plaintiff, that the plaintiff’s wife had the authority to sign and legally bind the plaintiff to the terms of the release agreement. Additionally, Ms. Toscano must have acted in good faith reliance on the wife’s appearance of authority.
The plaintiff testified that he did not verbally authorize his wife to sign on his behalf to release any personal injury claim resulting from the slip and fall. The Court does not doubt the veracity of this testimony. However, this testimony is irrelevant to an analysis of apparent authority. As stated above, any manifestations the plaintiff made to his wife would bear on the formation of an agency relationship and the grant of actual authority. In determining the existence of apparent authority, the relevant focus is on the manifestations from the principal (plaintiff) to the third party (Ms. Toscano from the Gaming Enterprise), not on the manifestations from the principal (plaintiff) to the agent/actor (wife).
Since it is the interaction between the plaintiff and Ms. Toscano that matters, the critical moment in determining apparent authority occurred during the brief time that Ms. Toscano entered the plaintiff’s hotel room and obtained the signature from the wife. This was the only opportunity for Ms. Toscano to observe any manifestations made by Mr. Rogers. The parties are at odds on what exactly transpired in the hotel room between the plaintiff, Mrs. Rogers, and Ms. Toscano, but the parties do agree that this event was the only interaction between the plaintiff and any representative of the Gaming Enterprise.
It is undisputed that Ms. Toscano visited the plaintiff’s hotel sometime in the afternoon on July 8, 2013 to discuss compensation of some type for the plaintiff’s injuries resulting from the slip and fall. It is furthered undisputed that upon arrival Mrs. Rogers greeted Ms. Toscano at the door, Ms. Toscano entered the room, and Ms. Toscano then greeted the plaintiff who was lying in bed under the covers. The accounts of what happened next and how it happened differ substantially.
According to the plaintiff, after entering the room and exchanging pleasantries, Ms. Toscano proceeded to discuss the release with Mrs. Rogers only. The plaintiff claims that he was able to hear his wife and Ms. Toscano talk, but that he was unable to hear the actual words of their conversation. The plaintiff saw his wife sign a document but he was unsure if Ms. Toscano gave the document to her.
*5 Mrs. Rogers testified similarly: After entering the room and exchanging pleasantries, Ms. Toscano discussed compensation with her only. Ms. Toscano did not discuss the details of the release with the plaintiff and did not give the release to the plaintiff to read before signing it. Mrs. Rogers recalled that she did not read the document prior to signing, that there was no conversation about the document being a release, and that she does not know what a release is or what to “indemnify” means. Mrs. Rogers signed the release “Bernadette Kureczka,” using her maiden name. Mrs. Rogers describes the totality of the hotel room visit with the following testimony:
A: So [Ms. Toscano] came up to the room, she knocked on the door, I came to the door, she said hi, I’m Cory Toscano, I’m from Risk Management, we just spoke on the phone, I said yes, I didn’t expect you to come up so quickly. She came in, she put the paper onto the desk and she had her hand on it, and she said this is a compensation for three nights’ stay and $120 for the restaurant. She said I need you to sign this.
Q: Any other conversation that she had with you about signing that document?
(Trial Tr., June 25, 2015, p. 55.)
Ms. Toscano had a much different recollection: After entering the room and exchanging pleasantries, she proceeded to explain the terms of the release, speaking in a “back and forth” manner to both the plaintiff lying in bed and Mrs. Rogers sitting in the desk chair. Ms. Toscano testified that the conversation was directed toward the plaintiff and that she explained the general form of compensation to him, which included using the word “release.” Ms. Toscano indicated to the plaintiff that she needed a signature. Ms. Toscano testified that when she presented the release to the plaintiff for signature, he indicated with a “little shrug” to give the release to his wife. Ms. Toscano then gave the release to Mrs. Rogers for signature.
The testimony presents conflicting stories. The plaintiff and his wife describe a scenario in which the hotel room visit is brief and all verbal communication is between the wife and Ms. Toscano. On the other hand, Ms. Toscano presents a scenario in which she discusses the release to both the plaintiff and his wife and at the time of signature, the plaintiff makes a nonverbal head nod to Ms. Toscano indicating that his wife should sign the release. The Court finds that apparent authority exists under either scenario.
Under Ms. Toscano’s version of events, apparent authority would clearly be established. She testified that when she offered the release to the plaintiff for signature, the plaintiff indicated with a “little shrug” to give the release to his wife, which she then did. As discussed above, “[a]pparent authority is that semblance of authority which a principal, through his own acts or inadvertences, causes or allows third persons to believe his agent possesses.” Tomlinson v. Board of Educ. of City of Bristol, 226 Conn. 704, 734, 629 A.2d 333 (1993) (citation omitted) (emphasis added). It is reasonable for Ms. Toscano to interpret this nonverbal cue as a manifestation from the plaintiff to her that his wife had the authority to sign on his behalf. Additionally, the fact that it was the plaintiff’s wife, opposed to someone else, who had previously been communicating with Risk Management and was the one to sign the release is important. While the plaintiff’s marital status does not in itself establish an agency relationship or actual or apparent authority, it does contribute to the reasonable belief that this particular person—Mrs. Rogers, the plaintiff’s wife—would have the authority to sign on his behalf.
*6 Even under the plaintiff’s version of events, apparent authority exists. The plaintiff and his wife contend that hotel room conversation was brief, that all communication was directed to the wife, and that Ms. Toscano did not explain to the plaintiff or his wife that the document was a release. Even if this is true and even if the plaintiff did not make the disputed “little shrug” to Ms. Toscano, the plaintiff’s silence and inaction in the presence of Ms. Toscano at that time of signature reasonably supports a finding of apparent authority. The plaintiff testified that he knew someone from Risk Management was coming to his hotel room to discuss some type of compensation for his injuries. The plaintiff further testified that he saw his wife sign the release and that his wife did not commonly make financial decisions on his behalf. If the plaintiff did not intend for his wife to act on his behalf, a reasonable person would expect him to express some form of dissent when his wife undertakes to sign a document pertaining to his injuries. Despite knowing the purpose of the visit and viewing his wife sign the release, the plaintiff remained silent at that critical moment in plain view of Ms. Toscano. In the face of circumstances that fairly cried out for an objection on the part of the plaintiff, it was reasonable for Ms. Toscano to interpret the plaintiff’s silence and inaction as an affirmation that Mrs. Rogers had the authority to act on the plaintiff’s behalf in signing the release.
Additionally, there is nothing to indicate that Ms. Toscano acted in bad faith. She reasonably relied on the plaintiff’s action or inaction. The Gaming Enterprise has met its burden in showing by a preponderance of the evidence that Mrs. Rogers had apparent authority to sign and bind the plaintiff to the terms of the release agreement.
B. Accord and Satisfaction and Release of Claims
The validly signed and executed release precludes recovery based on the principles of accord and satisfaction. “Accord and satisfaction is a method of discharging a claim whereby the parties agree to give and accept something other than that which is due in settlement of the claim and to perform the agreement.” B & B Bail Bonds Agency of Connecticut, Inc. v. Bailey, 256 Conn. 209, 213, 770 A.2d 960 (2001) (citing 1 Am.Jur.2d Accord and Satisfaction § 1 (1994)). “[A] validly executed accord and satisfaction precludes a party from pursuing any action involving the original, underlying claim.” Schoonmaker v. Lawrence Brunoli, Inc., 265 Conn. 210, 277, 828 A.2d 64 (2003) (citing Bailey, 256 Conn. at 213, 770 A.2d 960) (internal quotation marks omitted). In consideration for the plaintiff’s release of all claims, the Gaming Enterprise issued a “comp” consisting of three nights stay at MGM Grand at Foxwoods from 7/6/13–7/8/13 and a $120.00 dinner voucher. The plaintiff and his wife fully utilized the comp and thereby released the Gaming Enterprise from any potential claims.
*7 For the foregoing reasons, the Court finds that the defendant has met its burden of proof in showing that Mrs. Rogers had apparent authority to sign and legally bind the plaintiff to the terms of the release agreement and that the release agreement has been fully executed. Judgment shall enter for the Gaming Enterprise.
The actions of a third party can also bind a principal if actual authority exists. “An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal’s manifestations to the agent, that the principal wishes the agent so to act.” Restatement (Third) of Agency § 2.01 (2006). Here, as with the formation of an agency relationship, there is insufficient evidence to show that Mrs. Rogers acted with actual authority in signing the release agreement.