Emergency One, Inc. (EO), makes fire and rescue vehicles. Western Fire Truck, Inc., contracted with EO to be its exclusive dealer in Colorado and Wyoming through December 2003. James Costello, a Western salesperson, was authorized to order EO vehicles for his customers. Without informing Western, Costello e-mailed EO about Western’s difficulties in obtaining cash to fund its operations. He asked about the viability of Western’s contract and his possible employment with EO. On EO’s request, and in disregard of Western’s instructions, Costello sent some payments for EO vehicles directly to EO. In addition, Costello, with EO’s help, sent a competing bid to a potential Western customer. EO’s representative e-mailed Costello, “You have my permission to kick [Western’s] ass.” In April 2002, EO terminated its contract with Western, which, after reviewing Costello’s e-mail, fired Costello. Western filed a suit in a Colorado state court against Costello and EO, alleging, among other things, that Costello breached his duty as an agent and that EO aided and abetted the breach.
1. Was there an agency relationship between Western and Costello? Western required monthly reports from its sales staff, but Costello did not report regularly. Does this indicate that Costello was not Western’s agent? In determining whether an agency relationship exists, is the right to control or the fact of control more important? Explain.
2. Did Costello owe Western a duty? If so, what was the duty? Did Costello breach it? How?
3. A Colorado state statute allows a court to award punitive damages in “circumstances of fraud, malice, or willful and wanton conduct.” Did any of these circumstances exist in this case? Should punitive damages be assessed against either defendant? Why or why not?