Kersten v. Van Grack, Axelson & Williamowsky, P.C.

Charlene Baden (defendant) retained Van Grack, Axelson & Williamowsky, P.C. (VGA&W) (defendant) to represent her in a lawsuit. VGA&W filed a third-party complaint on Baden’s behalf against Carol and Peggy Kersten and Lucille and Jeffrey Schneyer (collectively, the Kerstens) (plaintiffs). VGA&W hired Richard James (defendant) to serve process on the Kerstens. James had been serving process for VGA&W for 18 months. James met with a VGA&W paralegal weekly at irregular intervals to report on completed assignments and receive new ones and occasionally with the attorney in charge of the case for which he was serving process. James did not have a contract with VGA&W, was under no obligation to accept VGA&W assignments, received a flat fee for each assignment without payroll deductions, maintained his own offices, made his services available to the public, and provided his own forms and notary for affidavits of service. In the Baden case, James submitted false affidavits stating that he had personally served the Kerstens. In fact, James never served the Kerstens. Because the Kerstens failed to respond to the third-party complaint, the court entered an order of default against them. The Kerstens sued VGA&W, Baden, and James for the severe emotional distress the Kerstens suffered upon learning of the default judgment. The complaint alleged that VGA&W was vicariously liable for James’s bad acts. The court granted summary judgment to VGA&W. The Kerstens appealed.