## Facts

- In underlying litigation, a law firm filed a third-party complaint against several individuals (the Kerstens) and hired a private process server, Richard Alan James, to serve process.
- James filed affidavits stating he had personally served the Kerstens on specified dates; the affidavits were false and the Kerstens were not served.
- Because the Kerstens did not respond, the court entered an order of default based on the firm’s request relying on the affidavits.
- The Kerstens later succeeded in vacating the default and ultimately obtained judgment in their favor in the underlying case.
- The Kerstens then sued the law firm, the process server, and the firm’s client, seeking damages for emotional distress and costs incurred in responding to the default; as to the law firm, they alleged vicarious liability for the process server’s misconduct.
- Undisputed relationship facts included: no contract; no obligation for the server to accept assignments; payment by flat fee per job with no payroll deductions; server maintained his own office, offered services to the public, and supplied his own forms and notary; periodic meetings occurred to exchange assignments and report completion, but the firm did not direct the method or day-to-day manner of service.

## Issues

1. Whether the law firm could be held vicariously liable for the process server’s false affidavits of service under respondeat superior or agency principles.
2. Whether the undisputed facts created a triable issue that the firm had the right to control the “manner and means” of the process server’s work, making him a servant rather than an independent contractor.

## Decision

- The Maryland Court of Special Appeals affirmed summary judgment for the law firm.
- The court held the process server was an independent contractor as a matter of undisputed fact.
- The firm’s coordination with the server (assigning jobs and receiving proof of service) did not amount to control over the manner and means of accomplishing service.
- Because the firm lacked the degree of control characteristic of a master–servant relationship, vicarious liability did not attach for the server’s intentional misconduct.

## Legal Principles

- Respondeat superior generally imposes vicarious liability only for torts committed by a servant/employee acting within the scope of employment, not by an independent contractor.
- The central test is whether the alleged principal has the right to control, and does control, the manner and means of the work (not merely the result).
- Factors supporting independent-contractor status include payment by the job, lack of payroll withholding, independent office and materials, availability to the public, and freedom to accept or reject assignments.
- Ordinary oversight of an outside service provider—identifying tasks and requiring completion evidence—does not by itself establish the requisite control for vicarious liability.
- Summary judgment is appropriate when the material facts concerning the control relationship are undisputed and, as a matter of law, establish independent-contractor status.

## Conclusion

The court concluded that a law firm that hires a private process server is not vicariously liable for the server’s false affidavits of service where the firm does not control the manner and means of serving process and the server operates as an independent contractor.


Kersten v. Van Grack, Axelson & Williamowsky, P.C., 608 A.2d 1270 (Md. Ct. Spec. App. 1992)