Federal judge rewards Savings Bank Mutual Life Insurance Company of MA for placing illegal calls-TCPA vicarious liability gone awry

Another day, another judge rewarding The Savings Bank Mutual Life Insurance Company of Massachusetts for using illegal calls to generate business.

The case is Gonzalez v. Savings Bank Mutual Life Ins. Co. of Mass., No. EP-24-CV-00289-DB, 2025 WL 1145266 (W.D. Tex. Apr. 15, 2025). Ms. Gonzalez received a number of robocalls soliciting life insurance. The artificial or prerecorded voice said "Hi, this is Stephanie, I’m calling you from American Benefits...", even telling the caller "she was not interested and to stop calling" to no avail. Getting tired of it, Ms. Gonzalez finally impersonated her mother [probably because of age, these junk policy sellers usually hang up if the call recipient isn't at least 50 years old].

In one long call, the "American Benefits" caller connected Ms. Gonzalez to an "Elsworth Rawlings" who screened Ms. Gonzalez, and then transferred Ms. Gonzalez to a The Savings Bank Mutual Life Insurance Company of Massachusetts agent, who approved her a policy and then transferred Ms. Gonzalez back to Rawlings.

Ms. Gonzalez then sued The Savings Bank Mutual Life Insurance Company of Massachusetts for the unwanted calls, and the insurance company moved to dismiss, in large part by disclaiming any responsibility for Rawlings.

SBLI included the signed “Agreement” between itself and Rawlings as an exhibit to its Motion [to Dismiss]. Per this Agreement, SBLI appointed Rawlings to “submit applications and initial premiums for individual life insurance policies, accidental death policies and annuity contracts . . . issued by SBLI and for such other incidental purposes.” Rawlings was obligated to “[s]olicit and promptly transmit applications for policies to be issued by [SBLI].” Rawlings “was not, however, authorized to “[h]old [himself] out as an employee, partner, joint venture or associate of SBLI” or to “[h]old [himself] out as an agent or broker of SBLI in any other manner, or for any other purpose, than is specifically prescribed in” the Agreement. Rawlings was also required to “conduct [himself] so as not to affect adversely the business or reputation of SBLI” and to “comply with the laws, rules or regulations of any federal, state, or other governmental agency or body having jurisdiction over” the Agreement.

Then the court moved on down the list of theories of liability.

Direct liability

No surprisingly, the court didn't find a viable direct theory of liability but the explanation is a little weak. SBLI could be directly liable if they directly hired the calls done, even if initiated by the American Benefits telemarketer.

Plaintiff has not established direct liability. Plaintiff's First Amended Complaint fails to allege any facts to establish SBLI initiated the calls within the meaning of the TCPA. In fact, as Plaintiff's “Table A” succinctly lists, each call was ‘initiated by American Benefits because Plaintiff alleges each of the calls started with a “prerecorded message” saying “[h]i, this is Stephanie, I’m calling you from American Benefits . . .”). The Court infers the American Benefits telemarketer, not SBLI, is the initial caller.

Actual authority

Quoting from the opinion: “Actual authority . . . is created by a principal's manifestation to an agent that, as reasonably understood by the agent, expresses the principal's assent that the agent take action on the principal's behalf.”

The essential element of actual authority is the principal's control over the agent's actions. For TCPA cases, the relevant inquiry is “whether the principal controlled—or had the right to control—the ‘manner and means’ of the telemarketing campaign.”

This court pointed to Callier v. SunPath Ltd., No. EP-20-CV- 00106-FM, 2020 WL 10285659, at *3 (W.D. Tex. Aug. 10, 2020) to find against actual authority. In that case the plaintiff received a series of phone calls with prerecorded messages selling the automotive extended warranties of the defendants but the calls themselves did not identify themselves or the company for which they worked.

The defendants provided affidavits claiming “neither [defendant] entity maintain[ed] control or oversight over the third-party marketing firms” that made the calls and that they didn't “select who [the] third-party marketing firms market[ed] to or the manner in which those marketing firms conduct[ed] their operations.” Because the plaintiff didn't offer an affidavit or other contradiction of the affidavits, the court decided he "made conclusory assertions that defendants were vicariously liable for the telemarketing calls without stating the nature of the relationship the defendants had with the unidentified telemarketing firm, the court stated it could not “reasonably infer an agency relationship ....”

So the court found against actual authority:

Plaintiff fails to allege facts that SBLI manifested to either Rawlings or the American Benefits telemarketer its assent that the third-party telemarketer act on SBLI's behalf. Nor does Plaintiff allege SBLI controlled the manner or means of Rawlings or the American Benefits telemarketer’s operations. Although Plaintiff does allege SBLI had contractual relationship with Rawlings, who allegedly hired the American Benefits telemarketer, Plaintiff does not allege sufficient facts to establish SBLI had control over Rawlings’ day-to-day marketing practices, or his phone call practices, nor that Rawlings had such control over the American Benefits telemarketer. Based on the terms of the Agreement between SBLI and Rawlings, Rawlings did not have express authority to hire a third-party telemarketer, nor was SBLI in control of how Rawlings was to solicit applications.

Apparent authority

Quoting from the opinion: “Under an apparent authority form of agency, an agent has apparent authority to bind a principal if a third party reasonably believes the agent has authority to act on behalf of the principal and that belief is traceable to the principal's manifestations.”

“Apparent authority .. . can exist where ‘the principal knowingly permits the agent to exercise authority, or the principal holds the agent out as possessing such authority.’” Thus, apparent authority must be traceable to the conduct of the principal—in this case to SBLI. In its Motion, SBLI asserts it did not hold out either Rawlings or the third-party telemarketer as possessing authority to make automated calls on its behalf. Instead, SBLI asserts it hired Rawlings as an independent contractor who was authorized to transmit applications to it but was not to hold himself out as SBLI’s agent.

This is the legal theory I think the court got wrong and the complaint didn't help with [I'm assuming, I didn't pull it]:

Even accepting these facts as true, Plaintiff does not allege facts surrounding SBLI’s conduct she was aware of at the time of the call that reasonably led her to believe Rawlings was SBLI’s agent.

The Court got it wrong because it took a call transferred from Rawlings, and then transferred the call back to Rawlings. I don't know if the complaint focused on this, and maybe it did, and it should have.

Ratification

Quoting from the opinion: “Ratification is the affirmance of a prior act done by another, whereby the act is given effect as if done by an agent acting with

actual authority.” Again, I didn't pull the complaint so I don't know if the allegations the court didn't find were actually there, but the court was happy to give SBLI a get out of jail free card it didn't earn:

A party “could ratify an act by failing to object to it or to repudiate it,” or by “receiving or retaining [the] benefits it generates.” A purported principal, however, “is not bound by a ratification made without knowledge of material facts involved in the original at when the [party] was unaware of such lack of knowledge. Therefore, for SBLI to be held vicariously liable under an agency theory of ratification, it must have been aware of any unlawful calls made by the American Benefits telemarketer or Rawlings and SBLI did not object or repudiate any benefits to it. Plaintiff does not allege that SBLI knew of the American Benefits telemarketer’s calls nor Rawlings’ conduct to satisfy the knowledge requirement. As such, neither the American Benefits telemarketer nor Rawlings is SBLI’s agent under a ratification theory because there are no allegations of SBLI's affirmance of a TCPA-prohibited act by either.

If the complaint was written correctly, this should be appealed.

TCPA lawsuits using theories of vicarious liability need to be built and alleged correctly. Would you like a free case review? Do you have a question or a telemarketing, debt collection, or bankruptcy case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!

Are telemarketers harassing you in Washington, Oregon, or Montana? My Washington State TCPA plaintiff law practice can help, just give us a call at 206-800-6000 or email peter@nwdebtresolution.com.

The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.

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