“Total Satisfaction Guarantee” Until They Are Sued

An Orange County jury has awarded more than $10 million in a wrongful-death lawsuit that held Michigan-based Domino’s Pizza liable for the crash.

The crash occurred along a dark stretch of highway on Jan. 13, 2011, when a Domino’s delivery driver attempted to merge into a westbound lane. When Richard Wiederhold swerved to avoid a collision, he lost control; his car flipped and hit a tree. Yvonne, his then fiancé, was in the car, too; she escaped with non-life-threatening injuries. Richard suffered a spinal cord injury that rendered him a quadriplegic. He subsequently passed away in March 2012 due to complications from his injuries. Kidd was not injured. He was initially ticketed in the crash for running a stop sign, but the charge was dismissed, according to court records. After the crash and Richard’s treatment, the couple got married. Yvonne said she wanted Richard to know she was there for him – no matter what. Until his death, Yvonne took care of all of Richard’s needs, including feeding him through a tube and bathing him.

The Wiederhold’s filed a lawsuit in February 2011 seeking compensation through personal injury claims. The case was pending when Richard died from blood clots related to his paralysis, transforming it into a wrongful death lawsuit.

After a week-long trial, the jury determined Domino’s was responsible for the actions of its franchisees, including the negligent driving practices of a single delivery driver. In a closing statement, the plaintiff’s attorney, Mark Avera, told jurors Domino’s exercised control over all major aspects of the franchise, rendering it liable for the crash under agency principles. Avera also argued that the franchise documents included a list of restrictions that extended to delivery drivers. “That’s control. That’s evidence of [the] right of control,” he said. Avera also argued that the franchise agreement’s description of franchisee as an “independent contractor” was merely a “label” to avoid liability, and it had no effect when compared to the control Domino’s had under the agreement. “You can say, ‘we’re not principal and agent.’ But you are.” The jury awarded in favor of the plaintiff, assigning the driver 90 percent of fault in the crash and Richard Wiederhold 10 percent. The damages are for mental anguish, loss of companionship and pain and suffering. Domino’s had previously agreed to pay for Richard’s medical expenses.

Domino’s Pizza LLC is petitioning for a new trial, according to a company spokesman. “The delivery driver was an employee of an independent franchise owner, said Tim McIntyre. “As he did not work for us, we believe there are grounds for a new trial.” If the request for a new trial is denied, Domino’s intends to appeal, he said.

This is not the first time that the Domino’s pizza chain, with thousands of franchises, has been sued for an auto accident, nor is it the first time the company has filed an appeal arguing that the evidence was legally insufficient to establish that the company was liable. The appeals have mainly focused on the level of control Domino’s actually has over the activities of their franchises.

This brings up the question — Is Domino’s liable under the respondeat superior doctrine? Franchisor vicarious liability usually arises from the respondeat superior doctrine, which states that the “superior is responsible for the acts of the subordinate”. In other words, vicarious liability can arise simply because the franchisor exercises control over specific aspects of the franchisee’s business, such as mandating standards and procedures involving pizza-making and delivery, general store operations, and brand image.

Domino’s spokesperson, Michael Northrup, said now that the company no longer has a “30 minute guarantee” program in place (it was dropped after a 1993 lawsuit ended in the multi-million dollar settlement), any incentive program for making speedy deliveries would come from the local franchisee. He said that because the franchisee make all day-to-day decisions and retain a right of control over factors such as hiring, direction, supervision, discipline, and discharge, the corporation is not liable for negligence by franchisees or their employees. Yet, Domino’s does offer a “Total Satisfaction Guarantee” which states: “If for any reason you are dissatisfied with your Domino’s Pizza dining experience, we will re-make your pizza or refund your money.” This brings us back to delivery. Not only did the company build its business by delivering in a timely fashion, but Northrup admitted that Domino’s offers store managers incentives and bonuses for deliveries completed within 30 minutes. Today, their website states that “Domino’s is the recognized world leader in pizza delivery operating a network of company-owned and franchise-owned stores in the United States and international markets. Domino’s is a company of exceptional people on a mission to be the best pizza delivery company in the world.”

The bottom line question is – are drivers still under pressure to get pizzas delivered in a short amount of time and does that pressure come from some kind of corporate policy — written or unwritten, publicized or not? Is Domino’s subtly directing franchisees and drivers to provide quick pizza deliveries in a policy of total satisfaction? If so, doesn’t exerting such pressure lead to reckless behavior, ultimately subjecting Dominoes to liability? It seems the corporation wants to maintain a high level of control when it comes to matters of profit and business management, but when a personal injury or wrongful death suit is brought, they argue a lesser degree of control over its franchisees. As Mark Avera said, if you are going to maintain control in any way, you can’t pick and choose what you control.

What do you think? Is Domino’s risking lives for the sake of a competitive advantage?

Mark Bello is the CEO and General Counsel of Lawsuit Financial Corporation, a pro-justice lawsuit funding company.