Van Baalen v. Mutual of Omaha: In New Mexico, an Insurer Needs Only "Minimal" Control Over Telemarketers to Face Vicarious Liability

Alleged Calling Structure

The plaintiff alleged that his cell phone was on the National Do Not Call Registry when unidentified callers using fake names repeatedly called to pitch Medicare supplement insurance. Each call began with "dead air," and calling the numbers back reached the same scripted pitch. According to the complaint, Mutual of Omaha contracted with an insurance agency and its owner, who hired the callers and approved their script. Interested consumers were transferred to the agency's call center. The plaintiff feigned interest, was transferred to an agent who called the operation a "Medicap Enrollment Center," and then received an email from Mutual of Omaha asking him to sign the application.

Agency: No "Manner and Means" Requirement

Mutual of Omaha argued that it could be vicariously liable only if it controlled the "manner and means" of the telemarketing, relying on the Ninth Circuit's decision in Jones v. Royal Administration Services. The court explained that the test comes from employment law. The Tenth Circuit, in a non-TCPA case, Alfaro-Huitron v. Cervantes Agribusiness, held that control over manner and means is required only when the agent is alleged to be an employee. Otherwise, minimal control is enough.

Under that standard, the actual authority allegations were sufficient. Mutual of Omaha allegedly authorized the calls, directly or indirectly controlled the callers, approved or helped develop the scripts, knew of the campaign and required the use of fake names. Because control was adequately pleaded, the shotgun pleading argument also failed. The court didn't reach apparent authority or ratification.

Remaining TCPA Elements

• Prerecorded voice. The plaintiff alleged that callers left "generic, standardized" prerecorded voicemails on several occasions. The court rejected a demand for "hyper-technical" detail before discovery.
• Residential use. Alleging personal, household and residential use was enough. The plaintiff did not need to plead that the cell phone was his primary or only line.
• Internal do-not-call rules. Joining what it described as the majority view, the court held that 47 C.F.R. § 64.1200(d) was adopted under Section 227(c) and is privately enforceable. The allegations that the callers used fictitious names, never identified the seller and hung up when asked were enough.

New Mexico Unfair Practices Act

Claims under the state law's sponsor disclosure and do-not-call provisions survived. Vicarious liability applied, and the allegation that the plaintiff's number was "at all relevant times" on the registry supported the three-month requirement. The state law injunction request was dismissed because the plaintiff alleged that the calls had stopped and did not substantively respond to that argument.

Observations

• The agency standard varies by circuit. In the Tenth Circuit, defendants may not be able to rely on Ninth Circuit "manner and means" arguments.
• A follow-up email from the carrier can link it to the calls. That email connected the insurer to the calling chain.
• Injunctive relief requires an ongoing threat. An allegation that the calls stopped defeated the request.

Read the District of New Mexico memorandum opinion.