If a Virginia bail bondsman signs a bail bond as an agent for the insurance company that backs it, can the bondsman be sued personally when the defendant skips court and the bond is forfeited?

Plain-English summary

Norfolk General District Judge James Mathews asked the Attorney General to clarify who is on the hook when a defendant skips court and a secured bail bond is forfeited: the surety bail bondsman who signed the bond, or only the insurance company named on it. Acting AG William Mims concluded that the corporate surety is liable, not the bondsman individually, so long as the bondsman signed as a disclosed agent and stayed within the authority granted by the company's power of attorney.

The reasoning is straightforward agency law. A surety bail bondsman in Virginia must be licensed by both the Department of Criminal Justice Services and the State Corporation Commission, and he sells surety insurance on behalf of a licensed insurer. The insurer is the one acting as surety on the bond. The bondsman executes the bond under a written power of attorney issued by the surety company, and § 38.2-2420 expressly provides that a bond signed by an agent under such a POA has the same force and effect as if the surety company itself had signed.

Under general agency principles, an authorized agent who contracts on behalf of a disclosed principal is not personally liable on the contract. The agent is presumed to intend to bind the principal, not himself. There are narrow exceptions (an agent who exceeds his authority, or one who expressly agrees to be liable), but the AG concluded that nothing in the bail-bondsman licensing statutes alters those baseline rules.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Virginia regulates surety bail bondsmen as a hybrid of criminal-justice licensee and insurance agent. Section 9.1-185 defines a surety bail bondsman as "any person who is licensed by the Department who shall be authorized to sell, solicit, or negotiate surety insurance on behalf of any insurer licensed in the Commonwealth pursuant to which the insurer becomes surety on or guarantees a bond." Section 38.2-1801(A) treats every licensed agent as the agent of the insurer that issues the insurance. Section 38.2-2417 sets the scope of the power of attorney that the surety company gives to its bail-bond agents, and § 38.2-2420 ratifies bonds executed under that POA as equivalent to bonds signed by the insurer directly.

The Supreme Court of Virginia's foundational agency case, Richmond Union Passenger Ry. Co. v. N.Y. & Sea Beach Ry. Co., 95 Va. 386 (1897), held that an authorized agent is not personally liable for contracts entered on behalf of the principal, with limited exceptions for agents who exceed their authority or who expressly accept personal liability. That holding, paired with the statutes treating a licensed bondsman as an agent of the insurer, drove the opinion's conclusion.

Common questions

If the corporate surety refuses to pay the forfeited bond, can the court go after the bondsman who signed it?

The opinion concluded no, provided the bondsman acted within the authority granted in the surety's power of attorney. The Commonwealth's remedy on a forfeited bond runs against the surety company, which is the party that actually guaranteed the defendant's appearance.

Are there situations where the bondsman would be personally liable?

The AG identified the standard agency-law exceptions: a bondsman who exceeds the scope of authority granted in the power of attorney, or one who expressly agrees to be personally liable on a specific bond. The opinion did not address fraud or unlicensed activity, which would raise separate questions.

Does it matter that the bondsman is licensed by two different agencies?

The dual licensure (DCJS plus the SCC) was relevant to confirm the bondsman's status as an authorized agent under the insurance code. The AG noted that the licensure provisions of Title 9.1 and Title 38.2 "do not affect" the general agency rule that an authorized agent is not personally liable on contracts entered for a disclosed principal.

Did this opinion change Virginia law on bail-bond liability?

It was an interpretive opinion, not a change. The result follows from existing statutes (especially § 38.2-2420) and from established Virginia agency law going back to Richmond Union. The question reached the AG because the Norfolk General District Court was apparently seeing claims (or assumed practices) that pulled the bondsman in personally after forfeiture.

Citations

• Va. Code Ann. § 2.2-505 (advisory opinions)
• Va. Code Ann. § 9.1-185 (defining "surety bail bondsman")
• Va. Code Ann. § 38.2-121 (defining "surety insurance")
• Va. Code Ann. § 38.2-1801(A) (deeming licensed agent the agent of the insurer)
• Va. Code Ann. §§ 38.2-2416, 38.2-2417, 38.2-2420 (powers of attorney; validity of bonds executed under POA)
• Richmond Union Passenger Ry. Co. v. N.Y. & Sea Beach Ry. Co., 95 Va. 386, 28 S.E. 573 (1897)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/09-025-Mathews.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
William C. Mims, Attorney General

June 1, 2009

The Honorable James S. Mathews
Judge, Norfolk General District Court
811 E. City Hall Avenue
Norfolk, Virginia 23510-2772

Dear Judge Mathews:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issue Presented

You ask whether a surety bail bondsman who executes a secured bail bond as a disclosed agent-in-fact for the stated corporate surety is personally liable to the Commonwealth when the criminal defendant absconds, and the bond is forfeited.

Response

It is my opinion that a surety bail bondsman who executes a secured bail bond as a disclosed agent-in-fact for the stated corporate surety is not personally liable to the Commonwealth when the criminal defendant absconds, and the bond is forfeited.

Applicable Law and Discussion

Surety bail bondsmen, who must be licensed by the Department of Criminal Justice Services and the State Corporation Commission, sell, solicit, or negotiate surety insurance on behalf of insurers licensed in the Commonwealth.[1] The insurer thereby becomes surety on or guarantees a bond, which assures the performance of terms and conditions ordered as a condition of bail.[2]

A surety bail bondsman, acting as an agent for the surety company, acts through powers of attorney issued to the bondsman from the surety company.[3] Such powers of attorney enable the surety bail bondsman to execute bail bonds on behalf of the surety company.[4] Section 38.2-2420 recognizes that "[a]ny bond ... executed in the name and on behalf of the insurer as surety under the authority of the power of attorney shall have the same force, effect and validity" as if executed by the insurer itself.

Generally, an authorized agent is not personally liable for contracts entered on behalf of the principal.[5] Absent proof to the contrary, it is presumed that an agent intends to bind the principal.[6] There are several exceptions, e.g., when an agent exceeds the power vested in him by the principal[7] or when the agent expressly agrees to be liable.[8] The relevant licensure provisions of the Virginia Code do not affect these general legal principles.

A surety bail bondsman serves only as an agent-in-fact for the surety company and binds the surety company to bail bonds executed on behalf of the surety company. As such, a surety bail bondsman operating within the bounds of his authority cannot be held personally liable to the Commonwealth for forfeited bonds when a defendant fails to comply with a condition of the bond.

Conclusion

Accordingly, it is my opinion that a surety bail bondsman who executes a secured bail bond as a disclosed agent-in-fact for the stated corporate surety is not personally liable to the Commonwealth when the criminal defendant absconds, and the bond is forfeited.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims

1. See VA. CODE ANN. § 9.1-185 (Supp. 2008), § 9.1-185.5 (2006); VA. CODE ANN. §§ 38.2-1800, 38.2-1814 (2007).
2. See § 9.1-185 (defining "surety bail bondsman"); VA. CODE ANN. § 19.2-119 (2008) (defining "bond"), § 38.2-121 (2007) (defining "surety insurance"); 6 VA. ADMIN. CODE § 20-250-10 (Supp. 2008) (defining "bond").
3. See § 38.2-121 (defining "surety insurance"); § 38.2-1801(A) (2007) (deeming that licensed agent is agent of insurer that issues insurance); § 38.2-1833 (Supp. 2008) (governing appointment of agents to sell insurance); § 38.2-2417 (2007) (defining scope of power of attorney).
4. See §§ 38.2-2416, 38.2-2417, 38.2-2420 (2007).
5. Richmond Union Passenger Ry. Co. v. N.Y. & Sea Beach Ry. Co., 95 Va. 386, 395, 28 S.E. 573, 575 (1897); 1A MICHIE'S JUR. Agency § 71, at 814 (2004).
6. Id.
7. 1A MICHIE'S JUR., supra note 5.
8. Richmond Union, 95 Va. at 395, 28 S.E. at 575.