87 Hawai'i 394, Kutcher v. Zimmerman, 19780

• Decision Date: 04 May 1998
• Docket Number: No. 19780,19780
• Citation: 957 P.2d 1076
• Parties: 87 Hawai'i 394, 13 IER Cases 1753 Harvey KUTCHER, Plaintiff-Appellant, v. Rebecca ZIMMERMAN, an individual, and Millie Peluso, an individual, Defendants-Appellees.
• Court: Hawaii Court of Appeals

Page 1076

957 P.2d 1076

87 Hawai'i 394, 13 IER Cases 1753

Harvey KUTCHER, Plaintiff-Appellant, v. Rebecca ZIMMERMAN, an individual, and Millie Peluso, an

individual, Defendants-Appellees.

No. 19780.

Intermediate Court of Appeals of Hawai'i.

May 4, 1998.

As Amended May 15, 1998.

Burton D. Gould, on the brief, Paia, for plaintiff-appellant.

Gary N. Hagerman, on the brief, Hilo, for defendants-appellees.

Before BURNS, C.J., and ACOBA and KIRIMITSU, JJ.

ACOBA, Judge.

We hold that a plaintiff alleging the tort of intentional interference with prospective contractual relations must plead and prove (1) a prospective contractual relationship existed between the plaintiff and a third party; (2) the defendant knew of this relationship; (3) the defendant intentionally interfered with the relationship; (4) the defendant acted without proper justification; (5) the defendant's interference caused the third party to fail to consummate the prospective contract with the plaintiff; and (6) the defendant's interference caused damages to the plaintiff.

In granting summary judgment in favor of Defendants-Appellees Rebecca Zimmerman (Zimmerman) and Millie Peluso (Peluso) (collectively referred to herein as Defendants) and against Plaintiff-Appellant Harvey Kutcher (Kutcher) on Kutcher's claim of intentional interference with prospective contractual relations, the second circuit court (the court) apparently relied on the test for this tort set forth in the Restatement (Second) of Torts § 766B (1977) (section 766B). Because section 766B has been criticized as unworkable, we decline to adopt it. However, applying the elements above and for the reasons set forth herein, we reach the same conclusion as the court.

We affirm, therefore, the court's March 27, 1996 order granting summary judgment in favor of Defendants and the corresponding April 11, 1996 judgment.

I.

A.

We consider the following agreed-upon facts as presented in the parties' summary judgment memoranda and the exhibits attached thereto, although, preliminarily, we observe that none of the exhibits relied upon were supported by any appropriate affidavit or certification under Hawai'i Rules of Civil Procedure (HRCP) Rule 56(e). See discussion supra part III.

Kutcher was apparently working for a temporary employment agency and was assigned to Avis Rent-A-Car (Avis) on the island of Maui when he came under consideration for full-time employment with Avis.

A drug screening test was a mandatory requirement for every prospective Avis employee. Accordingly, on June 22, 1995, Kutcher went to the Clinical Laboratories of Hawaii (CLH), Kahului location (the Kahului lab), to take a drug test.

After Kutcher arrived at the Kahului lab, Zimmerman, a CLH employee, completed the necessary paperwork, gave Kutcher a specimen jar, and showed him to a bathroom where he was to give a urine sample. Kutcher entered the bathroom, and according to Zimmerman, remained there for about ten to fifteen minutes.

Zimmerman then knocked on the bathroom door and asked Kutcher if he was "all right." Kutcher came out of the bathroom and gave Zimmerman the specimen jar, which contained about 40 cubic centimeters (c.c.s) of urine. Zimmerman informed Kutcher that the specimen was insufficient and would have to be discarded because the laboratory required 60 c.c.s of urine.

In his summary judgment memorandum and again on appeal, Kutcher acknowledged that he became "very upset" and accused Zimmerman in a loud voice of treating him unfairly. In her deposition, Zimmerman characterized Kutcher's behavior as "extremely rude." Zimmerman explained, "The rudeness wasn't, I don't think, directed at me. I didn't take it personally. It bothered me more that he was doing this around patients." She also stated that "[she] wasn't angry, but [she] was upset because he was accusing [her] of being unfair and that was not the case at all." Kutcher then "grabbed" his paperwork and indicated that he was going to Millyard, the CLH lab in Wailuku (the Wailuku lab), to have the test performed.

After Kutcher left, Zimmerman called the Wailuku lab and spoke with her co-worker Peluso, a CLH employee at that lab, to inform her that Kutcher was on his way there. Zimmerman also informed Peluso about Kutcher's behavior at the Kahului lab.

Kutcher did not immediately report to the Wailuku lab. Approximately thirty to forty-five minutes after speaking with Zimmerman, Peluso made a telephone call to Avis and spoke with Debbie Tauchas (Tauchas), Avis's District Manager. Peluso claimed that it was standard procedure for CLH to call an employer if a drug screening test was not completed as arranged by the employer. However, Peluso was not usually the CLH employee to make this call and apparently did so because her supervisor was not at the Wailuku lab at that time.

Peluso testified in her deposition that the purpose of her call was to inform Tauchas that Kutcher had not completed the drug test at the Kahului lab and that he indicated he was going to the Wailuku lab to have the test performed, but had not yet arrived. Peluso also informed Tauchas that Kutcher "had become upset with" and "yell[ed]" at Zimmerman.

In recounting her conversation with Tauchas from that point, Peluso stated,

[Tauchas] said ... something about that, "Imagine how he would treat our employees"--or "customers. I'm sorry if he treated your employees that way." And I was shocked. And I told her that the reason--I reiterated the reason for my phone call was to let her know that we hadn't received a specimen, an acceptable specimen.

Kutcher did report to the Wailuku lab later that same day.

Tauchas explained in her deposition that she was concerned by her conversation with Peluso because "if there was a confrontation at the lab ... that could turn into a confrontation with an employee or with a customer." Hence, Tauchas reviewed Kutcher's employment application and reported that the application was not complete and that "there were some inconsistencies with previous employers." Tauchas also indicated that the Kahului lab, and not the Wailuku lab, was the designated collection site for Avis. ¹ She then determined that Avis "didn't have enough information" to offer Kutcher employment "at that time."

Tauchas stated that she is the person "ultimately ... responsible" for hiring employees at Avis, that she had no prior contact with any CLH employee about other patients, and that no one from CLH indicated whether or not it would be "a good idea" for Avis to hire Kutcher.

According to Julie Rodrigues (Rodrigues), another Avis employee, Kutcher told her the day after the incident that he had been "treated unfairly" at the lab. Rodrigues advised Kutcher that "he needed to talk to [Tauchas]." However, Tauchas indicated that Kutcher never contacted her, nor did she contact him to inquire about what occurred at the Kahului lab.

B.

On October 6, 1995, Kutcher filed a complaint against Defendants in their individual capacities for their alleged "tortious and improper interference" with Kutcher's "business relationship" with Avis, which caused Kutcher to "suffer[ ] a loss of the economic expectancy arising from the relationship." Kutcher claimed that on or about June 22, 1995, Avis was "contemplat[ing] employing [him] full time" and he "was required to go for a drug test in order to work for [Avis]." In the course of his taking the drug test at CLH, Kutcher asserted, Zimmerman "engaged in an argument with [Kutcher] because of [his] inability to produce 60 [c.c.s] of urine." According to Kutcher, Zimmerman then informed Peluso that Kutcher "did not comply with [Zimmerman's] request[,]" leading Peluso to call Avis and "inform[ ] them that [Kutcher] had not cooperated and was an argumentative person."

Kutcher maintained that Zimmerman's and Peluso's actions "were done with the intent to disrupt [his] relationship with [Avis] and ... did in fact disrupt that relationship." As to Defendants' motives, Kutcher alleged that "Defendants engaged in the interfering conduct with malice towards [Kutcher] and a desire to injure [him] economically and with wantonness and disregard of [his] rights." Kutcher further alleged that "Defendants' conduct was improper, unlawful and unfair." Finally, he claimed that Defendants' actions were not "justified or privileged[.]"

On October 27, 1995, Defendants filed their answer to Kutcher's complaint, alleging "truth" as one of their defenses.

On March 6, 1996, Defendants filed their motion for summary judgment, contending that Kutcher could not establish any of the essential elements required for the tort of intentional interference with a prospective contractual relationship. Specifically, Defendants argued that they did not know of Kutcher's potential employment with Avis, that they did not intentionally interfere with Kutcher's prospects for obtaining employment with Avis, that they did not act in pursuit of an improper purpose, and that their acts were not the cause of Avis's decision to deny Kutcher employment.

On March 15, 1996, Kutcher filed a memorandum in opposition to Defendants' motion. Relying on the elements of the tort of intentional interference with prospective contractual relations as set forth in section 766B, ² Kutcher argued that Defendants intended to interfere with his prospective employment with Avis, that the interference was improper under the factors enumerated in the Restatement (Second) of Torts § 767 (1977) (section 767), and that the interference was "the legal cause of the pecuniary harm suffered by [Kutcher] as a result of not obtaining the prospective contract" with Avis. Although stating that "Defendants' [sic] intended to interfere[,]" Kutcher has focused all of his arguments, before the court and again on appeal, on Peluso only, asserting that Peluso had the requisite intent to interfere and that Peluso's interference was improper. Kutcher observed that "interference can be improper even though...