Barr v. Interbay Citizens Bank of Tampa, Fla.

• Decision Date: 29 October 1981
• Docket Number: No. 47231-9,47231-9
• Citation: 96 Wn.2d 692,635 P.2d 441
• Parties: Laurence D. BARR, as personal representative of the Estate of George W. Barr, deceased, Appellant, v. INTERBAY CITIZENS BANK OF TAMPA, FLORIDA, Respondent.
• Court: Washington Supreme Court

Page 692

96 Wn.2d 692

635 P.2d 441

Laurence D. BARR, as personal representative of the Estate of George W. Barr, deceased, Appellant, v. INTERBAY CITIZENS BANK OF TAMPA, FLORIDA, Respondent.

No. 47231-9.

Supreme Court of Washington, En Banc.

Oct. 29, 1981.

Gordon, Thomas, Honeywell, Malanca, Peterson & O'Hern, Ronald B. Leighton, Tacoma, for appellant.

Johnson, Lane & Gallagher, Joanne Henry, Tacoma, for respondent.

DOLLIVER, Justice.

This is an appeal from a trial court ruling which denied a motion that Florida law be applied to this case on the issue of punitive damages.

In January of 1977, Neumon Vann was in Tampa, Florida on business. He saw a 1975 Lincoln Continental for sale. Aware that a friend of his was looking for such a car, Vann inquired about and ultimately purchased the Continental from its owner, R. D. Young. He paid $6,650 with a check payable to the Exchange Bank of West Shore, which bank held a lien on the automobile. By agreement, as soon as Vann's check cleared his bank, the Exchange Bank of West Shore was to send clear title to him. Instead, the bank sent the title to Young.

In the meantime, Vann drove the automobile from Florida to California where his friend, George Barr, was visiting from Tacoma, Washington. Barr looked the car over and decided to buy it. On February 18, 1977, Barr gave Vann a check for $4,000, together with his 1974 Ford LTD. Vann explained the situation regarding the title certificate and gave his assurance that the title would be in Tacoma before Barr returned there, but upon Barr's return the certificate had not arrived.

During the ensuing months, while Barr attempted to secure the title, Young had taken out a loan from the Interbay Citizens Bank of Tampa, Florida, and given title to the car as collateral for the loan. In time, Interbay Citizens Bank initiated repossession of the car by contacting an attorney in Las Vegas, the residence of Vann and apparently where the bank believed the car to be located. The attorney in Las Vegas contacted persons in Las Vegas for purposes of repossession. After discovering the car was located in Tacoma, these same persons then took the car from Barr and returned it to Nevada. Later the parties agreed the car would be returned to Barr in Tacoma by September 23, 1977, but the car was not delivered in Tacoma until October 10, 1977. By this time he had purchased another car and refused to accept the Lincoln Continental when it arrived.

On January 19, 1978, the plaintiff filed an action in Pierce County Superior Court alleging damages for conversion, intentional infliction of emotional distress, and outrageous conduct on the part of the defendant, Interbay Citizens Bank of Tampa, Florida. Defendant answered denying the material allegations in the complaint.

On November 22, 1978, plaintiff brought a motion seeking an order that Florida law on the issue of punitive damages would apply to the case. This motion was denied by the court. At trial, all claims of the plaintiff, except that for punitive damages, were submitted to the jury, which returned a verdict in favor of the plaintiff on the 19th day of May, 1979, in the amount of $36,816.

Defendant and plaintiff filed timely notices of appeal and cross appeal. The appeal was dismissed, leaving only the cross appeal (which pertains to the absence of a jury instruction on punitive damages) to be resolved. We accepted transfer of this case from the Court of Appeals.

Initially, defendant claims lack of jurisdiction by the trial court in that plaintiff failed to comply with RCW 4.28.185(4), relative to personal service outside the state. We need not discuss the merits of this issue. As recognized by the comment of this court in granting the motion of plaintiff to transfer this matter from the Court of Appeals:

Barr was originally the respondent-cross-appellant as the initial notice of appeal in this matter was filed by the opposing party, Interbay Citizens Bank of Tampa, Florida (Bank). The Bank has since abandoned its appeal, however, and this is now before the court strictly in the capacity of a respondent.

We concur in this view.

The main issue to be decided is whether the trial court was required to apply the law of Florida to plaintiff's claim for punitive damages. The courts of Washington and Florida have made conflicting policy decisions with respect to the allowance of punitive damages. Under the law of this state, punitive damages are not allowed unless expressly authorized by the legislature. Steele v. Johnson, 76 Wash.2d 750, 458 P.2d 889 (1969); Maki v. Aluminum Bldg. Prods., 73 Wash.2d 23, 436 P.2d 186 (1968); Conrad v. Lakewood Gen. Hosp., 67 Wash.2d 934, 410 P.2d 785 (1966). Under the law of Florida, however, punitive damages may be awarded. Miami Beach Lerner Shops, Inc. v. Walco Mfg. of Florida, Inc., 106 So.2d 233 (Fla.D.C.A.1958).

In determining the appropriate choice of law, this court has rejected the lex loci delicti choice-of-law rule and has adopted the most significant relationship rule for contracts and tort choice-of-law problems. Johnson v. Spider Staging Corp., 87 Wash.2d 577, 555 P.2d 997 (1976); Potlatch No. 1 Fed. Credit Union v. Kennedy, 76 Wash.2d 806, 810, 459 P.2d 32 (1969); Baffin Land Corp. v. Monticello Motor Inn, Inc., 70 Wash.2d 893, 425 P.2d 623 (1967).

This rule was articulated by the court in Johnson v. Spider Staging Corp., supra 87 Wash.2d at 580-81, 555 P.2d 997, as follows:

The Restatement (Second) of Conflict of Laws § 6 (1971), with which we are in accord, developed this new approach, and section 145 sets out the general principles which apply to a tort choice-of-law problem:

(1) The rights and liabilities of the parties with respect to an issue in tort are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the occurrence and the parties under the principles stated in § 6.

(2) Contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place where the injury occurred,

(b) the place where the conduct causing the injury occurred,

(c) the domicil, residence, nationality, place of incorporation and place of business of the parties, and

(d) the place where the relationship, if any, between the parties is centered.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

(Italics ours.) Accord, Restatement (Second) of Conflict of Laws §§ 175-80 (1971). Our approach is not merely to count contacts, but rather to consider which contacts are most significant and to determine where these contacts are found.

In the case before us, Washington is the place where the injury occurred and where plaintiff resided and was domiciled. Florida is the place of incorporation and the principal place of business of defendant as well as the place where the conduct occurred causing the injury. As has been stated, there were other significant contacts in Nevada. However, since plaintiff neither contended Nevada law should be applied nor presented that law to the court, it is presumed Nevada law is the same as Washington law. International Tracers of America v. Estate of Hard, 89 Wash.2d 140, 570 P.2d 131 (1977), cert. denied 435 U.S. 1004, 98 S.Ct. 1873, 56 L.Ed.2d 386 (1978).

Which state has the most significant relationship? The Restatement (Second) of Conflict of Laws § 171, Comment d, states: "The law selected by application of the rule of § 145 determines the right to exemplary (punitive) damages." Under usual circumstances, we might follow the statement in section 145, Comment c:

If the primary purpose of the tort rule involved is to deter or punish misconduct, as may be true of rules permitting the recovery of damages for alienation of affections and criminal conversation, the state where the conduct took place may be the state of dominant interest and thus that of most significant relationship ... On the other hand, when the tort rule is designed primarily to compensate the victim for his injuries, the state where the injury occurred, which is often the state where the plaintiff resides, may have the greater interest in the matter.

Restatement (Second) of Conflict of Laws § 145, Comment c, at...