Potter v. Washington State Patrol

• Decision Date: 26 November 2008
• Docket Number: No. 79172-4.,79172-4.
• Citation: 165 Wn.2d 67,196 P.3d 691
• Parties: Mark POTTER, on behalf of himself and the class he represents, Appellant, v. WASHINGTON STATE PATROL, a Washington State agency, Respondent.
• Court: Washington Supreme Court

196 P.3d 691

165 Wn.2d 67

Mark POTTER, on behalf of himself and the class he represents, Appellant, v. WASHINGTON STATE PATROL, a Washington State agency, Respondent.

No. 79172-4.

Supreme Court of Washington, En Banc.

Argued May 27, 2008.

Decided November 26, 2008.

Adam J. Berger, Schroeter Goldmark & Bender, Seattle, WA, for Appellant.

Shannon Elizabeth Inglis, Attorney General's Office, Criminal Justice, Seattle, WA, Jay Douglas Geck, Attorney General's Office, Olympia, for Respondent.

FAIRHURST, J.

¶ 1 In this case, we are asked to decide whether the process for redeeming an impounded vehicle as set forth in RCW 46.55.120 is the exclusive remedy for a person whose vehicle is unlawfully impounded. We hold RCW 46.55.120 is not exclusive and, therefore, a person whose vehicle is unlawfully impounded may bring a conversion action against the authority that authorized the impoundment.

I. STATEMENT OF THE CASE

¶ 2 Mark Potter was cited for driving while license suspended (DWLS) on two separate occasions in two different vehicles. On both occasions, the Washington State Patrol (WSP) impounded the vehicles despite Potter's request for a properly licensed family member to take control of the vehicles. In both instances, a hold was placed on the vehicles for 90 days. Potter claims he was unable to pay the requisite towing and storage fees to redeem his vehicles. Potter did not timely challenge the impoundments, and the towing company auctioned his vehicles.

¶ 3 Potter's vehicles were impounded according to the procedures outlined in chapter 46.55 RCW. RCW 46.55.113(1) authorizes a law enforcement officer to impound a vehicle when, among other things, the driver is arrested for DWLS.¹ For a DWLS violation, the vehicle may be impounded for a period of 30 days.² RCW 46.55.120(1)(a).³ Once impounded, a vehicle "may be redeemed only under the ... circumstances" delineated in RCW 46.55.120. RCW 46.55.120(1). An owner may redeem a vehicle by paying all applicable towing and storage fees. RCW 46.55.120(1)(e). If the vehicle was improperly impounded, the owner can avoid paying the towing and storage fees by requesting and prevailing at a hearing. RCW 46.55.120(2)(b).

¶ 4 Numerous fees and costs are associated with an impoundment. From the date of impoundment, the vehicle owner has five days to supply the towing company with a security deposit or the company may auction off the vehicle as an abandoned vehicle. RCW 46.55.120(1)(b). To redeem a vehicle, the owner must pay "the costs of towing, storage, or other services rendered during the course of towing, removing, impounding, or storing" the vehicle. RCW 46.55.120(1)(e). Additionally, if the vehicle was impounded for a DWLS violation and the driver was the owner, the owner must prove "any penalties, fines, or forfeitures owed by him or her have been satisfied." Id.

¶ 5 The owner of an impounded vehicle has a right to request a hearing. RCW 46.55.120(2)(b). For state-ordered impoundments, the impoundment hearing is held at the local district court. Id. The district court has jurisdiction to resolve "issues involving all impoundments." Id. The person requesting the hearing may produce evidence to prove the impropriety of the impoundment. RCW 46.55.120(3)(b). The court has the authority to determine "whether the impoundment was proper, whether the towing or storage fees charged were in compliance with the posted rates, and who is responsible for payment of the fees." RCW 46.55.120(3)(c).

¶ 6 If the court determines the impoundment was proper, the party requesting the hearing is liable for all fees and costs associated with the impoundment. RCW 46.55.120(3)(d). If the impoundment was improper, the agency authorizing the impoundment is liable for all fees, costs, and reasonable damages for the loss of use of the vehicle during the impound period. RCW 46.55.120(3)(e). However, where the impoundment arose from a DWLS violation, the government agency authorizing the impoundment is not liable for loss of use damages if the officer directing the impoundment "relied in good faith and without gross negligence on the records of the department in ascertaining that the operator of the vehicle had a suspended or revoked driver's license." Id.; In re 1992 Honda Accord, 117 Wash.App. 510, 521, 71 P.3d 226 (2003).

¶ 7 A vehicle owner waives the right to an impound hearing unless he or she requests the hearing within 10 days of the towing company giving notice to the owner of the opportunity to redeem the vehicle. RCW 46.55.120(2)(a), (b). The request must be in writing and filed with the appropriate court at least five days before the date of a vehicle's auction. RCW 46.55.120(2)(b). If the vehicle owner fails to act, the towing company may auction the vehicle. RCW 46.55.130(1).⁴ Surplus proceeds from the auction are placed in the state motor vehicle fund, and the former vehicle owner may file a claim for the surplus for up to one year. RCW 46.55.130(2)(h). In the instant case, Potter failed to pay the required fees or request an impound hearing.

¶ 8 After Potter's vehicles were impounded according to the procedures above, this court declared the WSP's impound policy, former WAC 204-96-010 (2000), invalid because the policy exceeded the agency's statutory authority by designating impoundment as mandatory, rather than permissive. In re Impoundment of Chevrolet, 148 Wash.2d 145, 159, 60 P.3d 53 (2002). Subsequently, Potter filed this class action lawsuit against the WSP, alleging the WSP unlawfully converted his vehicles by impounding them pursuant to the mandatory impound policy struck down in Impoundment of Chevrolet.⁵ The trial court certified the class as all

[r]egistered owners of motor vehicles that were impounded by the Washington State Patrol solely for Driving While License Suspended violations during the period of June 1, 2001 through December 19, 2002, who have not resorted to any other judicial or administrative method to challenge the legitimacy of the impound of their vehicle.[⁶]

Clerk's Papers at 13. Potter and the WSP filed cross-motions for summary judgment. The trial court granted the WSP's motion, concluding the WSP had the authority to impound the vehicles and, therefore, its exercise of authority was "privileged and renders it not liable for conversion." Verbatim Report of Proceedings at 42. Potter appealed. We granted direct review.

¶ 19 We reversed the trial court, holding summary judgment was inappropriate because the WSP's conduct was not privileged. Potter v. Wash. State Patrol, 161 Wash.2d 335, 342, 166 P.3d 684 (2007). We did not address whether RCW 46.55.120 bars Potter's conversion claim. Id. at 339 n. 3, 166 P.3d 684. The WSP moved for reconsideration, which we granted, to review only whether RCW 46.55.120 bars Potter's claim for conversion.

II. ISSUE

Whether RCW 46.55.120 bars Potter's conversion claim for the wrongful impoundments of his vehicles.

III. ANALYSIS

¶ 10 The WSP asks this court to strip Potter of his ability to bring a conversion claim against the WSP for the unlawful impoundments of his vehicles. In essence, we are asked to recognize the abrogation of the deeply ingrained common law concept of conversion because of the presence of a statutory procedure for redeeming an impounded vehicle. We decline to recognize the abrogation of a common law cause of action in the absence of either an explicit statement or clear evidence of the legislature's intent to abrogate the common law.

¶ 11 In general, our state is governed by the common law to the extent the common law is not inconsistent with constitutional, federal, or state law. RCW 4.04.010.⁷ The legislature has the power to supersede, abrogate, or modify the common law. See State v. Estill, 50 Wash.2d 331, 334-35, 311 P.2d 667 (1957); State v. Mays, 57 Wash. 540, 542, 107 P. 363 (1910). However, we are hesitant to recognize an abrogation or derogation from the common law absent clear evidence of the legislature's intent to deviate from the common law. "It is a well-established principle of statutory construction that `[t]he common law ... ought not to be deemed repealed, unless the language of a statute be clear and explicit for this purpose.'" Norfolk Redevelopment & Hous. Auth. v. Chesapeake & Potomac Tel. Co. of Virginia, 464 U.S. 30, 35-36, 104 S.Ct. 304, 78 L.Ed.2d 29 (1983) (alterations in original) (quoting Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603, 623, 3 L.Ed. 453 (1812)). A law abrogates the common law when "the provisions of a ... statute are so inconsistent with and repugnant to the prior common law that both cannot simultaneously be in force." State ex rel. Madden v. Pub. Util. Dist. No. 1, 83 Wash.2d 219, 222, 517 P.2d 585 (1973). A statute in derogation of the common law "must be strictly construed and no intent to change that law will be found, unless it appears with clarity."⁸ McNeal v. Allen, 95 Wash.2d 265, 269, 621 P.2d 1285 (1980).

¶ 12 In this case, we are asked to determine whether a statute regarding redemption procedures for impounded cars abrogates the common law tort claim of conversion. After considering the common law claim of conversion, the plain language of the redemption statute, and the legislative intent behind the redemption statute, we hold the common law claim of conversion was not abrogated by the legislature because the legislature did not intend for the redemption procedures set forth in RCW 46.55.120 to be the exclusive remedy for unlawful impoundments.

A. Standard of review

¶ 13 Summary judgment rulings are reviewed de novo. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wash.2d 692, 698, 952 P.2d 590 (1998). Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable inferences therefrom must be viewed in the light most favorable to the nonmoving party. Wilson Court, 134 Wash.2d at 698, 952...