Faw v. Millam

JOSHUA L. FAW, a single person, Appellant, v. TARA MILLAM, individually; JEFFREY L. MILLAM, individually; and TARA MILLAM and JEFFREY L. MILLAM, formerly wife and husband, and the marital community composed thereof, Respondents, and KYLE S. PARKER, individually; "JANE DOE" PARKER, individually; and KYLE S. PARKER and "JANE DOE" PARKER, husband and wife, and the marital community composed thereof; Defendants.

No. 42840-7-II

Court of Appeals of Washington, Division 2

December 10, 2013

UNPUBLISHED OPINION

Hunt J.

Joshua L. Faw appeals the superior court's summary judgment dismissal of his tort claims against Tara Millam and her husband, Jeffrey L. Millam. Faw's claims arise from a collision with a Toyota Paseo driven by Kyle S Parker^[1], given to him by Tara Millam. Faw argues that (1) there were genuine issues of material fact about whether the Millams owned the vehicle or had negligently entrusted it to Parker at the time of the accident precluding summary judgment; (2) the trial court erred in ruling admissible under ER 1003 the "Bill of Sale" (gifting the Paseo from Tara Millam to Parker as an acceptable duplicate of the original; and (3) the trial court erred in failing to address whether the Paseo was the Millams' community property. We affirm the superior court's summary judgment dismissal of Faw's claims against the Millams.^[2]

FACTS

On August 3, 2009, Kyle S. Parker was racing another driver on a public street in Pierce County, driving a 1992 Toyota Paseo which Tara Millam had given him several weeks earlier in Oklahoma. Parker's Paseo crossed the center line and struck Joshua Faw's oncoming vehicle, causing Faw numerous serious and permanent injuries, and disabling him for life. Parker, whose Washington driver's license had been previously suspended, pleaded guilty to a criminal charge of vehicular assault based on this incident and was sentenced to jail.

On January 19, 2010, Faw filed a personal injury action against Parker^[3], "Jane Doe" Parker, Tara Millam and "John Doe" Millam^[4], alleging that, as the Paseo's owner, Tara^[5] had negligently entrusted it to Parker. The Millams moved for summary judgment, arguing that they no longer owned the Paseo at the time of the accident. In support of their motion, Tara submitted a declaration, exhibits, and deposition statements asserting that (1) she was friends with Parker and his brother, who had helped her move from Washington to Oklahoma in February 2009, driving a U-Haul; (2) she and Parker had gone together to the Oklahoma Department of Licensing, surrendered their Washington driver's licenses, and received Oklahoma driver's licenses; (3) she did not know that Parker's Washington driver's license had been suspended; (4) when the Parkers' van suffered an engine malfunction, she had purchased them a 1992 Toyota Paseo, which Tara drove only once; (5) on July 13, 2009, she had written a "bill of sale"^[6] that purported to gift the Paseo to Kyle Parker, ^[7] Clerk's Papers (CP) at 174; (6) the Paseo and Kyle Parker were insured under her (Tara's) insurance policy when the Parker brothers drove it to Washington; and (7) on July 30, she had informed her insurer that she no longer owned the Toyota Paseo and instructed her insurer to remove the Paseo and Kyle Parker from her policy.^[8] The Millams also submitted Parker's declaration that there were no conditions attached to Tara's gift of the Paseo to him and no expectations that he would return it to her.

The superior court granted summary judgment to the Millams and dismissed Faw's action against them for the following reasons: (1) under Oklahoma law (which controlled ownership of the Paseo), Parker was the owner at the time of the accident^[9]; (2) there was "no evidence that Tara Millam knew or had any reason to know that Kyle Parker was reckless, heedless or incompetent in the operation of [the] automobile"; (3) under Washington law (which controlled whether the Millams were liable to third party Faw in Washington), Faw failed to raise a genuine issue of material fact about Tara's knowledge of Parker's competence to drive; and (4) the Millams were not liable to Faw as a matter of law.^[10] Verbatim Report of Proceedings (VRP) at 25. Faw appealed the superior court's summary judgment dismissal of his action against the Millams.^[11]

ANALYSIS

I. Summary Judgment Dismissal of Claims Against the Millams

Faw argues several grounds to support his contention that the superior court erred in dismissing his claims against the Millams. He contends that the Millams owned the Paseo, negligently entrusted it to Parker, and, therefore, were liable to Faw for his injuries. These arguments fail.

We review de novo summary judgment orders, engaging in the same inquiry as the trial court and treating all facts and inferences in the light most favorable to the nonmoving party, here, Faw. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is proper where there is no genuine issue as to any material fact, the moving party is entitled to a judgment as a matter of law, and a reasonable person could reach only one conclusion. Saddle Mountain Minerals, LLC v. Joshi, 152 Wn.2d 242, 248-49, 95 P.3d 1236 (2004); Lamon v. McDonnell Douglas Corp., 91 Wn.2d 345, 350, 588 P.2d 1346 (1979).

A. No Third Party Liability Based on Vehicle Ownership

Faw first argues that, under either Oklahoma or Washington law ^[12] the Millams should be held liable for his injuries because they were the owners of the Paseo when it collided with his vehicle. The record does not support this underlying factual assertion.

1. Oklahoma and Washington laws

To resolve choice-of-law problems in tort cases, "Washington has adopted the 'most significant relationship' rule." Zenaida-Garcia v. Recovery Sys. Tech., Inc., 128 Wn.App. 256, 259-60, 115 P.3d 1017 (2005) (quoting Martin v. Goodyear Tire & Rubber Co., 114 Wn.App. 823, 828, 61 P.3d 1196 (2003)). "Under this approach, the rights and liabilities of the parties 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." Zenaida-Garcia, 128 Wn.App. at 260 (citing Johnson v. Spider Staging Corp., 87 Wn.2d. 577, 580, 555 P.2d 997 (1976)).

Here, although the accident occurred in Washington, the superior court ruled that the most significant relationship concerning ownership of the Paseo was in Oklahoma; thus, Oklahoma law applied. We agree. It was uncontroverted that Tara delivered the Paseo to Parker in Oklahoma and that Parker drove the Paseo in Oklahoma with an Oklahoma license before leaving for Washington. We agree with the superior court that conveyance of the Paseo occurred in Oklahoma, Oklahoma had the '"most significant relationship'"^[13] with this conveyance, and, therefore, Oklahoma law governed ownership of the Paseo.^[14]

2. Transfer of vehicle to Parker before leaving Oklahoma for Washington

Faw argues that, even if Tara had intended to transfer the Paseo to Parker, she failed to comply with Oklahoma's statutory requirements for vehicle transfers and, thus, remained the owner, liable to third parties such as Faw.^[15] Faw notes, for example, the lack of evidence that Parker obtained insurance for the Paseo, as required by Okla. Stat. tit. 47, § 1112(3)(a). This argument does not defeat the superior court's conclusion that Tara conveyed ownership of the Paseo to Parker. Even if Parker failed to obtain insurance, this failure would not have operated to transfer ownership of the Paseo or liability back to Tara.

First, under Oklahoma law, it is not necessary for a vehicle transferee to obtain insurance on a newly acquired vehicle in order for the transferor to avoid liability. See Okla. Stat. tit. 47, § 1107.^[16] Second, although Faw is correct that the holder of a certificate of title is presumed to be the vehicle owner, this presumption is rebuttable. See Heinrich v. Titus-Will Sales, Inc., 73 Wn.App. 147, 162, 868 P.2d 169 (1994). That Tara's name remained on the Paseo's title at the time of Parker's collision was insufficient to trigger her liability to Faw. Under both Oklahoma and Washington law, certificates of title are not necessary to establish ownership. See Okla. Stat. tit. 12A, § 2-401^[17]; Heinrich, 73 Wn.App. at 162.^[18]

Third, regardless of whether Oklahoma or Washington law applies, the record supports the trial court's conclusion that Tara gave the Paseo to Parker in Oklahoma, before he drove it to Washington and collided with Faw. Both Parker and Tara stated in their declarations that, shortly before Parker left for Washington, (1) Tara gave the Paseo to Parker, without conditions or expectation of return; and (2) she created and signed a "bill of sale" memorializing this transfer on July 13, 2009.^[19] CP at 289. Consistent with this transfer of ownership, as previously noted, Tara contacted her insurance company, informed them that she no longer owned the vehicle, and removed both the Paseo and Parker from her policy. There is no disputed issue of material fact that Tara conveyed the Paseo to Parker before he left for Washington.

3. Bill of Sale

In his opening brief, Faw assigns error to the superior court's "admission" of the document entitled "bill of sale" into evidence. Br. of Appellant at 4. He asserts that "the Bill of Sale was manufactured by the defendants after the accident in an attempt to avoid liability"^[20] and a copy was inadmissible under ER 1002, which requires the original. We do not address this issue for several reasons.

Although Faw briefly questioned the admissibility and authenticity of the "Bill of Sale" below, he provided no facts or authority to support his argument below, and he neither requested nor received from the...