ALP Federal Credit Union v. Ashborn

OPINION

Before BONEY, C. J., DIMOND, RABINOWITZ and CONNOR, JJ., and FITZGERALD, Superior Court Judge. DIMOND, Justice.

Appellant, with headquarters at Sitka, Alaska, loaned money to appellee to buy a car. Appellee executed a promissory note and chattel mortgage on the car in favor of appellant.

Claiming that payment of the note was in default, appellant requested the West Coast Recovery Service, of Seattle, Washington, to collect the amount due from appellee, who by then had moved from Sitka to Seattle. West Coast repossessed the car.

Appellee sued appellant in the State of Washington for what he claimed was a tortious or unlawful repossession of the car, and recovered judgment against appellant in an amount slightly in excess of $4,800. He then brought suit on that judgment of the Washington court in the superior court in Alaska. The Alaska court granted appellee’s motion for summary judgment and entered judgment in favor of appellee for the amount of the Washington judgment, plus costs. Appellant then brought this appeal.

The principal question raised here is whether the Washington court, in entering judgment in favor of appellee for tortious repossession of the car, had jurisdiction over appellant. Appellee claims there was jurisdiction under Washington’s long-arm statute. That statute provides that one submits himself to the jurisdiction of Washington’s courts if, in person or through an agent, he commits a tortious act within the State of Washington.1 It also pro*349vides that service of process on any such person may be made by personally serving the defendant outside of Washington.2 In accordance with the Washington statute, personal service of the summons and complaint was made on appellant in Sitka, Alaska.

The Washington long-arm statute speaks of tortious acts committed by one “in person or through an agent.” Since appellant in its own name did not repossess appel-lee’s car, in order for the statute to apply West Coast must have committed this act as appellant’s agent. Appellant contends that West Coast acted as an independent contractor, and not as an agent, and therefore that the Washington statute had no application and the Washington court did not acquire jurisdiction over appellant.

The arguments of the parties are devoted primarily to the distinction between an agent and an independent contractor. Reference is made to decisions of Washington courts which hold that the test in determining whether a person is an agent or an independent contractor is whether that person is controlled or subject to the control of the person hiring him in the performance of an act, or whether he is merely controlled or subject to control only as to the result.3

Appellant states that West Coast is a collection agency, specializing in the field of collecting monies secured by cars or other motor vehicles, and that appellant relied upon West Coast’s knowledge of laws and procedures necessary to effect collections and had no control over the conduct or action of West Coast. From this appellant argues that when West Coast repossessed appellee’s car it was not acting as appellant’s agent, but as an independent contractor, and therefore the Washington long-arm statute did not operate to confer jurisdiction of the Washington court over appellant.

There is a recognized distinction between an agent and an independent contractor.4 But that distinction may not always suffice to determine whether one in appellant’s position did or did not act “through an agent,” within the meaning of the Washington statute. There are circumstances where an independent contractor may also be an agent. As the Restatement (Second) of Agency points out, the attorney at law, the broker, the factor, the auctioneer and other similar persons employed either for a single transaction or a series of transactions, are agents, although as to their physical activities they are independent contractors. The distinction made here is *350between an independent contractor, who may or may not be an agent, and a servant who is always an agent.5 One of the reasons for the distinction is that the liability of a master for the torts of his servant is greater in extent than the liability of the principal for the torts of an agent who is not a servant.6

We do no more than mention these aspects of the law of agency because under the existing record it is not possible to decide whether repossession of appellee’s car by West Coast was the act of appellant “through an agent,” within the meaning of the Washington long-arm statute. The record is meager and somewhat obscure as to the relationship between appellant and West Coast. In opposition to appellee’s motion for summary judgment, appellant filed an affidavit of Frank H. B. Richards, appellant’s manager at. Sitka. Richards stated in pertinent part:

That subsequently I wrote to West Coast Recovery Service * * * Seattle, Washington, and requested it to collect the aforesaid sums due and owing by the said Alton Ashborn to the ALP Federal Credit Union.
That I had absolutely no control of the conduct and actions of West Coast Recovery Service.

Nothing was said here as to West Coast being authorized to repossess the car. On the other hand, appellee counters with a copy of a letter that Richards had written to appellee in August 1966. The letter stated in part:

They [West Coast] have been instructed to collect the face of the note, plus interest to date. Failing this they have been instructed to repossess your car.

Here specific mention was made as to West Coast’s authority to repossess appel-lee’s car.

The question as to whether the Washington court had jurisdiction over appellant, which we are asked to decide, depends ultimately upon the exact nature of the relationship between appellant and West Coast — particularly with respect to West Coast’s actions in taking possession of ap-pellee’s car. This is a genuine issue of material fact which must be litigated and decided before a decision can be made on the jurisdictional question. The case must be remanded for an appropriate factual hearing on this issue. The existence of such an issue of material fact made disposition of this case by summary judgment improper.7 It was error for the superior court to grant appellee’s motion for summary judgment.

In view of the necessity to remand for further proceedings, we do not feel it necessary to pass upon other issues raised by appellant on this appeal. The judgment is reversed and the case remanded for further proceedings not inconsistent with this opinion.

. Washington Rev.Code § 4.28.185(1) (1959) provides:

(1) Any person, whether or not a citizen or resident of this state, who in *349person or through an agent does any of the acts in this section enumerated, thereby submits said person, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of said acts:
(a) The transaction of any business within this state;
(b) The commission of a tortious act within this state;
(e) The ownership, use, or possession of any property whether real or personal situated in this state;
(d) Contracting to insure any person, property or risk located within this state at the time of contracting.

.Id. Subsections (2) and (3) provide:

(2) Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in this section, may be made by personally serving the defendant outside this state, as provided in ROW 4.28.180, with the same force and effect as though personally served within this state.
(3) Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over him is based upon this section.

. Freeman v. Navarre, 47 Wash.2d 760, 289 P.2d 1015, 1019 (1955); Tuggle v. Anderson, 43 Wash.2d 721, 263 P.2d 822, 823 (1953); Losli v. Foster, 37 Wash.2d 220, 222 P.2d 824, 832 (1950).

. Restatement (Second) of Agency § 2(3) (1958) states:

An independent contractor is a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other’s right to control with respect to his physical conduct in the performance of the undertaking. He may or may not be an agent.

.Id. § 1(3), at 11, comment e.

One may also be an employee of another, although not a servant in the master-servant sense under the common law understanding of this relationship. See Searfus v. Northern Gas Co., 472 P.2d 966, 968-969 (Alaska 1970).

. Restatement (Second) of Agency § 1(3), at 11, comment e (1958).

. Bertram v. Harris, 423 P.2d 909, 914 (Alaska 1967).