                                                                                                                       FILL -D
                                                                                                                             APPEALS
                                                                                                                         Is10t it
      IN THE COURT OF APPEALS OF THE STATE OF                                                WASHIlN,, T
                                                                                                    4,
                                                                                                                        10   ti l

                                                   DIVISION II

JOSHUA L. FAW, a single person,                                                     12         MIbD-
                                                                                                   M


                                    Appellant,


           AIM




TARA MILLAM, individually; JEFFREY L.                                       l J 1 ill C A t ` 01 ! I J ' 1 1 [ ]

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.


           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. Parked,      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



1
    Faw'   s claim against   Parker is   not at   issue in this   appeal.
No. 42840 -7 -II


court erred    in   failing   to   address whether   the Pasco       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 Pasco, which Tara Millam had given him several weeks earlier in

Oklahoma.       Parker' s Pasco 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.

                                                                                                         3, "
          On   January    19, 2010, Faw filed        a personal       injury   action against   Parker          Jane Doe"

                                                   Millam4,

Parker, Tara Millam,           and "   John Doe"               alleging that, as the Pasco' s owner, Tara' had

negligently entrusted it to Parker. The Millams moved for summary judgment, arguing that they

no longer owned the Pasco 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    Haul; ( 2) she and Parker had gone together to the Oklahoma Department of
               U-


Licensing,     surrendered         their Washington    driver'   s    licenses, and received Oklahoma driver' s



2
    Accordingly, we need not address Faw' s other arguments.
3
    Although Faw' s      complaint referenced a "       Jane Doe"          Parker, nothing in the record before us
reflects that Kyle Parker is or was married.

4
  Faw' s original complaint referred to Tara Millam' s former husband as " John Doe" Millam; but
his second amended complaint refers to Tara' s former husband as Jeffrey L. Millam.

    We use Tara Millam' s first name for clarity as necessary. We intend no disrespect.



                                                           2
No. 42840 -7 -II


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

                                                                                                                                           6
Paseo,     which    Tara drove only           once; (    5)   on   July   13, 2009,     she    had      written a "   bill     of sale "       that


                                                               7
purported    to    gift   the Paseo to Kyle Parker,                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
                                                                                                                                                  8
Toyota Paseo        and     instructed her insurer to              remove   the Paseo       and     Kyle Parker from her policy.


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
                                                                                            9; (
the Paseo), Parker was the owner                   at    the time of the         accident          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

6
    The Millams presented a copy of this bill of sale to the court.
7
    Tara   and    Parker declared that the document                       submitted     as a copy of the " bill                of sale"        was

authentic and was           a    true copy    of   the   original created         by   Tara Millam. CP at 14.                   The original
 bill of sale" had been in the Paseo' s glove compartment, that the police had seized the vehicle,
and that the document had been destroyed when the car was crushed. CP at 54.


8 The Millams also submitted an Allstate Insurance representative' s declaration that Tara Millam
had removed Parker and the Paseo from her insurance policy because she said that she no longer
owned it.

9
    The    superior       court   did   not   expressly       rule   on   the admissibility             of   the " Bill   of   Sale,"   which


purportedly reflected Tara' s gift of the Paseo to Parker.



                                                                      3
No. 42840 -7 -II


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).




10
     Accordingly, the superior court did not reach the issue of whether the Paseo was the Millams'
separate or community property.


11 Our court initially treated Faw' s notice of appeal as a petition for discretionary review under
RAP 6. 2. Our court commissioner later re- converted this petition to a notice of appeal.




                                                            rd
No. 42840 -7 -II


                          A. No Third Party Liability Based on Vehicle Ownership
                                                                                              12
       Faw first     argues    that,   under either   Oklahoma         or   Washington law,        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




12 Faw argues that Oklahoma law controls in this case, but that the outcome would be the same
even if Washington law was applied.



                                                                5
No. 42840 -7 -II

                                                                                                       13
in Oklahoma, Oklahoma had the "`                          most significant         relationship"'           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
                                                                   15
owner,         liable to      third   parties such as       Faw.         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.




13 Zenaida -Garcia,. 128 Wn. App. at 259 -60 ( quoting Martin, 114 Wn. App. at 828).

14 We note, however, that our conclusion would be the same even if Washington law controlled,
because both states follow the Uniform Commercial Code ( UCC) for sales and inter vivos gifts.
In   re   Marriage           ofZier,    136 Wn.      App.    40, 47, 147 P. 3d 624 ( 2006) ( citing             Sinclair v. Fleischman,
54 Wn.          App.      204, 207, 773 P. 2d 101 ( 1989)) ( " The                      elements      of a completed       gift are (   1)   an

intention        of     the   donor to     give; (   2)   a subject matter         capable of       delivery; (   3)   a delivery; and ( 4)
acceptance         by    the donee. ")        and Cluck v. Ford, 2007 OK CIV APP 3, 152 P. 3d 279 ( The elements
of an      inter   vivos gift are "(          1) a donor competent to make the gift, ( 2) freedom of will on his or
her   part, ( 3)        an    intention   by   the donor to     make      the    gift, (   4) a donee capable of accepting the gift,
and (     5)   delivery by        the donor      and acceptance         by   the donee." (      citing Davis v. Nat' l Bank of Tulsa,
1960 OK 151, 353 P. 2d 482)).


15 More specifically, Faw argues that the Millams failed ( 1) to sign a statement disclosing the
odometer           reading       as required      by      OKLA. STAT. tit. 47, §             1107   and §     1112, ( 2) to sign and to
notarize a release of                 interest   and   warranty     of   title   as required     by   OKLA. STAT. tit. 47 § 1107( a),
and (     3) to deliver the              signed    and     notarized     certificate        to Parker, the transferee.         See Br. of
Appellant          at   15 -16 ( Faw'     s   brief actually    cites    OKLA. STAT. tit. 47, §
                                                                        1007 ( governing parking for
physically disabled                   persons),   which      we    assume        meant §        1107 (
                                                                       governing requirements for
certificate holders in the event of sale or transfer of ownership of motor vehicle titles).



                                                                             G
No. 42840 -7 -II


           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- 40117; Heinrich, 73 Wn. App. at 162. 18


16
     OKLA. STAT. tit. 47, § 1107            requires "[       t] he purchaser or transferee of the vehicle [ to] present
the assigned certificate of title and the insurance security verification to the vehicle to the
Oklahoma Tax Commission,                   or one of     its   motor    license   agents."    OKLA. STAT. tit. 47, §        1107.

This statutory requirement obligated Parker, not Tara, to obtain insurance and, thus, had no
bearing on the Millams' liability for the Paseo after its transfer to Parker.

17 Under Oklahoma law, it is not necessary for the seller to deliver title before he or she conveys
ownership: "[       t]he sale of [an] automobile [ is] complete upon delivery of the car with the intent
to   sell."     Medico Leasing Co. v. Smith, 1969 OK 114, 457 P. 2d 548, 551 ( citing OKLA. STAT. tit.
12A, § 2 -401); see also Green v. Harris, 2003 OK 55, 70 P. 3d 866, 871 n.1 l ( certificates of title
are "merely intended to protect against theft and facilitate recovery and aid in enforcement of
motor  vehicle regulation "; legal ownership of title is not dispositive of liability for negligent

entrustment of a vehicle); City Nat. Bank & Trust Co. v. Finch, 205 OK 340, 237 P. 2d 869, 872

 1951); In        re   Foster, 1980 OK 37, 611 P. 2d 232, 234 ( "[ M] otor vehicle certificates of title in
Oklahoma are documents of convenience rather than documents of ownership. ").

18 Washington courts have taken an even stronger stand, holding:
              T] he transfer of a vehicle may be valid despite the failure to transfer the
              certificateproperly. Title and registration certificates are only rebuttable prima
              facie evidence of automobile ownership. In [ Washington] State, the [ Uniform
              Commercial Code] provisions, not the certificate of title statutes, govern who
              holds title to a vehicle.
Heinrich, 73 Wn.            App.    at   162 (   citations omitted); see also        Beatty   v.   Western Pac. Ins. Co., 74
Wn.2d         530,     542 -43,   445     P. 2d 325 ( 1968).            And under Title 62A RCW, which codifies
Washington' s           enactment of      the Uniform Commercial Code, "              title to goods passes from the seller
to the buyer in any           manner and on          any      conditions   explicitly   agreed on    by   the   parties."   RCW
62A.2- 401( 1).



                                                                    7
No. 42840 -7 -II


          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

                                       19
transfer   on     July   13, 2009.          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.


19
     This Bill    of   Sale     stated, "   I, Tara A. Millam do hereby give to Kyle S. Parker my 1992 Toyota
Paseo License # 713AVU VIN # JT2EL45F7NOO85520                                             as a gift        for the    sum of $0. 00."       CP at
89. Tara further declared that she had given Parker the original " bill of sale" and had kept a copy
for herself. CP at 289.
           Although, as we explain in the next section of this analysis, the superior court neither
expressly ruled nor relied on the admissibility of this document, we note that in its order of
summary judgment, the superior court included this bill of sale in the list of documents it had
considered        in making its decision.
                                     Assuming, therefore, that the superior court considered this
bill of sale, it would have been admissible at trial to show the parties' intent to convey the Paseo
from Tara to Parker. ( Under ER 1002, a party must produce the original of the document it seeks
to   admit   in   order    to   prove    its     contents.      But, because the bill of sale was admissible to show the
parties' intent, rather than to prove the document' s operable terms, ER 1002 would not prohibit
the superior court from admitting a copy in lieu of the original.)
       The language of the bill of sale strongly supported Tara' s statement in her declaration
that she intended to give the Paseo to Parker:
           The     elements of a completed gift are (                       1)   an   intention      of   the donor to      give; (   2) a
           subject       matter     capable         of   delivery; (    3)       a   delivery;    and (     4)   acceptance by the
           donee.
In   re   Zier, 136 Wn.           App.      at   47 ( citing Sinclair, 54 Wn.                  App.       at   207).      After purchasing the
Paseo, she delivered it to Parker, who accepted it by taking possession and driving it to
Washington. Nothing in the record suggests that Tara expected Parker to return the Paseo or that
there were any conditions attached to her gift; Parker' s declaration also supports the conclusion
that the Paseo was a gift from Tara to him and that he was not expected to return it. And again,
as we explain in the next section, Faw failed to support his allegations that the " Bill of Sale" was
a ruse    to defeat      liability.   Br.      of   Appellant     at   9.
No. 42840 -7 -II

                                                                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

                                                                                                                                          20
Sale   was manufactured              by   the defendants         after   the   accident     in   an attempt        to   avoid   liability "    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 superior court a definitive ruling on the admissibility of the bill of sale.
                                                                                                            21
On the contrary,         rather      than addressing its admissibility                 on   the   record,        the superior court ruled,


    There' s no evidence or reasonable inference that' s before the Court that anybody owned the
                                                                                                              22
vehicle on       the   date   of   the    accident,   August 3rd, 2009, but Kyle Parker. "                          VRP at 25.


            In   general, we       do     not review " a matter on which               the trial court        did       not rule."    Meresse v.


Stelma, 100 Wn.          App.        857, 867, 999 P. 2d 1267 ( 2000) ( citing RAP 2. 4( a)).                            See also RAP 2. 5( a).


Instead,     we    usually limit          our review       to   matters        on which      the trial    court         did   rule.   Snohomish


County      Builders Ass' n          v.   Snohomish Health Dist.,               8 Wn. App. 589, 593, 508 P. 2d 617 ( 1973).




20 Br. of Appellant at 9.

21 As we have previously noted, the only suggestion that the superior court may have impliedly
ruled on the bill of sale was its inclusion in its summary judgment list of documents considered.
22
     Despite Faw' s unsupported claim that the " Bill of Sale" was fraudulent, Br. of Appellant at 9,
as we have previously noted, solid evidence in the record supports the superior court' s finding
that Parker was the owner of the Paseo at the time of his collision with Faw.




                                                                          6
No. 42840 -7 -II


Here, Faw did not ask the superior court to strike the bill of sale; therefore, we do not further

consider this assignment of error.


           We hold, therefore, that there was no material issue of fact that Tara conveyed ownership

of the Paseo to Parker as a valid inter vivos gift before he drove it to Washington and collided


with Faw.23 Thus, Faw' s third party ownership liability claim against the Millams fails because

they did not own the Paseo at the time of the accident.

                         B. No Third Party Liability Based on Negligent Entrustment

           Faw next argues that the superior court erred by dismissing his negligent entrustment

claim.     His theory is that,    even    if Tara    was no   longer the   owner, (   1) Parker was incompetent, as a


matter of law, to operate the vehicle in Washington, a fact about which Tara was aware when she

entrusted the vehicle to Parker, because she knew that his Washington driver' s license was

suspended and that he had a criminal record; and ( 2) thus, the Millams should be held liable for

Parker'    s   having   caused   Faw' s injuries.      Faw, however, presented no evidence below to support


these factual assertions, so this argument also fails.


           The relatively narrow negligent entrustment theory of liability arises out of the
                                                      24
negligence chain of causation principle:




23 Faw also argues that a transfer of a vehicle between parties to a contract may be recognized as
valid between themselves, but not as to a third party. Br. of Appellant at 20. Because he cites no
authority to support this proposition, we do not further consider it. RAP 10. 3( a)( 6).
24
     The   general rule   in Washington is that "[ i] f the defendant' s original negligence continues and
contributes      to the   injury,"   as   it   might   when    a   transferor negligently    entrusts   a   vehicle, "   the

intervening      negligence of another         is                   It is not a superseding cause and does
                                                    an additional cause.

not relieve      the defendant     of  liability." Travis v. Bohannon, 128 Wn. App. 231, 242, 115 P. 3d
342 ( 2005) ( citing Doyle           v. Nor -West Pac. Co., 23 Wn. App. 1,        6, 594 P. 2d 938 ( 1979);
Eckerson v. Ford' s Prairie Sch. Dist. No. 11, 3 Wn.2d 475, 483 -84, 101 P. 2d 345 ( 1940)).



                                                               10
No. 42840 -7 -II


                A] n owner or other person in control of a vehicle and responsible for its use
            who entrusts the vehicle to another, may be held liable for damages resulting from
            the use of the vehicle.... where he knew, or should have known in the exercise of
            ordinary care, that the person to whom the vehicle was entrusted [ is reckless,
            heedless, or incompetent]."


Cameron          v.   Downs, 32 Wn.       App.       875, 878, 650 P. 2d 260 ( 1982) (      emphasis   added) (   quoting


Hulse      v.   Driver, 11 Wn.   App.     509, 514 -15, 524 P. 2d 255 ( 1974)).          This theory may apply even if

the actual owner of the vehicle is not the registered owner. Cameron, 32 Wn. App. at 878 ( citing

RESTATEMENT ( SECOND)             OF   TORTS § 390 ( 1965)).


            Regardless of whether Parker' s license to operate a vehicle in Washington was or was not

                                                                 25
actually        suspended at   the time   of   the   accident,        the record does not support Faw' s assertions that


Tara knew about this suspended license, Parker' s criminal record, or any propensity to drive

recklessly, heedlessly, or incompetently, essential facts for establishing the Millams' liability

under      a negligent     entrustment      theory.       Faw points only to Parker' s deposition answer to an

ambiguous compound question to support his assertion that Tara knew his Washington license


had been suspended.26 Faw ignores Tara' s later clarification that she knew only that Parker had


25
     In his deposition, Parker testified that his Washington license had been                    suspended "[ a] couple

years ago" but that he was licensed in Oklahoma. CP at 37.


26 See the following excerpts from Parker' s deposition:
                COUNSEL]       Now, I presume that Tara Millam knew you                          didn' t have a
            Washington license; is that correct?
                PARKER]        Yes.
CP at 37.
                COUNSEL]       Was [ Jeff Millam]          aware       that   you were unlicensed —or you were

            suspended to drive a vehicle in Washington?
                PARKER]        No.
                COUNSEL]       But Tara was?
                PARKER]        Yes.
CP    at   53.    Parker further testified that Tara knew he did not have a Washington license and that
she knew he had an Oklahoma license when she gave him the Paseo.


                                                                      11
No. 42840 -7 -II


surrendered his Washington license when he obtained his Oklahoma license and that she had no


knowledge that his Washington driving privileges had been suspended.27 Moreover, Faw offered
no competent evidence below to support his assertion that Tara knew or should have known that

Parker   was   incompetent to drive. These unsupported assertions are insufficient to raise genuine


issues   of material    fact to defeat summary judgment. KS Tacoma Holdings, LLC v. Shorelines


Hearings Bd., 166 Wn. App. 117, 126, 272 P. 3d 876, review denied, 174 Wn.2d 1007 ( 2012).

         Moreover, even taking the facts in the light most favorable to Faw on summary judgment,

the record shows that Tara not only did not know about Parker' s suspended license, but also had

reason   to believe that Parker    was a competent     driver: ( 1)   She had witnessed his driving first

hand when he and his brother had previously driven a U -haul trailer to help her move from

27
     Contrary to Faw' s assertions because of counsel' s compound question, Tara' s deposition
statements do not establish that she knew Washington State had suspended Parker' s driver' s
license.    During Tara' s deposition, she stated that she knew only that Parker had surrendered a
Washington license to receive an Oklahoma license; she denied knowing that Parker' s license
had beensuspended in Washington. See, e. g., the following exchange between Faw' s counsel

and Tara:
           COUNSEL]        Well, my understanding is that Kyle Parker was suspended from
           his privilege to drive in the state of Washington at that time, and, that is his
           testimony.
                   Do you have any facts to dispute that?
           TARA]         The only fact I have is that he surrendered a valid Washington
           license to get an Oklahoma license.
            COUNSEL]       But you don' t know it' s valid, do you?
           TARA]           No, sir, I don' t, but I would imagine that the state of Oklahoma
           would have noticed.
            COUNSEL]       Well, Mr. Parker specifically said you knew he was suspended
           from driving in Washington,      so   you   are   contradicting his testimony; is that
           correct?



            TARA]          All I know is we went down to the Department of Licensing at the
           same   time.   We both surrendered Washington driver' s licenses and were given
           our Oklahoma licenses.
CP at 170 -71.




                                                       12
No. 42840 -7 -II


Washington to Oklahoma,                  and (   2) together, she and Parker had turned in their respective


Washington driver' s licenses and had obtained Oklahoma licenses ( demonstrating only that she

knew he no longer had a Washington license but believed that he had a valid Oklahoma license

when she gave him the Paseo before he drove it to Washington).


              I] t is not the function of an appellate court to substitute its judgment for that of the trial

court or     to   weigh   the   evidence or     the credibility     of witnesses."       Davis   v.   Dep' t of Labor   & Indus.,


94 Wn.2d 119, 124, 615 P. 2d 1279 ( 1980) ( citing Beeson                           v.            Richfield Co., 88 Wn.2d
                                                                                         Atlantic -


499, 563 P. 2d 822 ( 1977)).             Even viewing the evidence in the light most favorable to Faw, we

hold that the record contains no genuine issue of material fact about whether Tara knew, or had


reason to know, that Parker was a reckless or incompetent driver. See City of Walla Walla v.

 401, 333. 44, 164 Wn.            App.   236, 256, 262 P. 3d 1239 ( 2011) (               citing Tae T. Choi v. Sung, 154

Wn.   App.        303, 313, 225 P. 3d 425,        cert.   denied,        U. S. —,        131 S. Ct. 925, 178 L. Ed. 2d 752


 2011)).


           Accordingly, we hold that Faw raised no genuine issue of material fact and, therefore, the

superior court properly granted the Millams' summary judgment dismissal of Faw' s negligent

entrustment claim.



                                          H. MILLAMS' MARITAL SEPARATION


             Finally, Faw argues that the Paseo should be considered community property of the

Millams and that we should reject their claims that their marriage was defunct at the time of the


Paseo'   s    purchase     and    Parker'   s   accident.    Because the superior court ruled that the Millams


neither owned the Paseo nor were liable for Faw' s injuries as a matter of law, it did not reach this




                                                                    13
No. 42840 -7 -II


issue. Because we affirm the superior court, we similarly do not reach this issue.

          We affirm.


          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




                                                  Hunt, J.
N17- -   r,.,,,.




                                                14
