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Gailey v. Whiting

Supreme Court of Idaho

December 18, 2014

BILL GAILEY, Plaintiff-Appellant,
v.
KIM WHITING, Defendant-Respondent

2014 Opinion No. 140

Page 1132

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Michael E. Wetherell, District Judge.

District court decision dismissing professional negligence claim, affirmed.

Martelle, Bratton & Associates, Boise, for appellant.

Merris & Naugle, PLLC, Boise for respondent.

BURDICK, Chief Justice. Justices EISMANN, J. JONES, HORTON and WALTERS, J., Pro tem, CONCUR.

Page 1133

ON THE BRIEFS

BURDICK, Chief Justice

This case arose out of a professional negligence claim relating to a life insurance policy. Bill Gailey purchased the life insurance policy from Kim Whiting on May 2, 1994, in Boise, Idaho. In August of 2011, Gailey cashed in the life insurance policy after receiving advice from Whiting to that end. Gailey suffered negative tax consequences from cashing in the policy and subsequently filed a complaint against Whiting in Ada County district court. Gailey alleged Whiting was negligent when he advised Gailey to cash in his policy without warning him of the potential tax consequences. Whiting subsequently moved the court to dismiss the action for lack of personal jurisdiction because Whiting no longer lived in Idaho, Gailey was a resident of Oregon, and the alleged tort did not occur in Idaho. The district court granted Whiting's motion and Gailey appealed to this Court. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 2, 1994, Gailey, a resident of Pendleton, Oregon, traveled to Boise, Idaho, to purchase a life insurance policy from Whiting. At that time, Whiting was an Idaho resident selling insurance for Western Reserve Life Insurance. From May 2, 1999, to September 9, 2011, Gailey received semi-annual statements from Western Reserve Life Insurance listing Whiting as its registered representative with an address in Eagle, Idaho.

In May of 2011, Whiting moved to Hawaii and became a resident and citizen of that state. Whiting surrendered his Idaho insurance agent's license on June 11, 2011, and subsequently converted his Hawaii insurance agent's license from non-resident to resident status.

After April of 2008, the parties had no contact for approximately three years. Then, in August of 2011, Gailey contacted Whiting for advice concerning his policy. Gailey contacted Whiting by dialing a phone number with a two-zero-eight area code and believed he was speaking with an insurance agent residing in Idaho. However, Whiting was not physically present in Idaho in August of 2011. Gailey alleges ...


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