WPI 352.04 Tortious Interference With Contract—Affirmative Defense—Legally Protected Interest

In a tortious interference with contract case, use this instruction with WPI 352.01.01 (Tortious Interference with Contracts—Burden of Proof on the Issues—With Affirmative Defenses) and WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions) when warranted by the evidence.

The instruction was approved in Deep Water Brewing, LLC v. Fairway Resources Ltd., 152 Wn.App. 229, 215 P.3d 990 (2009). With respect to the interests of the defendant, see Restatement (Second) of Torts § 767 cmts. d, f (1979); 44B Am.Jur.2d Interference § 29 (2017).

According to the Restatement (Second) of Torts section 773:

Restatement (Second) of Torts § 773 (1979).

Though the wording of the Restatement (Second) suggests that the issue should be treated as a definition of “improper,” assertion of a “bona fide claim” was a justification or privilege under the Restatement (First) of Torts section 773. Pursuant to Pleas v. City of Seattle, 112 Wn.2d 794, 804, 774 P.2d 1158 (1989), the issue should be treated as an affirmative defense. See also Deep Water, 152 Wn.App. at 263 (good faith is treated as a matter of privilege or justification to be raised as an affirmative defense by the defendant); see generally the Comment to WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions).

Washington courts concur that “one who in good faith asserts a legally protected interest of his own that he believes may be impaired by the performance of a contract between others is not guilty of tortious interference.” Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 375, 617 P.2d 704 (1980); Greensun Grp., LLC v. City of Bellevue, 7 Wn.App.2d 754, 777, 436 P.3d 397 (2019); Roy v. Cunningham, 46 Wn.App. 409, 416, 731 P.2d 526 (1986); see also Olympic Fish Prods., Inc. v. Lloyd, 93 Wn.2d 596, 611 P.2d 737 (1980) (corporate officer, acting in good faith, i.e., with intent to benefit the corporation, not liable for inducing corporation to violate contract); Moore v. Com. Aircraft Interiors, LLC, 168 Wn.App. 502, 512, 278 P.3d 197 (2012) (“Exercising in good faith one's legal interests is not improper interference.”); Schmerer v. Darcy, 80 Wn.App. 499, 910 P.2d 498 (1996) (trial court properly dismissed claim for tortious interference when lienholder was seeking to protect legitimate interest). Such a showing, where unrebutted, is dispositive. Moore, 168 Wn.App. at 511 (citing Brown, 94 Wn.2d at 375).

Similarly, if two parties have separate contracts with a third party, “each may resort to any legitimate means at his disposal to secure performance of his contract even though the necessary result will be to cause a breach of the other contract.” Dauphin v. Smith, 42 Wn.App. 491, 495, 713 P.2d 116 (1986); see also DeWolf & Allen, 16A Washington Practice, Tort Law and Practice § 23.8 (5th ed.).

When the defendant's interest is merely one of prospective economic advantage, not yet realized, the defendant has no such justification. Deep Water, 152 Wn.App. at 264. Thus, there is a clear distinction between prospective and current interests, and only interference based upon the latter is considered justified.

With regard to financial interests in the affairs of others, see Restatement (Second) of Torts § 769 cmt. b (1979), which provides that a defendant having a financial interest in the business of the person induced is automatically shielded from liability, provided that the defendant does not employ wrongful means and acts to protect his own interests. This automatic immunity, however, applies only to the tort of interference with prospective economic advantage, and not to the tort of inducing breach of contract.

Competition does not justify a competitor's inducing a breach of plaintiff's existing contract; under certain circumstances, however, competition can justify interfering with plaintiff's business expectancies, including plaintiff's existing contracts terminable at will. See Restatement (Second) of Torts § 768 (1979). See further discussion in the Comment to WPI 352.05 (Tortious Interference with Business Expectancy—Affirmative Defense—Competition).

For a list of other defenses enumerated by the second Restatement, see the Comment to WPI 352.03 (Tortious Interference—Improper Purpose—Improper Means—Definitions).