§44.1.5 Purpose and Procedure

• Jurisdiction: Washington

§44.1.5 PURPOSE AND PROCEDURE

Together with CR 9(k) and Chapter 5.24 RCW, as amended, CR 44.1 sets forth a comprehensive approach to pleading and proving foreign law. The burdensome requirement of pleadingforeign law in haec verba has been eliminated. See §44.1.3, above. Similarly, the requirement of proving foreign law in the same manner as facts are proved also has been eliminated. This comprehensive approach should streamline litigation of foreign law issues, decrease the burden on counsel, and minimize traps for the unwary.

(1)Pleading versus written notice

CR 9(k)(2) requires that pleadings contain notice of the applicability of the laws of a foreign country. Although the specifics of the foreign country's law need not be pleaded, the complaint, answer, or reply must contain the identity of the foreign jurisdiction.

For sister states' laws or the laws of other jurisdictions of the United States, no specific allegation is required in the pleadings by CR 9(k) (1). Indeed, CR 9(k)(l) provides three methods of indicating a party will rely on sister-state law: (1) alleging sufficient facts in the party's pleading to demonstrate reliance on sister-state law; (2) making an outright statement of reliance in the pleading; or (3) serving other reasonable notice. Erickson v. Sentry Life Ins. Co., 43 Wn.App. 651, 655, 719 P.2d 160, review denied, 106 Wn.2d 1008 (1986).

Courts have held that, in an appropriate factual and procedural context, notice of application of sister-state law may first be raised in response to a motion for summary judgment, Erickson, 43 Wn.App. 651, or in a defendant's motion and memorandum requesting summary judgment, Rice v. Dow Chem. Co., 124 Wn.2d 205,209-10,875 P.2d 1213 (1994). Any form of written notice will do, including allegations of fact suggesting the law of another jurisdiction may apply. Written notice not in a pleading, however, must be filed and served on all counsel. CR 9(k)(l); CR 5(d)(1). Similarly, compliance with CR 9(k)(l) is required if a party asserts federal law applies. Rodriguez v. Travelers Ins. Co., 54 Wn.App. 725, 728, 775 P.2d 973, review denied, 113 Wn.2d 1022 (1989).

In the absence of adequate pleading or notice, foreign law raised is presumed to be the same as Washington law. See, e.g., Int'l Tracers of Am. v. Estate of Hard, 89 Wn.2d 140, 144, 570 P.2d 131 (1977); Nissen v. Gatlin, 60 Wn.2d 259, 373P.2d491 (1962); In re Marriage of Landry, 103 Wn.2d 807, 811, 699P.2d214 (1985). If no...