The opinion
BAKES, Chief Justice,
concurring specially and dissenting in part:
I.
I concur in the Court’s analysis and conclusion that the libel claim was barred by the statute of limitations; that the breach of contract claim was not barred by the statute of limitations; that the trial court did not apply the correct standard for evaluating the claim for new trial or remittitur under I.R.C.P. 59(a)(5), requiring a remand and reevaluation of that claim; and that there was insufficient evidence to submit the issue of punitive damages to the jury, and thus that claim should have been dismissed.
II.
As to the Court’s conclusion that the negligence claim was not barred by the statute of limitations, that is not sufficient in itself to affirm the determination of liability based on negligence in this case. Here, the plaintiffs have not shown any legal duty owed by the bank other than the duty arising out of the contractual relationship over the VISA card. The breach of that duty was the breach of a contract and does not constitute a tort in the absence of showing some other legal duty established by law independent of the contract. “The mere negligent breach or non-performance of a contract will not sustain an action sounding in tort, in the absence of a liability imposed by law independent of that arising out of the contract itself,” Taylor v. Herbold, 94 Idaho 133 , 483 P.2d 664 (1971). As this Court stated in Steiner Corp. v. American Dist. Tele., 106 Idaho 787, 790 , 683 P.2d 435, 438 (1984), “However, by law Steiner can maintain an action in tort only when a breach of a tort duty is alleged, which duty arose separate and apart from the breach of contract. Just’s, Inc. v. Arrington Const. Co., 99 Idaho 462 , 583 P.2d 997 (1978); McAlvain v. General Ins. Co. of America, 97 Idaho 777 , 554 P.2d 955 (1976); Taylor v. Herbold, 94 Idaho 133 , 483 P.2d 664 (1971).” I believe that no duty, independent of the breach of the contractual relationship over the VISA card, has been shown and therefore the trial court erred in not dismissing the negligence claim against the bank.
III.
As to the Fair Credit Reporting Act claim raised by the appellant, the Court concludes that, even though the jury was not specifically advised of the qualified immunity defense which the federal act provides, nevertheless because the jury was instructed in Instruction No. 18 (dealing with libel) and Instruction No. 19 (dealing with negligence) that the defendant had to furnish the “false information with malice as defined in these instructions or willful intent to injure plaintiffs” (Instruction No. 19), that there was no error in not applying the federal Fair Credit Reporting Act. However, the court’s Instruction No. 17, relating to the breach of contract claim, did not instruct the jury that there was a qualified immunity under the federal Act with regard to the contract claim, nor did the contract instructions advise the jury that the defendant would have had to act with malice in order to be liable on the contract claim, as the Fair Credit Reporting Act appears to require. Admittedly, Instruction No. 18 (dealing with libel) did require that the defendant act with malice. However, the court has set aside the libel claim on the ground that it was barred by the *689 statute of limitations. The court further holds that because the trial court’s Instruction No. 19 (dealing with negligence) stated that the plaintiff must prove “that the defendant was negligent, and the negligence involves the furnishing of false information with malice as defined in these instructions or willful intent to injure the plaintiffs,” the defendant received the qualified immunity required by the Fair Credit Reporting Act.
However, the trial court erred in submitting the negligence claim to the jury for the reasons set out in Part II above. Secondly, Instruction No. 19 is erroneous and internally inconsistent when it states that “the defendant was negligent and the negligence involves the furnishing of false information with malice as defined in these instructions or willful intent to injure the plaintiff.” “Malice” was defined in Instruction No. 13 as “something that was said, made or done with knowledge that it was false or with reckless disregard of whether it was false or not.” Negligence and malice (reckless disregard) connote entirely different levels of culpability, and to say that something must be proved to be both negligence and “malice” is internally inconsistent. Even assuming that the negligence issue was a proper issue in the case, I feel reasonably certain that Instruction No. 19 does not properly advise the jury that the defendant had a qualified immunity under the Fair Credit Reporting Act and that the jury should have been instructed on the qualified immunity. Merely instructing the jury that they must find negligence and malice was not adequate to inform the jury that the federal statute granted a qualified immunity.
Erroneously submitting the negligence claim to the jury, as set out in Part II, coupled with the fact that the court’s instructions concerning the plaintiff’s contract claim made no reference to the qualified immunity contained in the Fair Credit Reporting Act, makes me conclude that the judgment of the trial court should be reversed entirely and the matter remanded for a new trial solely on the plaintiff’s contract claim. On retrial the jury should be specifically instructed that the Fair Credit Reporting Act grants a qualified immunity to the bank “except as to false information furnished with malice or willful intent to injure such consumer.”
However, since the Court is upholding two of the three theories of liability — contract and negligence — I agree that because the jury did not apportion the $20,000 in compensatory damages among the three theories of liability in which they found in favor of the plaintiffs, there is no basis to “impugn the verdict of the jury” as to damages where the damages are supported by one or more legal theories of liability which we have affirmed. White v. White, 94 Idaho 26 , 480 P.2d 872 (1971) (“This Court will affirm the judgment below if it may be done on any theory supported by competent evidence.”); Fischer v. Fischer, 92 Idaho 379 , 443 P.2d 463 (1968) (“Where a judgment of the trial court is based on alternate grounds, if the judgment can be affirmed on any one of the grounds the fact that the alternative ground may have been in error is of no consequence and may be disregarded. To state this principle in another manner, this Court must uphold the finding and judgment of the trial court if it is capable of being upheld on any theory.”). However, in view of the erroneous instruction regarding the claims in Parts II and III, I believe the judgment should be reversed in its entirety.