102 Wash. App. 349 | Wash. Ct. App. | 2000
— An insurance company that pays benefits to a crime victim suffers a loss as a direct result of the crime, and a sentencing court may order the offender to pay restitution to the insurance company without regard to whether the company could pursue a civil subrogation claim.
FACTS
Douglas Ewing and Susan Ewing were married for 12 years. They separated on December 15, 1997. By April 1998, both had signed a property agreement under which Susan Ewing would receive, among other things, the family home and real property, the household goods and furnish
Ewing was last to sign, and before the agreement was delivered to Susan Ewing or filed with the court, Ewing went to the home of his brother’s wife, where Susan and their children were visiting. He physically assaulted Susan and threatened to kill her. Ewing next went to the family home, kicked in the door, poured gasoline throughout, and lit a fire. Neighbors heard the smoke alarm and saw Ewing leave. The house was severely burned and is no longer habitable.
Safeco Insurance Company paid Susan Ewing $242,035.89 for damages to the home and personal property, and for temporary housing. To facilitate Susan’s settlement with Ewing as to other property issues, including her receipt of the Spokane property, Safeco waived its subrogation interest against Ewing. However, Safeco expressly retained its right to seek restitution in the criminal sentencing process. In consideration of Ewing’s conveyance of the Spokane property to her, Susan Ewing released Ewing from all claims, losses, and damages that she may have against him.
Ewing pleaded guilty to first degree arson and felony harassment. The sentencing court ordered him to pay $41,000 in restitution to Safeco.
DISCUSSION
Ewing challenges the trial court’s restitution order. He argues that principles of subrogation preclude such an award, because Safeco waived its subrogation right against him, his wife released him from civil liability, and he is
The Sentencing Reform Act of 1981 (SRA) requires the court to impose restitution as part of an offender’s sentence, except in extraordinary circumstances.
Ewing argues Safeco was not a victim because Safeco did not suffer a loss as a direct result of Ewing’s crime. Ewing acknowledges that when insurance companies pay benefits to injured insureds, the companies are appropriate recipients of restitution.
We do not address whether Ewing is correct about Safeco’s subrogation rights, because we reject his premise. The court’s authority to order restitution in a criminal proceeding is not dependent upon the viability of related civil claims.
The concepts of the civil law are compensatory, not punitive, and are not easily imported into the penal statutes. The SRA authorizes, for example, that restitution may be ordered in an amount up to twice the defendant’s gain, or double the victim’s loss.
Our conclusion is consistent with the reasoning of the Supreme Court in State v. Davison,
Ewing relies upon State v. Martinez
Davison’s interpretation of the language of RCW 9.94A.142 is best understood under a quasi-subrogation theory — the employer stood in the shoes of the assault victim, who could clearly have recovered lost wages under the statute if the employer had not paid them . . . .[20 ]
We are uncertain what the Martinez court meant by “quasi-subrogation theory,” but its reference to subrogation as an analogy is not the first such reference, nor the first to cause some confusion. In State v. Barnett,
To the extent the Martinez court sought to invoke principles of subrogation for more than their value as analogy, we disagree; but we are extremely doubtful the Martinez court had any such purpose in its discussion of Davison. First, Davison did not utilize a subrogation theory in its analysis, but simply discussed principles of causation. Second, the Martinez court’s point was entirely unrelated to subrogation. The court held only that where the loss claimed by the insurer was confined to its investigation costs, the loss was not within the class of losses for which the statute authorizes restitution.
Ewing’s reliance on Martinez in misplaced. Martinez does not stand for the proposition that the civil subrogation rules
Ewing’s contentions are similar to another argument we recently rejected. In holding that the “American rule” barring recovery of attorney fees in a civil suit does not preclude restitution for attorney’s fees expended in related civil litigation to recover damage caused by defendant’s crime, this court stated, “[w]e fail to see how a rule designed to regulate recovery of attorney fees in civil cases has any application in deciding an award of restitution in a criminal proceeding.”
Our interpretation of the restitution statute finds additional support in case law. Washington courts have extended restitution to recipients other than immediate victims under restitution statutes containing slightly different language.
As the Barnett court observed: “[A] defendant should not profit simply because the victim had the foresight to contract with a third party for full or partial protection of any loss or damage caused by criminal behavior.”
We hold that the complexities of the subrogation doctrine have no place in a restitution analysis. Safeco incurred a financial loss as a direct result of Ewing’s arson. RCW 9.94A.142 authorizes restitution to Safeco.
Affirmed.
Webster and Appelwick, JJ., concur.
In calculating the amount of the award, the court set the value of the home at $242,000, the amount Safeco paid to Susan Ewing. The court credited Ewing $121,000 for conveying his half interest in the family home to Susan Ewing, and $80,000 for conveying his half interest in the Spokane property to her. The court ordered Ewing to pay the difference, $41,000, to Safeco. Ewing does not challenge the amount of the restitution award.
The statute provides:
The court shall order restitution whenever the offender is convicted of a felony that results in injury to any person or damage to or loss of property, whether the offender is sentenced to confinement or placed under community supervision, unless extraordinary circumstances exist that make restitution inappropriate in the court’s judgment. The court shall set forth the extraordinary circumstances in the record if it does not order restitution.
RCW 9.94A. 120(19).
State v. Edelman, 97 Wn. App. 161, 166, 984 P.2d 421 (1999), review denied, 140 Wn.2d 1003 (2000).
State v. Davison, 116 Wn.2d 917, 919, 809 P.2d 1374 (1991).
RCW 9.94A.142(1).
State v. Martinez, 78 Wn. App. 870, 882, 899 P.2d 1302 (1995).
RCW 9.94A.030(40). The SRA does not define “person.” See RCW 9.94A.030.
See, e.g., State v. Barnett, 36 Wn. App. 560, 562, 675 P.2d 626 (1984).
Elaine M. Rinaldi, Apportionment of Recovery Between Insured and Insurer in a Subrogation Case, 29 Tort & Ins. L.J. 803, 803 (1994).
Johnny’s Seafood Co. v. City of Tacoma, 73 Wn. App. 415, 422, 869 P.2d 1097 (1994).
In support of this proposition, Ewing cites Johnny’s Seafood Co., 73 Wn. App. at 422 (holding that generally, where an insurer has paid a loss to one insured under a policy it cannot collect, as a subrogee, from a coinsured, even when the coinsured’s negligence caused the loss). Johnny’s Seafood Co. and the cases on which it relies do not consider intentional acts. Ewing does not explain how his act of setting fire to the property could be construed as negligence.
See RCW 9.94A. 142(1).
State v. Edelman, 97 Wn. App. 161, 165, 984 P.2d 421 (1999), review denied, 140 Wn.2d 1003 (2000).
See State v. Barr, 99 Wn.2d 75, 79, 658 P.2d 1247 (1983); Barnett, 36 Wn. App. at 563.
116 Wn.2d 917, 809 P.2d 1374 (1991).
Id. at 921.
78 Wn. App. 870, 899 P.2d 1302 (1995).
Id. at 882.
Id. at 882.
Id. at 883.
36 Wn. App. 560, 562, 675 P.2d 626 (1984).
42 Wn. App. 399, 711 P.2d 372 (1985).
Id. at 402.
State v. Christensen, 100 Wn. App. 534, 538, 997 P.2d 1010 (2000).
See State v. Barr, 99 Wn.2d 75, 658 P.2d 1247 (1983) (as condition of probation, restitution to widow and child of victim of negligent homicide); State v. Sanchez, 73 Wn. App. 486, 869 P.2d 1133 (1994) (juvenile required to pay restitution to insurer contractually obligated to compensate insuredMctim because such restitution serves the purpose of Juvenile Justice Act of 1977); State v. Forbes, 43 Wn. App. 793, 719 P.2d 941 (1986) (as condition of probation, restitution to county department of public safety that supplied undercover detective with money to spend at illegal gambling establishment permissible); State v. Jeffries, 42 Wn. App. 142, 709 P.2d 819 (1985) (restitution award to Department of Labor and Industries for payment of disability and medical expenses to assault victim held permissible under suspended sentence statute).
Barnett, 36 Wn. App. at 562.
Id. at 563.