author: JOHNSON, J.

text:
    Lazuri DANIELS, individually, and on behalf of all those similarly situated, Petitioner, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 96185-9
    Supreme Court of Washington.
    Filed JULY 03, 2019 May 7, 2019
    Matthew James Ide, Ide Law Office, 7900 SE 28th Street, Suite 500, Mercer Island, WA 98040-6004, for Petitioner.
    Frank Falzetta, Jennifer Hoffman, Shephard Mullin Richter & Hampton LLC, 333 South Hope Street, 43rd Floor, Los Angeles, CA 90071, Joseph D. Hampton, Betts, Patterson & Mines, P.S., 701 Pike Street, Suite 1400, Seattle, WA 98101-3927, for Respondents.
    Linda Blohm Clapham, Michael Barr King, Carney Badley Spellman PS, 701 5th Avenue, Suite 3600, Seattle, WA 98104-7010, for Amicus Curiae (American Property Casualty Ins. Association, National Association of Mutual Insurance Companies).
    Valerie Davis McOmie, Attorney at Law, 4549 NW Aspen Street, Camas, WA 98607-8302, Daniel Edward Huntington, Richter-Wimberley PS, 422 W. Riverside Avenue, Suite 1300, Spokane, WA 99201-0305, for Amicus Curiae (Washington State Association for Justice Foundation).
    Marta Uballe DeLeon, Office of the Attorney General, 1125 Washington Street SE, P.O. Box 40100, Olympia, WA 98504-0100, for Amicus Curiae (Washington State Insurance Commissioner).
   JOHNSON, J.

¶1 This case concerns whether a first-party insurer, upon obtaining a partial recovery in a subrogation action, is required to reimburse its fault-free insureds for the full amount of their deductibles before any portion of the subrogation proceeds can be allocated to the insurer. Lazuri Daniels brought claims and sought class action status in a lawsuit against State Farm Mutual Automobile Insurance Company arguing that by failing to fully reimburse its insureds for their deductibles after recovering in a subrogation action, State Farm violates both Washington law and its own insurance policy. The trial court dismissed the claims under CR 12(b)(6), and the Court of Appeals affirmed the dismissal. We reverse and remand to the trial court for further proceedings.

FACTS

¶2 On July 25, 2015, Daniels was involved in a three-vehicle wreck near Federal Way, Washington. At the time of the wreck, Daniels was insured by State Farm with a policy that included a $500 deductible. Daniels's vehicle was at the center of the wreck; the driver of the car that hit her from behind was insured by GEICO, and the driver in front of her was insured by Liberty Mutual. State Farm paid the portion of the repair costs that exceeded Daniels's deductible. State Farm then sought recovery of its payment from GEICO, which agreed that its insured was 70 percent at fault and reimbursed State Farm for that portion of the total cost of the repairs. From these proceeds, State Farm reimbursed Daniels for 70 percent of her deductible.

¶3 Daniels brought a lawsuit and sought class action status against State Farm alleging that, under both its own policy and Washington law, State Farm is entitled to recoup its money only after its insureds are fully compensated for their losses, including the full deductible, and that by allocating subrogation recoveries to itself before it has returned its insureds' full deductibles, State Farm violates this requirement. Daniels asserted claims for breach of contract, bad faith, and conversion. State Farm filed a motion to dismiss under CR 12(b)(6), relying on Averill v. Farmers Insurance Co. of Washington, 155 Wash. App. 106, 229 P.3d 830 (2010), where the Court of Appeals held that the made whole doctrine does not extend to this type of subrogation action, as well as WAC 284-30-393, which requires subrogated insurers to return deductibles "less applicable comparable fault." Finally, State Farm argued that nothing in its policy language required it to return the full amount of deductibles before allocating to itself the proceeds of a direct subrogation action.

¶4 The trial court granted State Farm's motion to dismiss, and the Court of Appeals affirmed.

Daniels v. State Farm Mut. Auto. Ins. Co., 4 Wash. App. 2d 268, 421 P.3d 996 (2018). Daniels petitioned this court, and we granted review. Daniels v. State Farm Mut. Auto. Ins. Co., 192 Wash.2d 1001, 430 P.3d 261 (2018).

ISSUES

1. Whether Washington's made whole doctrine requires that insurers allocate subrogation proceeds to the full reimbursement of its insureds' deductibles prior to allocating any portion of the proceeds to itself.
2. Whether, in the absence of an acknowledgement that an insured bears comparative fault, WAC 284-30-393 requires an insurer to recover and return its insured's full deductible.
3. Whether State Farm's policy language required that it allocate subrogation proceeds to the full reimbursement of its insureds' deductibles prior to allocating any portion of the proceeds to itself.

ANALYSIS

¶5 "Subrogation is the right that one party has against a third party following the payment, in whole or in part, of a legal obligation that ought to have been met by such third party." 2 ALLAN D. WINDT, INSURANCE CLAIMS AND DISPUTES § 10:5, at 10-23 (6th ed. 2013). Its common law foundation applies as an "equitable doctrine the essential purpose of which is to provide for a proper allocation of payment responsibility." Mahler v. Szucs, 135 Wn.2d 398, 411, 957 P.2d 632 (1998). In the insurance context, the "doctrine of subrogation enables an insurer that has paid an insured's loss pursuant to a policy ... to recoup the payment from the party responsible for the loss." Elaine M. Rinaldi, Apportionment of Recovery between Insured and Insurer in a Subrogation Case, 29 TORT & INS. L.J. 803, 803 (1994). The right to pursue such a claim against the at-fault party is often included in insurance policies, as it was in this case.

¶6 Generally two means exist through which a subrogated insurer can recover from a responsible third party: (1) the insured brings a claim against the third party and the insurer seeks reimbursement from the insured's recovery, or (2) the insurer can "stand in the shoes" of its insured and pursue a claim against the responsible party directly. In either situation, "[t]he potential for conflict of interest abounds." Mahler , 135 Wash.2d at 414, 957 P.2d 632. This is because if the insured still has uncompensated injuries, both the insurer and insured will generally be looking to recover from the same third party, and that party's own insurance and assets are not always sufficient to cover both claims. In such circumstances, there is a high potential for conflict between insureds who wish to be compensated for the full extent of the damages they have suffered, and first-party insurers who expect to be reimbursed for amounts they have advanced to the insured.

¶7 Daniels argues that insureds' right to be fully compensated for their losses, including full reimbursement for deductibles, takes priority over an insurer's interest in recouping its payments through a direct subrogation action. Daniels asserted in her complaint that State Farm's conduct violates both its own policy as well as Washington law. Three separate legal theories are presented for requiring State Farm to return its insureds' full deductibles prior to allocating to itself any portion of subrogation proceeds. These include (a) the common law made whole doctrine, (b) Washington insurance regulations, and (c) State Farm's own policy language. The trial court dismissed all of Daniels's claims under CR 12(b)(6) and the Court of Appeals, in a divided opinion, affirmed. Daniels , 4 Wash. App. 2d at 278, 421 P.3d 996. Judge Becker dissented, asserting that Averill was wrongly decided and should be disavowed, and concluding that all three of Daniels's theories should survive a motion to dismiss under CR 12(b)(6).

¶8 Whether a case is properly dismissed under CR 12(b)(6) is a question of law that we review de novo. San Juan County v. No New Gas Tax , 160 Wash.2d 141, 164, 157 P.3d 831 (2007). Such a dismissal is appropriate where "there is not only an absence of facts set out in the complaint to support a claim of relief, but there is no hypothetical set of facts that could conceivably be raised by the complaint to support a legally sufficient claim." Worthington v. Westnet, 182 Wash.2d 500, 505, 341 P.3d 995 (2015) (citing No New Gas Tax, 160 Wash.2d at 164, 157 P.3d 831 ). Given this high standard, CR 12(b)(6) motions should be granted " 'sparingly and with care' " where "plaintiff's allegations show on the face of the complaint an insuperable bar to relief." No New Gas Tax, 160 Wash.2d at 164, 157 P.3d 831 (quoting Tenore v. AT &T Wireless Servs., 136 Wash.2d 322, 330, 962 P.2d 104 (1998) ). Here, dismissal under CR 12(b)(6) was proper only if there is no set of facts that could conceivably be drawn from the complaint to support any one of the three legal theories involved. We begin our analysis with Daniels's claims under the common law made whole doctrine.

The Made Whole Doctrine

¶9 In addressing conflicts between subrogated insurers and injured insureds, we have generally established priority for the interests of the insureds through the made whole doctrine. In Thiringer v. American Motors Insurance Co., we articulated this doctrine as a general rule that

while an insurer is entitled to be reimbursed to the extent that its insured recovers payment for the same loss from a tort-feasor responsible for the damage, it can recover only the excess which the insured has received from the wrongdoer, remaining after the insured is fully compensated for his loss.

91 Wash.2d 215, 219, 588 P.2d 191 (1978). In other words, an insurer can obtain reimbursement from an insured who has been more than fully compensated for their injuries and has actually received excess compensation from having received payments from both the first-party insurer and a third party. In these circumstances an insurer can seek reimbursement from its insured, as the insured is not entitled to a double recovery. But an insurer generally cannot obtain a recovery if its insured has uncompensated damages. We held that this rule "embodies a policy deemed socially desirable in this state," as it prioritizes the indemnification of victims of automobile accidents, Thiringer, 91 Wash.2d at 220, 588 P.2d 191, and, in doing so, helps to reduce the potential conflicts between insurers and insureds.

¶10 As correctly recognized in Judge Becker's dissent below, the approach we took in Thiringer aligns with Professor Robert Keeton's "Fourth Rule" for allocating proceeds of a recovery from a third-party tortfeasor. "Out of the recovery from the third party the insured is to be reimbursed first, for the loss not covered by insurance, and the insurer is entitled to any remaining balance, up to a sum sufficient to reimburse the insurer fully, the insured being entitled to anything beyond that." ROBERT E. KEETON, BASIC TEXT ON INSURANCE LAW § 3.10(c)(2), at 161 (1971).

¶11 The issue before us is how, under the circumstances of this case, the made whole doctrine applies. Daniels argues that we should prioritize an insured's recovery in any type of subrogation scenario, including where the insurer pursues a direct subrogation action against a responsible third party. Under this broad view of the doctrine, an insurer like State Farm would have to ensure that its subrogation recovery is first allocated to any uncompensated portion of its insured's loss before the insurer allocates any proceeds to itself. State Farm, on the other hand, asserts that the doctrine is specifically confined to situations where the insurer seeks to be reimbursed from the insured's own recovery from a third party and does not apply in situations where an insurer pursues a direct subrogation action to recoup its payments. Under this view, the insurer would be able to allocate the proceeds recovered in the subrogation action to itself before its insured has been fully compensated for their loss. The trial court agreed with State Farm and held that under Averill, the made whole doctrine does not provide Daniels a claim for relief.

¶12 Averill was decided by the Court of Appeals with similar facts as the case before us. Two drivers were involved in a wreck and the drivers' insurers determined the two were equally at fault. After Farmers Insurance Company of Washington received a 50 percent recovery and reimbursed Averill for half of her deductible, she sued the insurer, claiming that among other things, the common law made whole doctrine required a full return of her deductible before Farmers could allocate any proceeds to itself. The Court of Appeals rejected this argument, holding that the made whole doctrine limits an insurer's recovery only when it seeks reimbursement from its insured and does not extend to situations where the insurer pursues its subrogation claim directly. The court went on to hold that this result is consistent with the purpose of deductibles, which represent "the amount of risk retained by the insured," and that to allow Averill to recover her deductible would change the contract to one without a deductible, which the court was "not at liberty" to do. Averill, 155 Wash. App. at 114, 229 P.3d 830. We disagree.

¶13 The analysis in Averill runs counter to the principles our cases have established addressing the made whole doctrine. We have not confined this doctrine to situations involving reimbursement from the insured; on the contrary, we have expressly stated that it extends further. As Judge Becker correctly recognized in her dissent below, in Sherry v. Financial Indemnity Co. we established a broader view that the made whole doctrine applies whenever an insurer seeks "an offset, subrogation , or reimbursement for PIP [personal injury protection] benefits already paid." 160 Wash.2d 611, 618, 160 P.3d 31 (2007) (emphasis added). Furthermore, an analysis of Thiringer and Sherry reveals that we have not limited the doctrine in the manner asserted by the Averill court.

¶14 In Thiringer, the insured was injured in a car wreck and sought payment from his insurer after the at-fault driver was unable to compensate him for his full general and special damages. His insurer denied his claim, arguing that the recovery from the at-fault driver was sufficient to cover his insured special damages and the recovery should be allocated to those damages first, rather than to his uninsured general damages. We rejected that argument and held that Thiringer had "a right to expect that the payments promised under this coverage will be available to him," and established a rule that insureds such as Thiringer are "entitled to be made whole." Thiringer, 91 Wash.2d at 220, 588 P.2d 191. This meant that he could first allocate the payments from the at-fault party to his general damages and then seek recovery from his own insurer for his special damages.

¶15 The important point here is that the insurer in Thiringer was not seeking to be reimbursed from a recovery; instead, it was seeking to avoid payment in the first place by controlling how the recovery from the third party was allocated. We held that the made whole doctrine applied and allowed the insured to allocate his proceeds in a manner that would bring him the closest to being made whole. Given that Thiringer did not involve a claim for reimbursement, any argument that it limited the made whole doctrine to such claims fails.

¶16 In Sherry, we expanded on this reasoning. Sherry involved a pedestrian who was struck by a car driven by an uninsured motorist. The pedestrian was insured by Financial Indemnity Company (FIC) under both an underinsured motorist (UIM) policy and a PIP policy. FIC paid for medical benefits and lost wages under the PIP policy, then claimed an offset when it paid UIM benefits, seeking to reduce its UIM payment to account for the PIP payments it had already made, as well as to account for comparative fault of the insured. We held that FIC could not claim an offset until its insured had been fully compensated for his damages, as he had a right to be made whole, and that full compensation in this context referred to compensation for the insured's full actual damages with no reduction based on comparative fault. Sherry, 160 Wash.2d at 625, 160 P.3d 31.

¶17 Sherry involved no claim for reimbursement; there was no third party from which FIC could be reimbursed because it was FIC that was paying under both policies. Instead of seeking reimbursement, the insurer was seeking to minimize its payments through an offset, and we held that it could not do so when its insured had yet to be made whole. Neither Thiringer nor Sherry involved claims for reimbursement by the insurer, so there appears to be no support for the assertion in Averill that the made whole doctrine is so confined.

¶18 We also disagree with the Averill court's reasoning that allowing an insured to recover their deductible from a subrogation recovery would change the insurance contract to one without a deductible. The court reasoned that the deductible was the amount Averill contracted to be out of pocket before her insurance would be triggered, but its analysis did not fully explain how this creates a conflict with application of the made whole doctrine to subrogation claims. The idea would appear to be that an insured's premium is, among other things, based on the amount of risk the insured retains in the form of a deductible. Thus, by receiving back her deductible without any change to her premium, Averill would receive a windfall. She would have a lower premium that was based, in part, on her having to pay a deductible, yet application of the made whole doctrine would relieve her of being out-of-pocket for that deductible. Once again, we disagree.

¶19 The focus on deductibles as contracted-for risk is only one way of viewing deductibles; they also act to "eliminate insurance coverage for losses that are small enough that they are better borne by the insured ... because the administrative expenses for an insurer are substantial in relation to the amount of such losses." ROBERT E. KEETON & ALAN I. WIDISS, INSURANCE LAW § 3.10, at 240 (1988). Thus, an insured pays a higher premium for a lower deductible to make up for the increased administrative costs that come with the insurer having to cover smaller claims. Requiring that an insurer reimburse insureds for deductibles as part of the made whole doctrine does not interfere with this purpose and does not rewrite the policy to one with no deductible. Where insureds sustain a loss that does not exceed the amount of their deductible, they will still receive no benefits under the policy.

¶20 The analysis in Averill is in conflict with the policy underlying the made whole doctrine, and to the extent the Court of Appeals held the made whole doctrine is confined to reimbursement claims, we overrule it. Under Thiringer and Sherry , no distinction exists based on who brings a claim against a responsible third party. Since the claim seeks recovery of the insured's losses, that the insurer brings the subrogation claim makes no difference in the application of the made whole doctrine-the principles of the doctrine apply equally and the result is the same. Whether in the context of a reimbursement request, offset, or direct subrogation action, a fault-free insured must be made whole for their entire loss before an insurer may offset or recover its own payments. Stated another way, the proceeds of any recovery from a third-party tortfeasor, whether in a subrogation action or otherwise, must be allocated in such a way as to first make the insured whole. Daniels's complaint asserted that State Farm fails to abide by this requirement, which states a valid claim supported by the common law made whole doctrine and survives a CR 12(b)(6) motion to dismiss.

Insurance Regulations

¶21 We turn next to Daniels's assertion that State Farm violates Washington's insurance regulations. We interpret regulations under the same rules used in statutory construction. Mader v. Health Care Auth., 149 Wash.2d 458, 472, 70 P.3d 931 (2003). In doing so, we seek "to ascertain and give effect to its underlying policy and intent." Cannon v. Dep't of Licensing, 147 Wash.2d 41, 56, 50 P.3d 627 (2002). If a regulation is clear on its face, then its meaning should be derived from the plain language; however, if the regulation is subject to two or more reasonable interpretations, we will resort to principles of statutory construction, legislative history, and relevant case law to assist in resolving the ambiguity. We construe an ambiguous rule or regulation to effectuate the intent of the agency. Cannon, 147 Wash.2d at 57, 50 P.3d 627.

¶22 The regulation at issue here is WAC 284-30-393, the relevant portion of which reads, "The insurer must include the insured's deductible, if any, in its subrogation demands. Any recoveries must be allocated first to the insured for any deductible(s) incurred in the loss, less applicable comparable fault." The parties agree that this requires an insurer to seek recovery of its insured's deductible as part of any subrogation claim against a third party and that the insurer must return some portion of the deductible to the insured. The dispute between the parties is over the meaning of the final four words, "less applicable comparable fault."

¶23 Daniels argues that "applicable comparable fault" refers to fault that is attributable to the insured. Under this interpretation, the disputed portion of the regulation is confined to circumstances where there is a determination that the insured is partially at fault. State Farm, on the other hand, contends there is nothing in the language that limits "applicable comparable fault" to fault that has been attributed to the insured. It would have us interpret the regulation such that the insurer need reimburse its insured only for a portion of the deductible equal to the fault of the party from which it has recovered.

¶24 In its amicus brief, the Office of the Insurance Commissioner (OIC) points us to a final cost benefit analysis issued during the rule making process to amend WAC 284-30-393 to its current form. This analysis explains that the party who petitioned for the amendment, Farmers Insurance, specifically asked that the rule be amended so "insurers may deduct the amount of an insured's comparative fault from reimbursement for their deductible." Clerk's Paper's (CP) at 33 (emphasis added). The OIC's analysis then goes on to state repeatedly that the amendment is meant to do just that, to allow reductions to the reimbursement of deductibles based on the insured's fault. See CP at 36 (stating that the amendment will provide "greater clarity in resolving claims ... where the policyholder is partially at fault" (emphasis added)).

¶25 We interpret the regulation in the manner intended by the agency, and in doing so, it is evident that Daniels raised a valid claim regarding violation of the WAC. Accepting the facts alleged in her complaint as true, there appears to have been no assertion that Daniels herself bore any fault for the wreck, yet State Farm withheld 30 percent of her deductible. Daniels also alleges that this conduct is consistent with State Farm's dealings with its other insureds. Such assertions support the claim that State Farm violates WAC 284-30-393 with regard to the asserted class.

Policy Language

¶26 Daniels's final argument, and the one focused on most by the Court of Appeals, concerns State Farm's own policy language. The relevant language is in the "General Terms" section of the policy and states:

If we are obligated under this policy to make payment to or for a party who has a legal right to collect from another, then the right of recovery of such party passes to us ....
....
Our right to recover our payments applies only after the insured has been fully compensated for the bodily injury, property damage or loss .[ ]

CP at 80. Daniels argues that the first section creates a basic subrogation right, allowing State Farm to seek repayment from a responsible party after it has made a payment to its insured. She then argues that the second section controls the allocation of proceeds from a successful subrogation claim and requires that the insured be made whole for any remaining loss before State Farm can repay itself for its insurance payments.

¶27 Daniels points out that the second section uses the word "our" when discussing the payments to which State Farm gains the right to recover, while the first section does not contain this limiting word. Thus, Daniels argues, the first section must be read as granting State Farm a very general right of recovery, allowing it to stand in the shoes of its insured to pursue any and all funds owed by a third party. If State Farm is successful in such an action, the second section would then stand as the limit on what funds State Farm can allocate to itself. Daniels argues that State Farm's "right to recover [its] payments" from the subrogation proceeds "applies only after the insured has been fully compensated for the ... loss," and that the "loss" includes any portion covered by a deductible.

¶28 The trial court rejected this interpretation, holding that Daniels was "fully compensated for her property loss claimed under her collision coverage when she accepted payment from State Farm," at which time her claim passed to State Farm. CP at 69-70. The Court of Appeals majority agreed and appeared to read both sections of the policy as controlling when State Farm's right to pursue recovery was triggered, not how proceeds would be allocated. We disagree.

¶29 We interpret language in an insurance policy as a matter of law and review de novo. Kut Suen Lui v. Essex Ins. Co., 185 Wash.2d 703, 710, 375 P.3d 596 (2016). We seek to give such policies a "practical and reasonable" interpretation, rather than a "strained or forced construction" or one that leads to an absurd conclusion. Morgan v. Prudential Ins. Co. of Am., 86 Wash.2d 432, 434, 545 P.2d 1193 (1976).

¶30 We are presented with two different interpretations of State Farm's policy language; however, the presence of two possible interpretations does not make the language ambiguous unless both interpretations are reasonable. Here, there can be only one reasonable interpretation, which is one that aligns with the common law made whole doctrine. The interpretation State Farm urges, and which was adopted by the courts below, does not align with that doctrine; therefore we reject it. We accept Daniels's assertion that the second section of the policy language prohibits State Farm from allocating subrogation proceeds to itself until its insured is fully compensated for their loss, which includes full reimbursement for the insured's deductible. This interpretation is consistent, as it must be, with the made whole doctrine and the basic principles of subrogation, which emphasize the loss suffered by the insured. Under this interpretation, Daniels has asserted a valid claim that State Farm violates the policy.

CONCLUSION

¶31 Daniels's complaint asserted valid claims for relief under the common law, under Washington insurance regulations, and under State Farm's own policy language. As such, dismissal under CR 12(b)(6) was improper. We reverse and remand to the trial court for further proceedings.

WE CONCUR:

Fairhurst, C.J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

González, J.

Gordon McCloud, J.

Yu, J.

      Because this case was dismissed under CR 12(b)(6), the record had yet to be developed by the parties. As a result, the record does not indicate to whom GEICO attributed the remaining 30 percent fault or how the 70 percent fault was determined.

      CR 12(b)(6) allows a party to file a motion to dismiss a case for "failure to state a claim upon which relief can be granted."

      Amicus briefs were filed by the Washington State Insurance Commissioner, the Washington State Association for Justice Foundation, and American Property Casualty Insurance Association and National Association of Mutual Insurance Companies.

      Daniels additionally argues that absent Averill, WAC 284-30-393 must fully incorporate the made whole doctrine. We need not address this argument given the inapplicability of the WAC in the context of fault-free insureds.

      The bolded and italicized words in the policy are defined in a separate portion of the policy not included in the record.


source: Caselaw Access Project

author: González, J.

license: Public Domain

text:
    Mark ELSTER and Sarah Pynchon, Appellants, v. The CITY OF SEATTLE, Respondent.
    No. 96660-5
    Supreme Court of Washington.
    Argued May 14, 2019 Filed JULY 11, 2019
    Ethan Blevins, Attorney at Law, 839 W. 3600 S, Bountiful UT 84010-8423, Brian Trevor Hodges, Pacific Legal Foundation, 255 S. King Street, Suite 800, Seattle WA 98134, for Appellants.
    Lester Lawrence Lessig, Harvard Law School, 1563 Massachusetts Avenue, Cambridge ME 02138, Jeffrey Moss Slayton, Kent Charles Meyer, Gregory Colin Narver, Brian Guenther Maxey, Seattle City Attorney's Office, 701 5th Avenue, Suite 2050, Columbia Center, Seattle, WA 98104-7095, for Respondents.
    Harry Williams, IV, Law Office of Harry Williams LLC, 707 E. Harrison Street, Seattle, WA 98102-5410, for Amici Curiae Asian Counseling and Referral Service, Every Voice, Fuse, LGBTQ Allyship, One America, Washington CAN!, Washington Democracy Hub, WashPIRG, Win Win Network.
    Walter Smith, Smith & Dietrich Law Offices PLLC, 400 Union Avenue SE, Suite 200, Olympia, WA 98501-2060, Tara Malloy, Megan P. McAllen, Campaign Legal Center, 1411 K Street NW, Suite 1400, Washington DC 20005, for Amici Curiae Brennan Center for Justice at NYU School of Law, Common Cause, Campaign Legal Center.
    Christi C. Goeller, Attorney at Law, 1800 Cooper Point Road SW, Suite 8, Olympia, WA 98502-1179, for Amicus Curiae Freedom Foundation.
    Richard M. Stephens, Stephens & Klinge LLP, 601 108th Avenue NE, Suite 1900, Bellevue, WA 98004-4376, for Amicus Curiae Rental Housing Association.
   González, J.

¶ 1 Seattle voters approved the "Democracy Voucher Program," intending to increase civic engagement.

Under this program, the city provides vouchers to registered municipal voters and qualifying residents. Recipients can give their vouchers to qualified municipal candidates, who then may redeem them for campaign purposes. The city funds the program from property taxes. Mark Elster and Sarah Pynchon sued in King County Superior Court, arguing the taxes funding the program burden First Amendment rights and unconstitutionally compel speech. U.S. CONST . amend. I. The superior court dismissed the suit. Because the program does not violate the First Amendment, we affirm.

FACTS

¶ 2 In 2015, Seattle voters approved Initiative 122, establishing the Democracy Voucher Program. According to the initiative, the program's purposes are (1) to "expand the pool of candidates for city offices and to safeguard the people's control of the elections process," (2) to "ensure the people of Seattle have equal opportunity to participate in political campaigns and be heard by candidates," and (3) to "prevent corruption." Clerk's Papers at 14, 16.

¶ 3 The Democracy Voucher Program attempts to further these goals by providing vouchers to eligible municipal residents for use in city elections. Voter registration in Seattle makes one automatically eligible to receive vouchers; municipal residents who can donate to a political campaign under federal law can also receive vouchers. A voter-approved, 10-year property tax funds the program, collecting in 2016 "approximately $0.0194/$1000 assessed value" in additional property taxes. Id. at 57. The voucher recipients can give their vouchers to qualified municipal candidates.

¶ 4 Elster and Pynchon own property in Seattle. They brought a 42 U.S.C § 1983 action challenging the constitutionality of the Democracy Voucher Program, arguing it is unconstitutional to use tax dollars to underwrite campaign contributions.

¶ 5 Instead of answering Elster and Pynchon's complaint, the city moved to dismiss. The superior court granted the city's motion, upholding the Democracy Voucher Program. It found that the city "articulated a reasonable justification" for the program that was consistent with United States Supreme Court precedent: "an increase in voter participation in the electoral process." Id. at 115. Elster and Pynchon appealed, and the Court of Appeals certified the case to us.

STANDARD OF SCRUTINY

¶ 6 Elster and Pynchon challenge the city's use of tax revenue to fund political speech. "[T]he central purpose of the [First Amendment is] to assure a society in which 'uninhibited, robust, and wide-open' public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish." Buckley v. Valeo , 424 U.S. 1, 93 n.127, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964) ).

¶ 7 If the Democracy Voucher Program does not burden fundamental rights, the program enjoys the presumption of constitutionality and the challengers bear the heavy burden of showing the city lacked the power to impose the tax under rational basis scrutiny. See Forbes v. City of Seattle, 113 Wash.2d 929, 941, 785 P.2d 431 (1990) (upholding theater ticket admission tax against First Amendment and equal protection challenges (citing Fin. Pac. Leasing, Inc. v. City of Tacoma, 113 Wash.2d 143, 147, 776 P.2d 136 (1989) )). The power to tax is a fundamental, necessary sovereign power of government. Love v. King County, 181 Wash. 462, 467, 44 P.2d 175 (1935). "The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties." Bd. of Regents v. Southworth, 529 U.S. 217, 229, 120 S. Ct. 1346, 146 L. Ed. 2d 193 (2000). If rational basis scrutiny applies, the program's tax need only rationally relate to a legitimate government interest. See Dot Foods, Inc. v. Dep't of Revenue, 185 Wn.2d 239, 249, 372 P.3d 747 (2016).

¶ 8 Elster and Pynchon ask us to apply strict scrutiny, alleging the Democracy Voucher Program burdens fundamental rights. If the program burdens fundamental rights, strict scrutiny applies; to survive strict scrutiny, the city needs to show the program furthers a compelling interest and is narrowly tailored to achieve that interest. Citizens United v. Fed. Election Comm'n, 558 U.S. 310, 340, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) ("Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints."); see also Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 829, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995) (viewpoint neutrality requires the government to "abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction"). As will be discussed below in the context of Elster and Pynchon's substantive arguments, heightened scrutiny does not apply. Accordingly, we apply rational basis review.

ANALYSIS

¶ 9 Elster and Pynchon assert the Democracy Voucher Program, through its tax, unconstitutionally compels them to support the program's message. Neither this court nor the United States Supreme Court has squarely addressed the issue before us: whether a tax used to fund a public financing system violates First Amendment rights. Elster and Pynchon do not assert a violation of the state constitution. Most related cases have addressed challenges to the public financing systems themselves, not the potential injury to the taxpayers funding those systems. See, e.g., Buckley, 424 U.S. at 92-93, 96 S.Ct. 612 ; Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 755, 131 S. Ct. 2806, 180 L. Ed. 2d 664 (2011).

¶ 10 In Buckley, the Court upheld the public financing of elections, in the context of a system where taxpayers elect to authorize payment from their taxes to the Presidential Election Campaign Fund. The Court held public financing of elections "is a congressional effort, not to abridge, restrict, or censor speech, but rather to use public money to facilitate and enlarge public discussion and participation in the electoral process, goals vital to a self-governing people." 424 U.S. at 92-93, 96 S.Ct. 612. The Court concluded that the public financing system was constitutional despite the fact it amounted to the disbursement of tax revenue to political parties; the Court found that "every appropriation made by Congress uses public money in a manner to which some taxpayers object." Id. at 92, 96 S. Ct. 612.

¶ 11 Public financing schemes must not burden freedom of speech and they are presumptively unconstitutional if they do. For example, in Bennett, the Court declared unconstitutional an Arizona system that provided matching funds to publicly financed candidates, if those candidates agreed to certain campaign restrictions, after their opponents privately raised or spent funds beyond a threshold amount. 564 U.S. at 747, 131 S.Ct. 2806. The Arizona system operated in a way that burdened the speech of both privately financed candidates and groups independently advocating for those candidates. The matching funds penalized privately financed candidates who " 'robustly' " exercised their First Amendment rights, by providing funds to their political rivals. Id. at 736, 131 S. Ct. 2806 (quoting Davis v. Fed. Election Comm'n, 554 U.S. 724, 739, 128 S. Ct. 2759, 171 L. Ed. 2d 737 (2008) ). The Court found the matching funds "particularly burdensome" on independent groups because their choices were to "trigger matching funds, change your message, or do not speak." Id. at 739, 128 S.Ct. 2759. The Court distinguished its holding in Buckley -that public financing systems are constitutional-from cases in which the speech of some is increased "at the expense of impermissibly burdening (and thus reducing) the speech" of others. Id. at 741, 128 S.Ct. 2759.

¶ 12 Elster and Pynchon argue the Democracy Voucher Program is not viewpoint neutral because the vouchers will be distributed among qualified municipal candidates unevenly and according to majoritarian preferences. "The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views." Southworth, 529 U.S. at 235, 120 S.Ct. 1346. Here, the decision of who receives vouchers is left to the individual municipal resident and is not dictated by the city or subject to referendum. Elster and Pynchon do not dispute that the city imposes neutral criteria on who can receive vouchers and who can redeem them, making the program's administration viewpoint neutral. That some candidates will receive more vouchers reflects the inherently majoritarian nature of democracy and elections, not the city's intent to subvert minority views.

¶ 13 The tax at issue here does not alter, abridge, restrict, censor, or burden speech. On the contrary, the Democracy Voucher Program "facilitate[s] and enlarge[s] public discussion and participation in the electoral process." Buckley, 424 U.S. at 92-93, 96 S.Ct. 612. The program resembles other content neutral ways the government facilitates political speech, for example, when the government distributes voters' pamphlets. See, e.g., RCW 29A.32.010 (concerning distribution of voters' pamphlets for the general election); see also LAWS OF 2013, chs. 143, 195 (ensuring contested judicial races and other nonpartisan races are not decided at the primary). Thus, wholly distinct from cases involving unconstitutional campaign finance laws and laws that discriminate based on content or viewpoint, the program does not burden freedom of speech, and strict scrutiny does not apply.

¶ 14 Elster and Pynchon argue Janus v. American Federation of State, County & Municipal Employees, Council 31, --- U.S. ----, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018), renders the Democracy Voucher Program unconstitutional because they disagree with the program's message. In Janus, the Court held that the funding of the collective bargaining process through an agency fee of nonmember public sector employees "seriously impinges on First Amendment rights." Id. at 2464. The collective bargaining process compelled the nonmembers to "provide financial support for a union" that adopts powerful political positions the nonmembers oppose. Id. ; see also United States v. United Foods, 533 U.S. 405, 415-16, 121 S. Ct. 2334, 150 L. Ed. 2d 438 (2001) (finding unconstitutional an assessment on mushroom handlers that funds the promotion of mushroom advertisements created by a council of industry representatives).

¶ 15 Janus involved an agency fee that directly subsidized the union's collective bargaining activities, which burdened " 'associational freedoms.' " 138 S. Ct. at 2466, 2468 (quoting Harris v. Quinn, 573 U.S. 616, 649, 134 S. Ct. 2618, 189 L. Ed. 2d 620 (2014) ). Unlike the employees in Janus, Elster and Pynchon cannot show the tax individually associated them with any message conveyed by the Democracy Voucher Program. Without such a showing, Janus has no bearing on this case and the program is not subject to heightened scrutiny. See PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87, 100 S. Ct. 2035, 64 L. Ed. 2d 741 (1980) (noting the First Amendment was not violated where "views expressed by members of the public ... will not likely be identified with those of the owner"); accord Southworth, 529 U.S. at 233, 120 S.Ct. 1346 (university's viewpoint neutral funding of student groups ensured student groups' activities did not burden objecting students' associational freedoms).

¶ 16 The Democracy Voucher Program's purpose is to, among other things, "giv[e] more people an opportunity to have their voices heard in democracy." SEATTLE MUNICIPAL CODE 2.04.600. The government has a legitimate interest in its public financing of elections, as Buckley held. See 424 U.S. at 92-93, 96 S.Ct. 612. The program's tax directly supports this interest. The program, therefore, survives rational basis scrutiny.

CONCLUSION

¶ 17 The Democracy Voucher Program does not alter, abridge, restrict, censor, or burden speech. Nor does it force association between taxpayers and any message conveyed by the program. Thus, the program does not violate First Amendment rights. We affirm.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Madsen, J.

Owens, J.

Stephens, J.

Wiggins, J.

Gordon McCloud, J.

Yu, J.

      To be eligible to receive vouchers from municipal residents, municipal candidates must obtain a required number of signatures and contributions from qualified municipal residents.

      The lack of a primary voter's pamphlet for statewide races in most counties was one of the concerns that drove the legislature to move these races to the general election. See S.B. Rep. on H.B. 1474, at 2, 63d Leg., Reg. Sess. (Wash. 2013).
      Another recent example of governmental facilitation of political speech is when the State allocated funds for prepaid postage election expenses. Letter from Jay Inslee, Governor of Washington State, to Kim Wyman, Washington Secretary of State (May 14, 2018), http://www.govemor.wa.gov/sites/default/files/SOS% 20Efund% 20letter% 20for% 20elections.pdf [https://perma.cc/A2P5-TDPU]; cf. Burdick v. Takushi , 504 U.S. 428, 438, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992) (the Court has "repeatedly upheld reasonable, politically neutral regulations that have the effect of channeling expressive activity at the polls" (citing Munro v. Socialist Workers Party, 479 U.S. 189, 199, 107 S. Ct. 533, 93 L. Ed. 2d 499 (1986) )).

      We disagree with Elster and Pynchon's contention in the alternative that Buckley requires heightened scrutiny under these facts. Compare 424 U.S. at 17-84, 96 S.Ct. 612 (applying heightened scrutiny to various campaign restrictions), with id. at 92-93, 96 S. Ct. 612 (not applying heightened scrutiny to the public financing scheme).

      The Democracy Voucher Program funds the speech of municipal residents and candidates. It does not fund government speech. See Johanns v. Livestock Mktg. Ass'n, 544 U.S. 550, 559, 125 S. Ct. 2055, 161 L. Ed. 2d 896 (2005).


author: OWENS, J. MADSEN, J. (dissenting)

text:
    STATE of Washington, Respondent, v. Joshua Cane FRAHM, Petitioner.
    No. 95947-1
    Supreme Court of Washington.
    Argued February 21, 2019 Filed July 11, 2019
    Gregory Charles Link, Kate Benward, Washington Appellate Project, 1511 3rd Avenue, Suite 610, Seattle, WA 98101-1683, for Petitioner.
    Kelly Michael Ryan, Clark County Prosecuting Attorney Office, P.O. Box 5000, 1013 Franklin Street, Vancouver, WA 98666-5000, for Respondent.
   OWENS, J.

¶1 A drunk driver struck and disabled another vehicle, then fled into the early morning darkness. A Good Samaritan stopped to help the vehicle that had been struck. While helping, the Good Samaritan sustained fatal injuries due to a secondary accident. We are asked whether, as a matter of law, the drunk driver's acts were too attenuated from the Good Samaritan's death for criminal liability to attach. We conclude that the drunk driver's acts were the legal cause of the Good Samaritan's death because those acts were criminal, caused direct harm as well as risk of further harm, and occurred close in time and location to the ultimate harm that befell the Good Samaritan. We further conclude that the issue of intervening, superseding cause was proper for the jury to determine as a matter of actual cause using a reasonable foreseeability standard and that the vehicular homicide conviction is supported by sufficient evidence. Accordingly, we hold that the drunk driver's acts proximately caused the Good Samaritan's death, and we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Shortly before 6:00 a.m. on Sunday, December 7, 2014, Joshua Cane Frahm was intoxicated and drove his truck erratically at a high rate of speed on several freeways in Vancouver, Washington. Two different motorists called 911 to report Frahm's dangerous driving, which included cutting off a vehicle and nearly rear-ending several others. Frahm was going 85 m.p.h. when he rear-ended a vehicle driven by Steven Klase. The impact propelled Klase's vehicle into the median barrier and caused it to spin and ricochet, leaving it disabled across the left and middle lanes. Frahm fled the scene without stopping to render aid to Klase, who was seriously injured in the collision.

¶3 Richard Irvine was driving the same direction on the same freeway that morning and witnessed the collision. Irvine pulled his sedan over onto the right shoulder of the freeway, activated his emergency flashers, exited his sedan, and crossed the freeway on foot to render aid to Klase, who remained trapped inside his vehicle. Irvine called 911 from his cell phone and was on the line with emergency dispatchers when Klase's vehicle was struck a second time by a minivan. The driver of the minivan had shifted into the left lane when he saw the flashers of Irvine's car on the right shoulder, but the driver did not notice Klase's disabled vehicle in the still-dark morning until it was too late to avoid hitting it. The second impact to Klase's vehicle from the minivan propelled Klase's vehicle into Irvine, throwing Irvine approximately 20 feet across the roadway and causing him to sustain severe brain and spinal injuries. Irvine died 12 days later as a result of his injuries and pneumonia.

¶4 The State charged Frahm with half a dozen crimes associated with the incident, including vehicular homicide. The case proceeded to a jury trial. The trial court allowed the issue of intervening, superseding cause to go to the jury. The trial court instructed the jury according to 11A Washington Practice: Washington Pattern Jury Instructions: Criminal 90.08, at 278 (4th ed. 2016) (WPIC), which stated in relevant part:

[I]f a proximate cause of the death was a new independent intervening act of the deceased or another which the defendant, in the exercise of ordinary care, should not reasonably have anticipated as likely to happen, the defendant's act is superseded by the intervening cause and is not a proximate cause of the death. ...
However, if in the exercise of ordinary care, the defendant should reasonably have anticipated the intervening cause, that cause does not supersede the defendant's original act and the defendant's act is a proximate cause. It is not necessary that the sequence of events or the particular injury be foreseeable. It is only necessary that the death fall within the general field of danger which the defendant should have reasonably anticipated.

Clerk's Papers (CP) at 106 (Instr. 12). Frahm objected to that instruction.

¶5 The jury found Frahm guilty of vehicular homicide, as well as vehicular assault, hit-and-run, conspiracy to commit perjury, and false reporting. Frahm appealed his convictions, arguing, among other claims, that the State presented insufficient evidence to support his conviction for vehicular homicide. The Court of Appeals affirmed, and we granted review. State v. Frahm , 191 Wash.2d 1026, 428 P.3d 1170 (2018).

ISSUE

¶6 Did Frahm's acts proximately cause Irvine's death?

a. Were Frahm's acts the legal cause of Irvine's death?

b. Does sufficient evidence support Frahm's vehicular homicide conviction when the jury was charged with the issue of intervening, superseding cause and instructed to apply a reasonable foreseeability standard?

ANALYSIS

¶7 Frahm's challenge to his vehicular homicide conviction has taken different forms during his appeal. Though Frahm objected to use of the pattern jury instruction at trial, he did not assign error to the instruction on appeal. Rather, Frahm argued that insufficient evidence supported his conviction. In his petition for review, Frahm argued that the foreseeability standard applied by the Court of Appeals erroneously heightened the threshold for a superseding cause. In his supplemental brief, Frahm challenged use of a tort-derived foreseeability standard to determine liability for vehicular homicide, as well as sufficiency of the evidence underlying his conviction. Properly before us is whether sufficient evidence supports Frahm's conviction for vehicular homicide.

¶8 When reviewing a challenge to the sufficiency of evidence, we view the evidence in the light most favorable to the State and determine whether "any rational trier of fact could have found guilt beyond a reasonable doubt." State v. Salinas , 119 Wash.2d 192, 201, 829 P.2d 1068 (1992). We review questions of law de novo. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996).

Proximate Cause

¶9 Vehicular homicide is defined as follows:

(1) When the death of any person ensues within three years as a proximate result of injury proximately caused by the driving of any vehicle by any person, the driver is guilty of vehicular homicide if the driver was operating a motor vehicle: (a) While under the influence of intoxicating liquor or any drug, as defined by RCW 46.61.502 ; or
(b) In a reckless manner; or
(c) With disregard for the safety of others.

RCW 46.61.520. Vehicular homicide is a strict liability offense. See State v. Rivas, 126 Wash.2d 443, 451-53, 896 P.2d 57 (1995). "[T]he conduct of the defendant must be both (1) the actual cause, and (2) the 'legal' ... cause" of the death. Id. at 453, 896 P.2d 57. In Washington, unlike other jurisdictions, we use the term "proximate cause" to refer to both prongs of causation together. See Hartley v. State, 103 Wash.2d 768, 777, 698 P.2d 77 (1985) ("Washington law recognizes two elements to proximate cause: Cause in fact and legal causation"); State v. Bauer, 180 Wash.2d 929, 936 n.5, 329 P.3d 67 (2014). To determine whether Frahm's acts proximately caused Irvine's death, we must determine whether Frahm's acts were both the legal cause and the actual cause of the death.

¶10 Actual cause, or cause in fact, "refers to the 'but for' consequences of an act-the physical connection between an act and an injury." Hartley, 103 Wash.2d at 778, 698 P.2d 77. Legal cause presents a more nuanced inquiry:

Legal causation ... rests on policy considerations as to how far the consequences of [a] defendant's acts should extend. It involves a determination of whether liability should attach as a matter of law given the existence of cause in fact. ... [D]etermination of legal liability will be dependent on 'mixed considerations of logic, common sense, justice, policy, and precedent.'

Id. at 779, 698 P.2d 77 (quoting King v. City of Seattle, 84 Wash.2d 239, 250, 525 P.2d 228 (1974) ) While actual cause is a question of fact generally left to the jury to "determin[e] what actually occurred," id. at 778, 698 P.2d 77, legal cause "is a question of law for the court based on policy considerations."

Colbert v. Moomba Sports, Inc., 163 Wash.2d 43, 51, 176 P.3d 497 (2008). "The focus in the legal causation analysis is whether, as a matter of policy, the connection between the ultimate result and the act of the defendant is too remote or insubstantial to impose liability." Schooley v. Pinch's Deli Market, Inc., 134 Wash.2d 468, 478-79, 951 P.2d 749 (1998). " '[A]s to cause in fact, tort and criminal situations are exactly alike.' " Bauer, 180 Wash.2d at 936, 329 P.3d 67 (quoting State v. Dennison, 115 Wash.2d 609, 624 n.15, 801 P.2d 193 (1990) ). As to legal causation, however, tort and criminal situations differ. Id. at 940, 329 P.3d 67.

a. Legal Cause

¶11 In Bauer, we recognized and established that as a rule, " 'legal cause' in criminal cases differs from, and is narrower than, 'legal cause' in tort cases in Washington." Id.

Commentators and courts recognize that criminal law and tort law serve different purposes and therefore have different principles of legal causation. "[W]ith crimes, where the consequences of a determination of guilt are more drastic ... it is arguable that a closer relationship between the result achieved and that intended or hazarded should be required." "The wider doctrines of causation currently applied in tort law should not be extended to criminal law. ... [I]n criminal law, ... it is not normally enough merely to prove that [the] accused occasioned the harm; he must have 'caused' it in the strict sense."

Id. at 936-37 (alterations in original) (citations omitted) (quoting 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.4(c) at 472 (2d ed. 2003) ; H.L.A. HART & TONY HONORE, CAUSATION IN THE LAW 350-51 (2d ed. 1985)). We examined the case law and "found no Washington case upholding [criminal] liability ... where the accused did not actively participate in the immediate physical impetus of the harm." Id. at 940, 329 P.3d 67.

¶12 Bauer was charged with third degree assault when he left loaded guns unsecured in his home, and his girlfriend's child " 'swiped' " one of those guns and two days later carried it to school where it discharged, injuring another student. Id. at 933, 329 P.3d 67. We held "legal causation is not satisfied" as to Bauer "[b]ecause legal causation in civil cases is broader and more flexible than it is in criminal cases." Id. at 942, 329 P.3d 67. ¶13 We distinguished Bauer from cases where a defendant's "initial act was not only intentional, but felonious, and capable of causing harm in and of itself." Id. at 939, 329 P.3d 67. For example, we contrasted Bauer with State v. Leech , 114 Wash.2d 700, 705, 790 P.2d 160 (1990), in which an arsonist's actions proximately caused the death of a firefighter who died in the course of responding to the arson fire. We held that Leech was criminally liable for the firefighter's death despite the fact that the arson fire was but one of the causes of the death. Id. We emphasized that Leech "started the fire-clearly an intentional criminal act capable of causing harm in and of itself." Bauer , 180 Wash.2d at 939, 329 P.3d 67. We also contrasted Bauer with State v. Perez-Cervantes , 141 Wash.2d 468, 6 P.3d 1160 (2000), in which the defendant stabbed the victim several days before the victim died. We held that Perez-Cervantes was criminally liable for the victim's death despite the fact that drug use also contributed to the death. Id. at 480, 6 P.3d 1160. Again, we emphasized that Perez-Cervantes "performed an intentional criminal act-stabbing-that directly caused harm." Bauer, 180 Wash.2d at 939, 329 P.3d 67. In contrast, Bauer's act-owning guns and keeping them loaded around his home-was "not felonious or criminal." Id.

¶14 We conclude that Frahm's acts of hitting Klase's vehicle while intoxicated and fleeing the scene were felonious and directly caused harm in and of themselves. This case is similar to Leech. There, as here, the defendant criminally caused a harm that the victim died while responding to. Furthermore, Frahm's criminal acts were volitional. The record establishes that Frahm drove aggressively and nearly rear-ended several other vehicles prior to hitting Klase, while the crime of hit-and-run requires a knowing mens rea. RCW 46.52.020 ; State v. Vela, 100 Wash.2d 636, 673 P.2d 185 (1983).

¶15 By contrast, the facts of the case at bar are readily distinguishable from Bauer. Bauer had no knowledge that his girlfriend's child had taken the gun. Here, Frahm was acutely aware that he had caused harm and initiated a substantial risk of further harm when he fled after disabling Klase's vehicle. In Bauer, the gun discharged and injured another student two days after the child swiped the gun. See 180 Wash.2d at 941, 329 P.3d 67 (noting " 'remoteness in time between the criminal act and the injury [may be] dispositive to the question of legal cause ...' " (quoting Kim v. Budget Rent A Car Sys., Inc., 143 Wash.2d 190, 205, 15 P.3d 1283 (2001) )). Here, Irvine sustained fatal injuries within minutes of Frahm striking Klase's vehicle and fleeing the scene. Bauer's act was neither criminal nor directly caused harm. Here, Frahm's acts-hitting Klase's vehicle while intoxicated and fleeing the scene-were criminal and caused direct harm.

¶16 Though in Bauer we stated that we had found no Washington case upholding criminal liability "where the accused did not actively participate in the immediate physical impetus of the harm," that inquiry is misleading in the context of crimes of criminal negligence, such as vehicular homicide. 180 Wash.2d at 940, 329 P.3d 67. Rather, a defendant acts with criminal negligence "when he or she fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation." RCW 9A.08.010(l)(d). Here, Frahm grossly deviated from the standard of care by disregarding the substantial risk of further injury, which did in fact occur minutes later.

¶17 This is a case where, even under Bauer, "liability should attach as a matter of law" because Frahm's acts were criminal, caused direct harm as well as risk of further harm, and occurred close in time and location to the ultimate harm that befell Irvine. Hartley, 103 Wash.2d at 779, 698 P.2d 77. Accordingly, we hold legal causation for vehicular homicide satisfied as to Frahm.

b. Actual Cause

¶18 Frahm contends that insufficient evidence supports his vehicular homicide conviction because an intervening, superseding cause relieved him of criminal liability for Irvine's death. He argues that Irvine's act of crossing the freeway on foot to render aid to Klase and/or the secondary collision by the minivan constituted intervening, superseding causes of Irvine's death. "[A]n intoxicated defendant may still avoid responsibility for a death which results from his or her driving if the death is caused by a superseding, intervening event." Rivas, 126 Wash.2d at 453, 896 P.2d 57. Frahm also argues that use of a reasonable foreseeability standard to determine an intervening, superseding cause is erroneous in the context of criminal liability for vehicular homicide.

¶19 The most helpful definition of intervening, superseding cause is drawn from tort law. See Campbell v. ITE Imperial Corp., 107 Wash.2d 807, 811-14, 733 P.2d 969 (1987). An intervening cause is a "force that actively operates to produce harm to another after the actor's act or omission has been committed." Klein v. Pyrodyne Corp., 117 Wash.2d 1, 17 n.7, 810 P.2d 917, 817 P.2d 1359 (1991). "If the intervening cause is strong enough to relieve the wrongdoer of any liability, it becomes a superseding cause ." BLACK'S LAW DICTIONARY 265 (10th ed. 2014) (defining "intervening cause"). " 'Whether an act may be considered a superseding cause sufficient to relieve a defendant of liability depends on whether the intervening act can reasonably be foreseen by the defendant; only intervening acts which are not reasonably foreseeable are deemed superseding causes.' " Crowe v. Gaston, 134 Wash.2d 509, 519, 951 P.2d 1118 (1998) (internal quotation marks omitted) (quoting Cramer v. Dep't of Highways, 73 Wash. App. 516, 520, 870 P.2d 999 (1994) ). An intervening act will not constitute a superseding cause if the original actor " 'should have realized that a third person might so act.' " Campbell, 107 Wash.2d at 813, 733 P.2d 969 (quoting RESTATEMENT (SECOND) OF TORTS § 447(a) ( AM. LAW INST. 1965) ).

¶20 Whether an intervening act rises to the level of a superseding cause is an issue of actual cause. Maltman v. Sauer, 84 Wash.2d 975, 982, 530 P.2d 254 (1975) ; McCoy v. Am. Suzuki Motor Corp., 136 Wash.2d 350, 358, 961 P.2d 952 (1998). We trust juries to make that determination. However, that factual question may be determined as a matter of law if reasonable minds could not differ. See McCoy, 136 Wash.2d at 358, 961 P.2d 952 ; Kim, 143 Wash.2d at 203, 15 P.3d 1283. In other words, "[a]n intervening act may be so highly extraordinary or unexpected as to fall outside the realm of reasonable foreseeability as a matter of law." Micro Enhancement Int'l, Inc. v. Coopers & Lybrand, LLP , 110 Wash. App. 412, 431, 40 P.3d 1206 (2002).

¶21 In State v. Roggenkamp, 153 Wash.2d 614, 106 P.3d 196 (2005), we affirmed a vehicular homicide conviction despite the fact that the driver of the vehicle that the defendant struck was intoxicated and pulled out in front of the defendant. We concluded that the struck vehicle driver's "actions were, at most, a concurring cause, not a superseding cause of the accident." Id. at 631, 106 P.3d 196 (stating that a "concurring cause does not shield a defendant from a vehicular homicide conviction"). Sufficient evidence existed for the trial court to find that given the clear residential character of the road, "[a] vehicle pulling out ... (whether driven by an intoxicated driver or not) was an occurrence that should have been reasonably foreseeable to Roggenkamp." State v. Roggenkamp , 115 Wash. App. 927, 946, 64 P.3d 92 (2003), aff'd, 153 Wash.2d at 630-31, 106 P.3d 196.

¶22 Frahm in effect argues that the tort-derived foreseeability standard does not properly distinguish an intervening act from a superseding cause for purposes of criminal liability for vehicular homicide because of "Bauer's requirement of narrower legal cause in criminal law than in tort." Pet'r's Suppl. Br. at 15. However, we expressly noted in Bauer that " 'as to cause in fact, tort and criminal situations are exactly alike .' " 180 Wash.2d at 936, 329 P.3d 67 (emphasis added) (quoting Dennison, 115 Wash.2d at 624 n.15, 801 P.2d 193 ). Reasonable foreseeability distinguishes a superseding cause from a mere intervening event. Because that distinction presents a question of cause in fact for a jury, not a question of legal cause for a court, the foreseeability standard passes muster under Bauer.

¶23 Frahm's arguments that the Court of Appeals applied erroneous foreseeability standards are similarly unavailing. Frahm argues that the Court of Appeals contravened Roggenkamp by restricting the threshold for superseding cause to situations in which the foreseeability of the act that caused the harm was " 'highly extraordinary or unexpected.' " Pet. for Review at 10. However, we conclude that the Court of Appeals properly employed Micro Enchancement's "highly extraordinary or unexpected" standard to determine when a court should take a question of intervening, superseding cause from a jury as a matter of law. 110 Wash. App. at 431, 40 P.3d 1206. Frahm also argued that the Court of Appeals adopted a new " 'general field of danger' " foreseeability standard for liability for vehicular homicide and that the Court of Appeals based its affirmance on that new standard. Pet. for Review at 11. However, the "general field of danger" language was drawn directly from the pattern jury instruction, which the jury received at trial. WPIC 90.08; CP at 106. Thus, the Court of Appeals applied proper standards.

¶24 Here, Irvine's act of crossing the freeway on foot to help Klase and the secondary collision by the minivan were intervening events because both occurred after Frahm's criminal acts of hitting Klase's vehicle while intoxicated and then fleeing the scene. The jury weighed the evidence and determined that neither intervening event superseded Frahm's criminal acts as the actual cause of Irvine's death. The question of foreseeability was properly given to the jury because reasonable minds could have differed as to determination of that issue. Viewing the evidence in the light most favorable to the State, a rational trier of fact could have found guilt beyond a reasonable doubt. Accordingly, we hold that sufficient evidence supports Frahm's vehicular homicide conviction.

CONCLUSION

¶25 We conclude as a matter of law that Frahm's acts were the legal cause of Irvine's death because his acts were criminal, caused direct harm as well as risk of further harm, and occurred close in time and location to the ultimate harm that befell Irvine. We also conclude that the jury was properly charged with determining whether any intervening event superseded Frahm's acts as the actual cause of Irvine's death, that the jury properly applied a reasonable foreseeability standard to make that determination, and that sufficient evidence supports Frahm's vehicular homicide conviction. Accordingly, we hold that Frahm's acts proximately caused Irvine's death. We affirm the Court of Appeals.

WE CONCUR:

Fairhurst, C.J.

Johnson, J.

Stephens, J.

Wiggins, J.

González, J.

Yu, J.

MADSEN, J. (dissenting)

¶26 This is a vehicular homicide case-a criminal case, not a tort case. The majority holds that defendant's actions of hitting a car on the freeway and fleeing the accident scene without stopping, thereby leaving the struck disabled car on the freeway, proximately caused the death of a passerby who subsequently stopped to render aid and later died from injuries sustained in a second automobile collision at the scene. I disagree with the majority's conclusion that "as a matter of law" defendant's acts were the "legal cause" of the passerby's death. Majority at 602. For the reasons explained below, in my view, the passerby's death is simply too attenuated from defendant's hit and run to result in legal causation in the present context.

¶27 In this vehicular homicide case, Joshua Frahm, while intoxicated and driving his truck, collided with a car on the freeway, injuring the car's driver, Steven Klase. Frahm continued on without stopping, leaving Klase's disabled car on the freeway. Richard Irvine, seeing the disabled car on the freeway, stopped to help the disabled car's driver. Irvine pulled his vehicle onto the freeway's right shoulder, walked across the freeway, and called 911. While Irvine was talking to the dispatcher, another vehicle (a minivan) struck Klase's disabled car, propelling it into Irvine, who later died from his injuries. Frahm was charged with several crimes, including vehicular homicide for the death of Irvine. A jury convicted Frahm of this charge.

¶28 On appeal, Division Two of the Court of Appeals rejected Frahm's insufficient evidence challenge to his vehicular homicide conviction, determining that events occurring after Frahm fled the scene (i.e., the acts of Irvine and the van driver) were foreseeable. Thus, such intervening acts did not amount to superseding causes that would break the chain of proximate causation resulting in Frahm's liability for Irvine's death. The majority agrees; I do not. In my view, it is untenable that Frahm's rear-ending a vehicle on the freeway proximately caused the death of Irvine under the facts as above described.

¶29 Both the majority and the Court of Appeals view this case as analogous to State v. Roggenkamp, 115 Wash. App. 927, 64 P.3d 92 (2003), affd. 153 Wash.2d 614, 106 P.3d 196 (2005), a vehicular homicide and assault case. In my view, while Roggenkamp is instructive, it does not support the majority's view. In Roggenkamp, the defendant drove on a two-lane county road with a posted speed limit of 35 miles per hour. Defendant entered the oncoming traffic lane to pass another vehicle and reached a speed of approximately 70 miles per hour. While defendant was still in the oncoming lane, a vehicle turned into that lane from an intersection. Defendant collided with that vehicle, seriously injuring three passengers and killing another. The driver of the vehicle that defendant hit had a blood alcohol content over the legal limit. Id. at 931-34, 64 P.3d 92.

¶30 Roggenkamp held that the drunk driver's actions were not a superseding cause of the accident for two reasons. First, the drunk driver's action of turning left onto a two-lane residential roadway was reasonably foreseeable; and, second, Roggenkamp's recklessness was ongoing when the drunk driver pulled out of the intersection. Id. at 946-47, 64 P.3d 92. In the present case, Division Two concluded, "Here, as in Roggenkamp , the acts of the [van] driver and a passerby were foreseeable." State v. Frahm, 3 Wash. App. 2d 812, 821, 418 P.3d 215, review granted, 191 Wash.2d 1026, 428 P.3d 1170 (2018). And "a reasonable jury could find beyond a reasonable doubt that Frahm's rear-ending Klase's vehicle proximately caused Irvine's death." Id. at 822, 418 P.3d 215. The majority agrees that "[t]he question of foreseeability was properly given to the jury" and holds that "Frahm's acts proximately caused Irvine's death." Majority at 601-02, 602. I disagree with the majority's conclusion.

¶31 Here, the jury received Washington Pattern Jury Instruction 90.08 concerning vehicular homicide and causation as follows:

If you are satisfied beyond a reasonable doubt that the driving of the defendant was a proximate cause of the death, it is not a defense that the conduct of the deceased or another may also have been a proximate cause of the death.
However, if a proximate cause of the death was a new independent intervening act of the deceased or another which the defendant, in the exercise of ordinary care, should not reasonably have anticipated as likely to happen, the defendant's act is superseded by the intervening cause and is not a proximate cause of the death. An intervening cause is an action that actively operates to produce harm to another after the defendant's act or omission has been committed.
However, if in the exercise of ordinary care, the defendant should reasonably have anticipated the intervening cause, that cause does not supersede the defendant's original act and the defendant's act is a proximate cause. It is not necessary that the sequence of events or the particular injury be foreseeable. It is only necessary that the death fall within the general field of danger which the defendant should have reasonably anticipated.

Clerk's Papers at 106 (Instr. 12) (emphasis added); 11A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 90.08, at 278 (4th ed. 2016). Here, the general field of danger that Frahm should have reasonably anticipated is further injury to the disabled vehicle and its occupants that he left stranded on the freeway, not injury to a passerby who walked across the freeway and was struck by the disabled car, after that disabled car was struck by yet another vehicle on the freeway.

¶32 By contrast, in Roggenkamp, defendant's recklessly speeding vehicle struck another car causing injury and death to that car's occupants. The defendant's reckless conduct directly caused the injuries sustained and such reckless conduct was ongoing at the point in time when the injuries were sustained. That is not the case here. Frahm's conduct of striking a car with his truck and leaving the disabled car in the freeway was completed and over when the passerby (Irvine) later received injuries in the second automobile collision. Also, as discussed below, there is simply no sufficient connection between Frahm and the passerby's death to impose criminal liability. While "but for" causation is satisfied, legal causation is not.

¶33 Unlike the facts in Roggenkamp , the chain of events in this case is simply too attenuated to impose criminal liability on Frahm for the death of the passerby. This result finds support in State v. Bauer, 180 Wash.2d 929, 942, 329 P.3d 67 (2014). There, this court explained that while criminal law and tort law share the same "but for" causation, the requirement for legal causation to impose criminal liability is more demanding than in the tort context. Surveying the relevant case law and commentary on this issue, the Bauer court opined as follows:

This court, in agreement with commentators and other jurisdictions, has observed that "as to cause in fact [ (i.e., 'actual' or 'but for' causation) ], tort and criminal situations are exactly alike." [ State v. Dennison, 115 Wn.2d 609, 624 n.15, 801 P.2d 193 (1990) (citing 1 WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., SUBSTANTIVE CRIMINAL LAW § 3.12, at 397 n.31 (1986)) ].
Legal causation, however, is different. Commentators and courts recognize that criminal law and tort law serve different purposes and therefore have different principles of legal causation. "[W]ith crimes, where the consequences of a determination of guilt are more drastic ... it is arguable that a closer relationship between the result achieved and that intended or hazarded should be required." 1 WAYNE R. LAFAVE, SUBSTANTIVE CRIMINAL LAW § 6.4(c) at 472 (2d ed. 2003). "The wider doctrines of causation currently applied in tort law should not be extended to criminal law. ... [I]n criminal law, ... it is not normally enough merely to prove that [the] accused occasioned the harm; he must have 'caused' it in the strict sense." H.L.A. HART & TONY HONORE, CAUSATION IN THE LAW 350-51 (2d ed. 1985); see also JEROME HALL, GENERAL PRINCIPLES OF CRIMINAL LAW 254-55 (2d ed. 1960) (noting that causation in tort may be much broader than causation in criminal law).
Most states that have addressed the question agree that legal causation is defined more narrowly in criminal law than it is in tort law. The Pennsylvania Supreme Court explained, in the context of felony murder:
A closer causal connection between the felony and the killing than the proximate-cause theory normally applicable to tort cases should be required because of the extreme penalty attaching to a conviction for felony murder and the difference between the underlying rationales of criminal and tort law. The former is intended to impose punishment in appropriate cases while the latter is primarily concerned with who shall bear the burden of a loss.
Commonwealth ex rel. Smith v. Myers, 438 Pa. 218, 232, 261 A.2d 550 (1970). Cases from multiple jurisdictions, both state and federal, support this principle. E.g., United States v. Schmidt, 626 F.2d 616, 618 n.3 (8th Cir. 1980) ("[W]e believe that proof of some more direct causal connection between act and result should be required in criminal cases than would be sufficient to uphold liability in tort."); Campbell v. State, 293 Md. 438, 450-51, 444 A.2d 1034 (1982) ("[T]he tort liability concept of proximate cause is generally too broad and comprehensive to be appropriate in a criminal proceeding ....");
People v. Kibbe, 35 N.Y.2d 407, 413, 321 N.E.2d 773, 362 N.Y.S.2d 848 (1974) ("We subscribe to the requirement that the defendants' actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability."); People v. Scott, 29 Mich. App. 549, 558, 185 N.W.2d 576 (1971) ("In criminal prosecutions there must be a more direct causal connection between the criminal conduct of the defendant and the homicide charged than is required by the tort liability concept of proximate cause.").

180 Wash.2d at 936-38, 329 P.3d 67 (most alterations in original) (footnote omitted). In Bauer, this court ultimately concluded that criminal liability did not attach where "the accused did not actively participate in the immediate physical impetus of harm." Id. at 940, 329 P.3d 67 (quoting with approval, Hart & Honore, supra, at 326 for the proposition that " '[W]here [the first actor's conduct] was not sufficient [to bring about the harm] without the intervention of the second actor ... most decisions relieve the first actor of responsibility' " (most alterations in original)). That is precisely the circumstance in Frahm's case. Frahm's striking of Klase's car was not sufficient to bring about Irvine's death. Irvine's death resulted from the minivan striking Klase's car, propelling it into Irvine, who sustained injuries from that impact that were ultimately fatal more than a week later. Without Irvine leaving his vehicle and crossing the freeway on foot and the minivan subsequently striking Klase's disabled car, Irvine would not have been injured.

¶34 The majority finds this case analogous to State v. Leech, 114 Wash.2d 700, 790 P.2d 160 (1990), in which this court held an arsonist criminally liable for the death of a firefighter who died while responding to the fire started by the arsonist. The majority concludes that similarly here, "Frahm's acts of hitting Klase's [car] while intoxicated and fleeing the scene were felonious and directly caused harm in and of themselves." Majority at 600. While I agree that Frahm's drunken hit-and-run "directly caused harm," such direct harm was to Klase, not to Irvine. As discussed, under Bauer, the legal causation required to impose criminal liability necessitates a direct causal connection that is simply not present here. In Frahm's case, while "but for" causation is satisfied, legal causation is not. This alone is a sufficient basis for reversing the Court of Appeals and overturning Frahm's vehicular homicide conviction.

¶35 Additionally, I disagree with the majority's view that "[w]hether an intervening act rises to the level of a superseding cause is an issue of actual cause [for the trier of fact]." Majority at 601 (emphasis added). The majority cites two cases as support: Maltman v. Sauer, 84 Wash.2d 975, 530 P.2d 254 (1975), and McCoy v. American Suzuki Motor Corp., 136 Wash.2d 350, 961 P.2d 952 (1998). Both cases, however, addressed application of the rescue doctrine and foreseeability in the tort context and, thus, have no application here.

¶36 Elsewhere, Washington courts have opined that the issue of foreseeability "is not properly framed within the 'cause in fact' element of proximate cause." Bullard v. Bailey, 91 Wash. App. 750, 758, 959 P.2d 1122 (1998). "Instead, it is part of determining whether [a defendant's] actions are the 'legal cause' of [a plaintiff's] damages." Id.

[The] question of foreseeability "is in no way one of causation, and never arises until causation has been established. It is rather one of the fundamental policy of the law, as to whether the defendant's responsibility should extend to such results."

Id. (quoting WILLIAM L. PROSSER, HANDBOOK OF THE LAW OF TORTS 250 (4th ed. 1971)).

¶37 Further, concerning the McCoy case, the Washington Practice series notes:

In cases brought by a plaintiff who was injured in the course of trying to rescue an individual who was placed in peril by the defendant's negligence, Washington courts have added an additional inquiry as part of the "cause in fact" analysis. ...
It should be noted that intervening forces are usually considered as part of the question of legal cause, rather than cause in fact. However, this additional element of cause in fact may be a unique feature of rescue cases, and hence can be appropriately considered in such cases as part of analyzing both prongs of the proximate cause test.

16 DAVID K. DEWOLF & KELLER W. ALLEN, WASHINGTON PRACTICE: TORT LAW AND PRACTICE § 5:3 (4th ed. 2013) (emphasis added) (citation and footnote omitted).

¶38 In any event, whatever Maltman and McCoy say about proximate cause and foreseeability in the context of applying the rescue doctrine, those cases are limited to the tort arena that they addressed and, thus, have no application in the present criminal context. In my view, as discussed above, Bauer provides the appropriate analysis in this criminal context; and the stronger direct causal connection required to find legal causation, as explained in Bauer, is simply not present.

¶39 For these reasons, I dissent.

Gordon McCloud, J.

      The rescue doctrine is a tort concept that "allows an injured rescuer to sue the party which caused the danger requiring the rescue in the first place." McCoy, 136 Wash.2d at 355, 961 P.2d 952 (citing Maltman, 84 Wash.2d at 976-77, 530 P.2d 254 ). The rescue doctrine reflects "a societal value judgment that rescuers should not be barred from bringing suit for knowingly placing themselves in danger to undertake a rescue." Id. at 356, 961 P.2d 952. But, as noted, the present case concerns imposition of criminal sanction, not compensation.