Opinion
No. 51862-3-I, Consolidated with No. 53568-4-I
Filed: November 8, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 00-8-00304-0. Judgment or order under review. Date filed: 01/13/2003. Judge signing: Hon. Michael S Spearman.
Counsel for Appellant(s), Maureen Marie Cyr, Washington Appellate Project, 1511 3rd Ave Ste 701, Seattle, WA 98101-3635.
Abraham M. Reda (Appearing Pro Se), 11328 — 19th Avenue N.E., Seattle, WA 98125.
Wade Anthony Narducci, Naselle Youth Camp, 11 Youth Camp Lane, Naselle, WA 98638.
Counsel for Respondent(s), E Bradford Bales, King Co Pros Aty Ofc, 516 3rd Ave, Seattle, WA 98104-2390.
Cecelia Youngberg Gregson, King County Prosecutors Office, 516 3rd Ave, Seattle, WA 98104.
An insurance company's loss for the purpose of imposing restitution is the amount it reasonably pays its insured on a covered claim. The trial court is not required to conduct an analysis of the insurer's business to determine how premiums, claims and expenses are related in order to determine how much of a loss occurred. We affirm the restitution orders entered in each of these cases.
Abraham Reda damaged an automobile in attempting to steal it. He pleaded guilty to vehicle prowl in the second degree and making a false statement. Reda argued that the amount of restitution to be paid to the insurance company was not easily ascertainable because it depended on how the insurer allocated the premiums it collected to the various risk pools it insured and whether the risk pool this particular victim was in suffered a loss, as opposed to a smaller profit. The trial court disagreed and imposed restitution of $493.20, consisting of $100 payable to the victim for out of pocket expenses and $393.20 payable to Pemco Insurance Company for the amount it paid to repair its insured's vehicle.
Wade Narducci and some companions damaged two vehicles in attempting to steal them. Narducci entered an Alford plea to the attempted taking of a motor vehicle without permission and vehicle prowl in the second degree. Narducci opposed restitution to the insurer based on a slightly more developed version of the same argument Reda presented. The trial court disagreed and imposed restitution of $5,417.61, consisting of $1,231.67 payable to two victims for out of pocket expenses and $4,185.94 payable to State Farm Insurance Company for the amount it paid to repair its insured's vehicle.
North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162 (1970).
Both defendants raised the same issue on appeal and the cases were consolidated.
RCW 13.40.020(22) limits restitution to "easily ascertainable" damages. Appellants argue that the insurance business is complex, that a company collects premiums based on the losses it anticipates for a particular insurance group, that it allocates expenses based on a number of factors, and that the loss suffered by an insurance company therefore cannot be easily ascertained. Appellants contend that the insurers in their cases are thus not entitled to restitution.
We agree with the Minnesota court that this argument is "[i]ngenious but specious." Insurance companies may be "victims" entitled to restitution. A defendant should not profit merely because his victim is insured, and the cost of crime should not be borne by law-abiding policyholders whose premiums will be used to make payments to victims. It may require a complicated accounting to match premiums to an insurance company's business costs and the claims it pays, but if the insurer pays a legitimate claim, it suffers a loss equal to what it paid, either as a diminution of profit, an operating loss, or an expense it must pass on to its policy holders. The fact that the accounting treatment of that loss may be complicated does not make the damage the insurer sustains any less "easily ascertainable." Trial courts have the discretion to order restitution in the full amount paid out by insurance companies.
State v. Jola, 409 N.W.2d 17, 19 (Minn.App. 1987).
State v. A.M.R., 147 Wn.2d 91, 97, 51 P.3d 790 (2002).
State v. Barnett, 36 Wn. App. 560, 563, 675 P.2d 626 (1984); People v. Hamilton, 114 Cal. App. 4th 932, 942, 8 Cal. Rptr. 3d 190 (2003).
State v. Ewing, 102 Wn. App. 349, 356-57, 7 P.3d 835 (2000).
Contrary to appellants' argument a "loss" for the purpose of restitution is not the same as a "loss", i.e., a lack of profit, for accounting purposes.
State v. Smith, 42 Wn. App. 399, 403, 711 P.2d 372 (1985); State v. Barnett, 36 Wn. App. at 562.
We affirm the restitution orders in both cases.
GROSSE, J., COX, C.J. and ELLINGTON, A.C.J.