Mendoza v. Rivera-Chavez

Talmadge, J.

(dissenting) — The majority holds Leader National Insurance’s (Leader National) felony exclusion *673clause invalid as against public policy. I disagree. The felony exclusion clause is directly related to the increased risk an insurance company faces when a driver operates an insured vehicle. It is also consistent with Washington public policy relating to drinking and driving and forbidding insurance of illegal conduct. The clause is not contrary to public policy.

The felony exclusion clause at issue reads:

This coverage does not apply to bodily injury or property damage if your covered auto is used in the commission of any felony, including theft of your covered auto.

Clerk’s Papers at 88. Leader National argues the plain language of the felony exclusion clause precludes coverage in this case. At the time of the tragedy here, Rivera-Chavez had a BAC reading of .20, two and a half times the legal limit; he pleaded guilty to two felonies because he killed a person and injured another while driving intoxicated.

At the outset, I agree with the majority this exclusion is not ambiguous. We are correct in rejecting the Court of Appeals holding that the exclusion applies only to intentional crimes. The insurance company could have excluded only intentional crimes, but did not. The language “any felony” must also include unintentional felonies.

I part company with the majority’s discussion of public policy, however. The majority determines the felony exclusion clause is contrary to Washington’s public policy favoring compensation for victims of road accidents, as evidenced by the financial responsibility act (FRA), chapter 46.29 RCW, and the mandatory liability insurance act, chapter 46.30 RCW. The majority’s contention sweeps too broadly. If compensation for victims of road accidents were the only consideration, all exclusions would fail the majority’s public policy test. For example, virtually all liability policies exclude coverage for the intentional conduct of the insured. Such an exclusion plainly diminishes coverage for the victims of the insured’s conduct. But Leader National did not agree to pay for any and all injuries resulting from an *674auto accident Rivera-Chavez might cause. If Rivera-Chavez purposely ran over an enemy of his, there would be no coverage because Leader National and Rivera-Chavez appropriately agreed that “coverage does not apply to bodily injury caused intentionally by [Mr. Rivera-Chavez] or at [his] direction.” Clerk’s Papers at 4. Likewise, Leader National and Rivera-Chavez agreed there would be no coverage for injuries he might cause while driving feloniously.

It is well established that insurance companies may limit their liability unless the limitation is contrary to public policy. Bohme v. PEMCO Mut. Ins. Co., 127 Wn.2d 409, 417, 899 P.2d 787 (1995); Brown v. Snohomish County Physicians Corp., 120 Wn.2d 747, 753, 845 P.2d 334 (1993). In general, courts are reluctant to find an exclusion clause in an insurance policy is in violation of public policy. State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 481, 687 P.2d 1139 (1984). An exclusion in an automobile liability insurance policy obviously detracts from the coverage required by the FRA and chapter 46.30 RCW. As the New Jersey Supreme Court observed: “Logically, in order to give any meaning to [an] exclusion, it must be interpreted to exclude something that would otherwise be covered.” Princeton Ins. Co. v. Chunmuang, 151 N.J. 80, 698 A.2d 9, 18, 60 A.L.R.5th 861 (1997). But an exclusion must still be evaluated to determine if it properly addresses only unusually risky behavior by the insured and if it carries out other significant public policy considerations.

A. Increased Risk

Insurance exclusions violate public policy if they are contrary to statute or if they “manifes[t] no relation to any increased risk faced by the insurer[.]” Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 343, 738 P.2d 251 (1987). On the other hand, exclusion clauses “[do] not violate public policy where the clause directly relates to an increased risk on the part of the insurer.” Planet Ins. Co. v. Wong, 74 Wn. App. 905, 910, 877 P.2d 198, review denied, 125 Wn.2d 1008, 889 P.2d 498 (1994). Insurers can permissibly limit cover*675age so long as the “nature of [the insurance company’s] risk is altered by factors not contemplated by it in computing premiums[.]” Mutual of Enumclaw Ins. Co. v. Wiscomb, 97 Wn.2d 203, 209, 643 P.2d 441 (1982); see also Grange Ins. Ass’n v. MacKenzie, 103 Wn.2d 708, 712, 694 P.2d 1087 (1985). Washington courts have repeatedly enforced exclusionary clauses against claims such clauses violated public policy when the clauses excluded coverage based upon an increased risk resulting from the driver’s use of the vehicle. Greer v. Northwestern Nat’l Ins. Co., 36 Wn. App. 330, 342, 674 P.2d 1257 (1984) (“the carrying of passengers on a motorcycle substantially increases the nature of the insurer’s risks.”), aff’d in part, rev’d in part, 109 Wn.2d 191, 743 P.2d 1244 (1987); Public Employees Mut. Ins. Co. v. Hertz Corp., 59 Wn. App. 641, 644, 800 P.2d 831 (1990) (use of a vehicle while intoxicated constitutes an increased risk to the insurer), review denied, 116 Wn.2d 1013, 807 P.2d 884 (1991); Planet Ins., 74 Wn. App. at 911 (use of a vehicle by an unauthorized and underage driver altered the nature of the insurer’s risk).

The question, then, for the present case, is whether Leader National’s felony exclusion is related to any activity by the insured that increases risk to the insurer beyond the expected coverage of a traditional automobile liability policy. The majority opinion, by referring to only a portion of the wording in the vehicular homicide and vehicular assault statutes, concludes there is no increased risk. The better and more traditional approach to legal analysis, however, is to look at all the words in a statute that bear on a case at bar.

The vehicular homicide statute, RCW 46.61.520, reads in its entirety:

(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
*676(b) In a reckless manner; or
(c) With disregard for the safety of others.
(2) Vehicular homicide is a class A felony punishable under chapter 9A.20 RCW[.]

While there must be a death in order for the charge of vehicular homicide to he, the crime also contains three additional elements: driving under the influence (DUI), driving in a reckless manner, or driving with disregard for the safety of others. The “to convict” instruction for vehicular homicide in WPIC 90.02 requires a finding of at least one of those three elements.1

Each of these three elements relates to the conduct of the insured, not to the victim. There can be no vehicular homicide, and no application of the felony exclusion, unless a jury finds beyond a reasonable doubt the insured was driving under the influence, driving in a reckless manner, or driving with disregard for the safety of others. Such conduct in each of these three instances involves a higher risk for the insurance company, a risk the company here chose not to undertake. The Court of Appeals correctly recognized the felony exclusion clause is aimed at “the risky behavior of the driver[.]” Mendoza v. Rivera-Chavez, 88 Wn. App. 261, 270, 945 P.2d 232 (1997).

*677DUI is defined by the applicable statute, so there is no question as to its meaning. Driving in a reckless manner or driving with disregard for the safety of others is defined by WPIC 90.05, and is based on our case law:

[To operate a motor vehicle in a reckless manner means to drive in a rash or heedless manner, indifferent to the consequences.][2]
[Disregard for the safety of others means an aggravated kind of negligence or carelessness, falling short of recklessness but constituting a more serious dereliction than ordinary negligence. Ordinary negligence is the failure to exercise ordinary care. Ordinary negligence is the doing of some act which a reasonably careful person would not do under the same or similar circumstances or the failure to do something which a reasonably careful person would have done under the same or similar circumstances. Ordinary negligence in operating a motor vehicle does not render a person guilty of vehicular homicide.]

(Emphasis added.) Thus, ordinary negligence cannot result in a conviction for vehicular homicide. Only enhanced risky driving can. It is, therefore, precisely this enhanced risky driving the felony exclusion clause in the Leader National policy addresses. The majority opinion is thus dead wrong and misleading when it says, “[T]he exclusion at issue in this case is not based on the conduct of the driver but on the injuries suffered by the victim.” Majority op. at 666.3 If Rivera-Chavez had been driving negligently and caused an *678accident that resulted in the same death and injuries, there would be coverage. But because by driving under the influence of alcohol he increased the risk to Leader National, there is no coverage. The victims and the injuries are the same in both examples. What differs is the riskiness of Rivera-Chavez’s driving.

Indeed, an exclusion in an automobile liability policy based only on the three predicate behaviors of the insured referenced in RCW 46.61.520 would be enforceable because such conduct enhances the insurer’s risk. For example, an exclusion barring coverage if the insured was operating a vehicle while intoxicated would be enforceable whether the harm engendered by the insured was property damage, bodily injury, or death precisely because Washington courts long have recognized that operating a vehicle while intoxicated increases the risk faced by the insurer. Hertz Corp., 59 Wn. App. 641. In Hertz Corp., the Court of Appeals held that the use of a vehicle by a driver who is intoxicated alters the nature of the insurer’s risk. Id. at 645. According to the court, the insurer’s risk increased when an unlicensed driver operated the vehicle. Id. at 644 (citing Continental Cas. Co. v. Weaver, 48 Wn. App. 607, 613, 739 P.2d 1192 (1987)). The court enforced the exclusion. clause, holding that the use of the vehicle while intoxicated “directly relate[d] to an increased risk on the part of the insurer.” Id. at 644. In Hertz Corp., as in this case, the exclusion clause operated to deny recovery to the *679victims of the road accident, but the clause did not violate public policy because of the increased risk to the insurer from the insured driver’s use of the vehicle.4 Arguably, under the majority’s analysis, the exclusion in Hertz Corp. would also violate public policy.

Similarly, reckless driving5 — operating a vehicle in a rash or heedless manner, indifferent to the consequences of the vehicle’s operation — or operating a vehicle with disregard to the safety of others enhances the risk to the insurer. The likelihood of property damage or bodily injury under these circumstances is obviously increased beyond the normal risk of operating a motor vehicle on Washington’s streets and highways.

Leader National’s agreement with its insured is clear: “We will pay damages for bodily injury or property damage for which you become legally responsible because of an auto accident.” Supplemental Br. of Pet’r, app. E-l, at 5. This means if Rivera-Chavez drives his car in a way that causes the death of somebody, Leader National will pay the resulting damages. It is the fundamental purpose of automobile insurance to indemnify the insured for injury he or she may cause to another.

But Leader National permissibly limited its risk by contracting not to cover injuries arising from increasingly risky behavior by Rivera-Chavez that exposed Leader National to greater potential for covering damages. If Rivera-Chavez’s fault is simple negligence, Leader National will cover any damages he causes. If Rivera-Chavez’s fault stems from his intentional activity, Leader National will *680not cover any damages he causes. Finally, if Rivera-Chavez’s fault is “driving in a reckless manner” or “with disregard of the safety of others,” resulting in someone’s death, so that he is guilty of vehicular homicide, Leader National will not cover any damages he causes. In each case, the coverage focus is on Rivera-Chavez’s behavior, not potential victims. Thus, the felony exclusion clause passes muster under Wiscomb.

Other jurisdictions have enforced exclusions for use of a vehicle in criminal activity. 8 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 121:92, at 121 (1997). Additionally, such jurisdictions have held that clauses excluding coverage for losses caused while the vehicle is engaged in unlawful flight from police are not contrary to public policy. Id. In Smith v. State Farm Mutual Automobile Insurance Co., 122 Ga. App. 430, 177 S.E.2d 195, 197 (1970), a Georgia court enforced a clause excluding coverage for injuries arising from or caused by attempts to resist or flee from arrest. The exclusion clause prevented a state patrol officer, who collided with another vehicle while in pursuit of a fleeing vehicle, from recovering from the fleeing driver’s insurance carrier. Id. at 199. Courts have also enforced clauses excluding recovery for damages incurred while the vehicle is used in illicit trade or transportation. Foremost County Mut. Ins. Co. v. North Star Dodge, Inc., 542 S.W.2d 270 (Tex. Civ. App. 1976).

The foregoing seems intuitive and straightforward. Nevertheless, the majority opinion, following the Court of Appeals, applies a peculiar and inverted spin to its analysis to conclude the focus of the felony exclusion is on the victim, rather than the insured’s behavior. The crux of the majority’s argument is that reckless driving without injury is not a felony, while reckless driving with injury is. Therefore, the majority concludes, the felony exclusion eliminates coverage for injured victims, even though the driver’s conduct is the same in both cases — reckless—and the risk to the insurer is the same. The majority opinion fails to address the risk of the insured’s behavior, which is the crux of Wiscomb.

*681Vehicular homicide, exposing the insurer to potential wrongful death damages, and vehicular assault, exposing the insurer, to potential damages for personal injuries, create enormous risks of loss for insurers. They may, of course, choose to underwrite such risks and reflect the cost for doing so in the premiums charged to the insureds. Leader National, in this case, has chosen not to do so. Neither the Legislature nor Washington’s Insurance Commissioner has required insurance companies to do so. While it is our historic function to scrutinize insurance contracts for oppressive, hidden, or ambiguous language because they are usually contracts of adhesion, it is not our function to dictate to insurers what coverages they must provide.

B. Public Policy

While sympathy for Rivera-Chavez’s victims may animate a wish for coverage, the majority opinion fails to consider other public policy goals at play in this case besides the FRA and chapter 46.30 RCW.

Justice Benjamin Cardozo long ago set forth “the fundamental principle that no one shall be permitted to take advantage of his own wrong.” Messersmith v. American Fidelity Co., 232 N.Y. 161, 165, 133 N.E. 432, 433, 19 A.L.R. 876 (1921). Originating perhaps from Justice Cardozo’s pronouncement is the pervasive body of law holding it “to be contrary to public policy to insure against liability arising directly against the insured from intentional or willful wrongs, including the results and penalties of the insured’s own criminal acts.” 7 Lee R. Russ & Thomas F. Segalla, Couch on Insurance 3d § 101:22, at 101-79 to 101-81 (1997) (citing numerous cases; footnotes omitted). “In general, insurance to indemnify insured against his own violation of law is void as against public policy.” 44 C.J.S. Insurance § 288b, at 540 (1993). “[Cjriminal . . . conduct may be held ‘uninsurable’ as a matter of public policy, regardless of whether such conduct is excluded by the contract language.” 7 Russ & Segalla, supra, § 103:23, at 103-50. Accord Agora Syndicate, Inc. v. Levin, 977 F. Supp. 713, 716 (E.D. Pa. 1997) (“It is well settled that Pennsylvania’s *682public policy prohibits insurance coverage for intentional torts or criminal acts.”); Horace Mann Ins. Co. v. Fore, 785 F. Supp. 947, 949 (M.D. Ala. 1992) (“Alabama law is unambiguous on the point that nothing requires an insurer to indemnify a third party for the insured’s criminal acts.”); Herrman v. Folkerts, 202 Kan. 116, 446 P.2d 834, 837 (1968) (“It is generally held that an insurance policy is void as against public policy if its intent is to indemnify the insured against liability for his criminal acts.”); Landry v. Leonard, 720 A.2d 907, 909 (Me. 1998) (“The general rule is that it is against public policy for insurance to indemnify an insured against his own criminal acts.”); Litrenta v. Republic Ins., 245 A.D.2d 344, 665 N.Y.S.2d 679, 680 (1997) (“In general, it is contrary to public policy to insure against liability arising directly against an insured from his violation of a criminal statute.”); Graham v. James F. Jackson Assocs., Inc., 84 N.C. App. 427, 352 S.E.2d 878, 881 (1987) (“It is a general rule that an insurance policy is void as against public policy if its intent is to indemnify the insured against liability for his own criminal acts.”).

This view is also true under Washington law. The Court of Appeals said as obiter dictum in Queen City Farms, Inc. v. Central Nat’l Ins. Co., 64 Wn. App. 838, 862 n.15, 827 P.2d 1024 (1992), “ Tt has long been against public policy to allow a person to purchase insurance for his immoral, criminal or fraudulent acts,’ ” (citation omitted), but we have never held as much.61 am confident, however, we will adopt the principle once the question is squarely before us.

Washington courts have consistently enforced broad felony exclusion clauses in the homeowners’ insurance context. Allstate Ins. Co. v. Peasley, 131 Wn.2d 420, 932 P.2d 1244 (1997); Allstate Ins. Co. v. Raynor, 93 Wn. App. 484, 969 P.2d 510, review granted, 139 Wn.2d 1001, 989 P.2d 1136 (1999); see also Cary v. Allstate Ins. Co., 130 Wn.2d 335, 922 P.2d 1335 (1996). In Peasley, a criminal act exclusion clause in a homeowners’ insurance policy *683precluded coverage for injuries sustained by a guest who was shot by the homeowner. Peasley, 131 Wn.2d at 423. We rejected the guest’s argument that such a clause violated public policy.7 Rather than forcing the insurance company to indemnify the homeowner for his criminal act, we enforced the exclusion clause. Peasley lends support for the proposition that, in general, insurers need not provide coverage for losses caused by the criminal acts of their insureds.

The Court of Appeals recently enforced a homeowners’ insurance policy which excluded coverage for injuries resulting from “ ‘the intentional or criminal acts of an insured person[.]’ ” Raynor, 93 Wn. App. at 492. In Raynor, a homeowner shot and killed a neighbor woman and her child. Id. at 490. The homeowner argued his homeowners’ insurance policy covered any liability arising from the incident. The Court of Appeals held the exclusion clause applied, noting the policy’s language was clear, and an average purchaser of insurance would understand the homeowner’s actions would be excluded criminal acts. Id. at 495. See also Barker v. California-Western States Life Ins. Co., 252 Cal. App. 2d 768, 776, 61 Cal. Rptr. 595 (1967), cert. denied, 390 U.S. 922, 88 S. Ct. 855, 19 L. Ed. 2d 982 (1968) (concluding felony exclusion clause in an insurance policy is not contrary to public policy); James v. Louisiana Laborers Health & Welfare Fund, 29 F.3d 1029 (5th Cir. 1994) (upholding provision in health insurance plan excluding coverage for expenses incurred in the course or commission of a felony); Sisters of the Third Order of St. Francis v. Swedish American Group Health Benefit Trust, 901 F.2d 1369, 1370 (7th Cir. 1990) (because drunk driving is illegal activity under Illinois law, insured not able to recover for the injuries he sustained in a drunk driving accident).

*684Rivera-Chavez benefits if there is coverage for his felonious driving. If his insurance company pays the damages to the victims, Rivera-Chavez avoids a judgment against him for that amount. In the majority’s obsessive focus on the salutary effect of liability insurance on victims, the majority overlooks the fact most people buy insurance not to protect those they may injure, but to avoid having to pay what might be large damage awards stemming from their breach of their general duty of care to avoid harm to others. Fiscal prudence compels people to buy insurance, not altruistic desires to protect potential victims.

Washington’s public policy on drinking and driving is also relevant because one of the elements of vehicular homicide and vehicular assault may be driving under the influence. For instance, we declared the purposes of the implied consent law (RCW 46.20.308) to be:

(1) to discourage individuals from driving an automobile while under the influence of intoxicants, (2) to remove the driving privileges from those individuals disposed to driving while inebriated, and (3) to provide an efficient means of gathering rehable evidence of intoxication or nonintoxication.

Nowell v. Department of Motor Vehicles, 83 Wn.2d 121, 124, 516 P.2d 205 (1973). See also RCW 4.24.420 (barring civil recovery by person committing felony); RCW 5.40.060 (barring civil recovery by intoxicated person whose fault was 50 percent or greater). To the extent persons believe they have liability insurance to protect them against the effects of their hazardous, indeed felonious, behavior, the majority’s view gives them consolation. They may feel more free to drink and drive, knowing the majority’s narrow conception of public policy will give them freedom from any worry about the financial repercussions of their egregiously antisocial behavior. “The general rule prohibiting insurance against liability for criminal acts advances a legitimate public policy interest against relieving a wrongdoer from responsibility for his own wilful and wrongful act, in order that the commission of such acts not be encouraged.” Graham, 352 S.E.2d at 881. Accord St. Paul Fire & Marine *685Ins. Co. v. Jacobson, 826 F. Supp. 155, 163 (E.D. Va. 1993) (“permitting coverage in certain circumstances will encourage insureds to engage in intentional misconduct”). The specter of huge damage awards that could burden an individual for many years acts as a deterrent to felonious driving. Insurance indemnification for felonious driving detracts from that deterrent. Public policy militates against relieving persons of their financial responsibility for felonious driving; as a matter of public policy, Rivera-Chavez should not benefit by escaping personal financial responsibility for his felonious driving.

In summary, the public policy supporting compensation for accident victims cannot control here because it proves too much. Every coverage exclusion is contrary to that policy. Moreover, that public policy is not the only public policy at issue here. Felonious drivers should not benefit from insurance coverage, and it is contrary to public policy to encourage drinking and driving or felonious driving by permitting insurers to indemnify such drivers.

CONCLUSION

The majority opinion devises a peculiar argument to conclude the felony exclusion clause in the Leader National policy focuses on victims. It plainly does not. In this case, given the involvement of our statutes on reckless driving and vehicular homicide and assault, it is evident the felony exclusion clause relates solely to the driving conduct of the insured. Leader National has decided not to underwrite driving behavior that transcends negligence and causes injury to persons or property. Neither Washington law nor public policy is to the contrary.

In this case, Rivera-Chavez pleaded guilty to two felonies, vehicular homicide and vehicular assault, for killing and injuring people on the road while he was drunk. Under these circumstances, there can be no question Rivera-Chavez was using his vehicle in the commission of a felony when the accident occurred. Under the clear and unambiguous language of the insurance, contract, Leader National is *686not required to indemnify Rivera-Chavez for the damage he caused. I would reverse the Court of Appeals’ decision and affirm the trial court’s grant of summary judgment to Leader National.

Guy, C.J., and Madsen, J., concur with Talmadge, J.

WPIC 90.02 states in pertinent part:

To convict the defendant of the crime of vehicular homicide, each of the following elements of the crime must be proved beyond a reasonable doubt:

(3) That at the time of causing the injury, the defendant was operating the motor vehicle

(a) while under the influence of [intoxicating liquor] [or] [drugs], or
(b) in a reckless manner, or
(e) with disregard for the safety of others;

On the other hand, if, after weighing all of the evidence, you have a reasonable doubt as to any one of these elements, then it will be your duty to return a verdict of not guilty.

This definition derives from our case law. See State v. Bowman, 57 Wn.2d 266, 270-71, 356 P.2d 999 (1960); State v. Partridge, 47 Wn.2d 640, 645-46, 289 P.2d 702 (1955), quoted with approval by State v. Eike, 72 Wn.2d 760, 764, 435 P.2d 680 (1967).

The felony exclusion clause depends on the behavior of the insured, the charging decision of the county prosecuting attorney, and on the outcome of the trial of the insured. Not every automobile accident resulting in death leads to a charge of vehicular homicide or assault. The insured may have been merely negligent, or not at fault at all. The insured driver may be civilly liable to the injured party. Indeed, that is what automobile insurance is all about, covering an insured for accidental behavior resulting in injury to persons or property. But in order for a criminal charge to lie, the insured’s conduct must have been so egregiously unlawful as to induce the county prosecutor to file charges. Thus, it is the conduct of the insured resulting in the filing of a felony charge and subsequent *678conviction for vehicular homicide or vehicular assault, not solely the death or injury of the third party, that activates the felony exclusion clause.

I recognize there may be controversy whether actual conviction of a felony is always necessary for a felony exclusion clause to apply. See, e.g., Allstate Ins. Co. v. Raynor, 93 Wn. App. 484, 496, 969 P.2d 510 (holding for criminal acts exclusion in homeowner’s policy “neither a criminal charge nor a conviction is prerequisite to operation of the policy’s exclusion of coverage for criminal acts.”), review granted, 139 Wn.2d 1001 (1999). For instance, if Rivera-Chavez himself had died in the accident he caused, he obviously could not have been charged, tried, and convicted of vehicular homicide. Nevertheless, if the insurer could show Rivera-Chavez’s conduct in causing the accident was felonious, the felony exclusion might be applicable. My discussion here is limited to the facts of this case, where Rivera-Chavez pleaded guilty to hoth vehicular homicide and vehicular assault, and I do not consider any other situations concerning the applicability of a felony exclusion clause.

Hertz Corp. could be distinguished on the grounds that the financial responsibility act, chapter 46.29 ECW, does not apply to car rental agreements. However, while it is true that the public polity at issue here did not apply in Hertz, the case still stands for the proposition that operating a vehicle while intoxicated alters the nature of the insurer’s risk.

Reckless driving is also a crime. RCW 46.61.500(1) states: “Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving. Violation of the provisions of this section is a gross misdemeanor punishable by imprisonment of not more than one year and by a fine of not more than five thousand dollars.” Because the crime of reckless driving is only a gross misdemeanor, Leader National’s policy does not exclude it.

Justice Holcomb cited Justice Cardozo’s principle in a dissent. National Sur. Co. v. Petersen, 155 Wash. 113, 119, 283 P. 668 (1930) (Holcomb, J., dissenting).

In Peasley, 131 Wn.2d 420, we declined to apply the public policy of compensating innocent victims asserting that this polity does not apply outside the context of automobile insurance. “ ‘[W]e do not perceive the same level of concern for financial compensation by negligent homeowners as exists for negligent automobile owners and users.’ ” Id. at 432 (quoting State Farm Gen. Ins. Co. v. Emerson, 102 Wn.2d 477, 483, 687 P.2d 1139 (1984)).