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   IN THE SUPREME COURT OF THE STATE OF WASHINGTON



 STATE OF WASHINGTON,
                                                    NO. 87697-5
                 Respondent,
                                                    ENBANC
                 v.

 JENNIFER MEGAN MAU,
                                                    Filed           AUG 2 2 2013
                 Petitioner.


 STATE OF WASHINGTON,

                 Respondent,

                 v.

 DAVID JOHN EDEN,

                 Defendant.


        GORDON McCLOUD, I.-Jennifer Megan Mau was convicted of making a

 false claim for payment of a loss under a contract of insurance, in violation of

 RCW 48.30.230. She challenges the sufficiency of the evidence to support her

 conviction. RCW 48.30.230(1)(a) criminalizes false claims "for the payment of a
State v. Mau, No. 87697-5



loss under a contract of insurance." In this case, the State failed to prove the

existence of any "contract of insurance" underlying Mau's claim; we therefore

reverse the conviction.

                                     FACTS

      On March 30, 2007, Mau rented aU-Haul truck from an Olympia U-Haul

facility. When she rented the truck, Mau also purchased "Safemove Protection,"

an optional "cargo protection" policy offered by U-Haul, which does not cover

water damage. 1 Report of Proceedings (RP) at 39, 84; Ex. 25. Mau, her partner

David Eden, and several friends and family members used the truck to move

Mau's and Eden's personal belongings from a rented storage facility in Centralia,

Washington, to their new home in Morton, Washington. At some point after Mau

returned the truck, she complained to aU-Haul employee that the truck's roof had

leaked and that her property had been damaged by rainwater as a result.          In

response, the employee gave Mau the number of Republic Western Insurance so

Mau could file a claim.

       Mau called Republic Western on April 3, 2007, to report the alleged

damage. Because Mau reported that her items had been damaged by rainwater,

Republic Western concluded that her claim would not be covered by the Safemove
Protection policy. On April 4, the company sent Mau a letter to this effect. In lieu

of a Safemove claim, Republic Western opened a "general liability claim" on

Mau's behalf. 1 RP at 37-39.




                                         2
State v. Mau, No. 87697-5



      When Mau filed her claim, Republic Western was a wholly owned

subsidiary of U-Haul.       At trial, a Republic Western employee described the

company as the "claims administrator" for "U-Haul who is self-insured." 1 RP at

36.   Because it was based in California, Republic Western contracted with

independent claims adjusters to investigate claims filed by U-Haul customers in

other states. It hired Reilly Gibby, an independent adjustor in Washington, to

investigate Mau's claim. Gibby called Mau on April 19, 2007, to discuss her

claim, to request documentation of her losses, and to set up an in-person meeting.

      Mau met with Gibby the next day at a restaurant about 30 miles from her

home. Gibby interviewed Mau about the move, and together they compiled a list

of allegedly damaged items totaling more than $16,000 in value. On May 7, Gibby

met with Eden, who verified Mau's claims. Because of inconsistencies between

Mau's and Eden's accounts of the move, their refusal to meet with Gibby at their

home, and their failure to provide any documentation of the alleged damage, Gibby

grew to suspect fraud. Eventually, he recommended that Republic Western deny

the claim. Roughly two years later, the Washington State Office of the Insurance

Commissioner opened an investigation into Mau's and Eden's claim.

       On March 17, 2010, the Lewis County prosecutor charged Mau and Eden

with one count each of making a false insurance claim. That crime is defined in

RCW 48.30.230, which provides, in relevant part:

       False claims or proof-Penalty.

       ( 1) It is unlawful for any person, knowing it to be such, to:


                                            3
State v. Mau, No. 87697-5


         (a) Present, or cause to be presented, a false or fraudulent claim, or
      any proof in support of such a claim, for the payment of a loss under a
      contract of insurance; or

         (b) Prepare, make, or subscribe any false or fraudulent account,
      certificate, affidavit, or proof of loss, or other document or writing,
      with intent that it be presented or used in support of such a claim.
Mau and Eden were not joined as codefendants, but their cases were joined and

consolidated for trial.

      After the State rested, the defense moved to dismiss on the ground that the

State had failed to prove that the defendants made their claim "under a contract of

insurance." 2 RP at 207-09. Mau's attorney argued that the false claims statute

was "designed to deal with people who take out an insurance policy and then make

a fraudulent claim ... on the contract of insurance that they took out" and that the

statute was therefore inapplicable to the defendants' "liability claim." 2 RP at 208

(emphasis added).         He also argued that because "U-Haul is apparently self-

insured," Republic Western could have "handl(ed) this claim for U-Haul" but

could not have "act( ed) as an insurance company under some sort of contract of

insurance." 2 RP at 208-09. The court denied the motion to dismiss; it reasoned

that the defense's argument was based on "too narrow a reading of [the false

claims] statute." 2 RP at 210. 1




       1
          The trial judge reasoned that "an insurance policy can be direct coverage, [or] it
can cover third parties. This was an insurance claim. I don't think that the language of
this statute would preclude this type of a claim being a claim for insurance .... I think
that is too narrow of a reading of [the] statute .... " 2 RP at 210.
                                               4
State v. Mau, No. 87697-5



      The jury found Mau and Eden guilty as charged. Eden was sentenced to 15

days with allowance that it be served at home. Mau was sentenced to 60 days with

allowance that it be served on electronic home monitoring.

      Mau and Eden appealed their convictions, and the Court of Appeals

affirmed. State v. Mau, noted at 169 Wn. App. 1002, 2012 WL 2499372. Mau

alone petitioned for review, which this court granted. State v. Mau, 176 Wn.2d

1007, 297 P.3d 68 (2013).

                                    ANALYSIS

      In a criminal trial, the due process clauses of the state and federal

constitutions require the State to prove each element of the crime charged beyond a

reasonable doubt.    State v. Baeza, 100 Wn.2d 487, 488, 670 P.2d 646 (1983)

(citing Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct. 2781, 61 L. Ed. 2d 560

(1979)).   Mau argues that the State's evidence is insufficient to sustain her

conviction because it does not prove that she filed her claim "under a contract of

insurance" as that phrase is used in the false claims statute. 2 Her appeal thus

presents questions of both evidentiary sufficiency and statutory interpretation.

       In order to determine whether a conviction was based on sufficient evidence,

the reviewing court views the evidence in the light most favorable to the

prosecution. Baeza, 100 Wn.2d at 488 (citing State v. Green, 94 Wn.2d 216, 616




       2
        She also notes that by invoking the false claims statute the State was able to
charge her with a class C felony, whereas it would have been limited to a gross
misdemeanor charge if it had characterized her unsuccessful claim as attempted theft.
                                          5
State v. Mau, No. 87697-5



P.2d 628 (1980)). Interpretation of a statute is question of law reviewed de novo.

State v. Engel, 166 Wn.2d 572, 576,210 P.3d 1007 (2009).

       The plain language of RCW 48.30.230(1)(a) criminalizes only false claims

"for the payment of a loss under a contract of insurance." The existence of an

underlying contract of insurance is therefore a prerequisite to conviction under the

statute.   At trial, the State advanced two different theories upon which Mau' s

conviction could rest. According to one theory, which the State articulated early in

its closing argument, Mau filed her claim for payment under the "Safemove"

policy. According to the other theory, which the State raised only in its rebuttal

closing argument, Mau filed her claim for payment under U-Haul's contract with

Republic Western.

       At the Court of Appeals, the State advanced only the latter theory. It did not

assert that Mau filed her claim under the "Safemove" policy, nor did it assert that

U-Haul was contractually obligated to Mau to cover her losses. Rather, it argued

that U-Haul had a "contract of insurance" with Republic Western, and that Mau

filed her claim for payment under this contract. The Court of Appeals agreed,

affirming Mau's conviction on the grounds that "Mau did not have to be a party to

the insurance contract ... to be convicted under the statute ... [the] contract

existed between U-Haul and Republic .... " Mau, 2012 WL 2499372, at *3. 3


       3
         Because we conclude that the State failed to prove the existence of an underlying
"contract of insurance" in this case, we do not reach the question whether contractual
privity is an element of the false claims crime under RCW 48.30.230. The statute is
silent on this question, but we note that it describes potential false claimants in broad
terms, as "any person" who presents a fraudulent claim. RCW 48.30.230(l)(a). A
                                            6
State v. Mau, No. 87697-5



      At trial, the State did not elaborate its theory that U-Haul's contract with its

subsidiary, Republic Western, constituted a "contract of insurance." Consequently,

it is not clear what the jury understood this to mean. It might have thought that U-

Haul's contract for claims adjustment constituted a "contract of insurance," but it
also might have thought that U-Haul's self-insurance (which Republic Western

administers) constituted such a contract.          The Court of Appeals' opinion is

ambiguous on this question, appearing to conflate Republic's administrative

functions with an obligation to cover losses:

      Republic [Western] is the insurance carrier for and a subsidiary of U-
      Haul. Republic investigates claims for U-Haul and then determines
      each claim's validity. This relationship is sufficient to demonstrate
      that an insurance contract existed between U-Haul and Republic: If
      Republic determines that a claim is valid, it pays the claimant for his
      or her loss.[4J
!d.



majority of courts addressing similar statutes in other jurisdictions have interpreted such
broad language as evidence that the legislature intended to criminalize false insurance
claims by third parties, as well as by actual policyholders. See State v. Mark Marks, PA,
698 So. 2d 533 (Fla. 1997); Kiddie v. State, 1977 OK CR 301, 574 P.2d 1042, 1047;
People v. Benson, 206 Cal. App. 2d 519, 23 Cal. Rptr. 908 (1962). But see People v.
Learman, 281 A.D. 583, 586-87, 121 N.Y.S.2d 388 (1953) (concluding that there was
insufficient evidence that the defendant had actually falsified the vehicle appraisal at
issue, but going on to find that, even if he had, this falsification fell outside the reach of
the false claims statute because it was in the service of a tort action rather than "a claim
for a loss upon any contract of insurance").
        4
          To the extent that this portion of the Court of Appeals opinion implies that
Republic Western (as opposed to U-Haul) covers U-Haul customer losses, it is not
consistent with the evidence established at Mau's trial. At the trial, a claims adjustor for
Republic Western testified that any claims approved by Republic Western would "affect
U-Haul's bottom line." 1 RP at 49.
                                              7
State v. Mau, No. 87697-5



                                                              5
         In its arguments to this court, the State conceded that neither the Safemove

policy       nor   U-Haul's   self-insurance   was   the   contract    underlying    Mau's

prosecution. 6 We therefore address only the argument that the State advances here:


         5
          Wash. Supreme Court oral argument, State v. Mau, No. 87697-5 (May 9, 2013),
at 16 min., 50 sec., audio recording by TVW, Washington State's Public Affairs
Network, available at http://www.tvw.org.
        6
          With respect to the self-insurance, this concession is well taken. In Kyrkos v.
State Farm Mutual Auto Insurance, 121 Wn.2d 669, 852 P.2d 1078 (1993), this court
held that the definition of "insurance" in Title 48 RCW excluded "self-insurance":
        [A] broad understanding of the term "insurance policy" so as to include
        self-insurance . . . is specifically foreclosed by RCW Title 48, which
        defines "insurance" as a "contract whereby one undertakes to indemnify
        another or pay a specified amount upon determinable contingencies."
Id. at 674 (citing RCW 48.01.040). We reaffirmed this reasoning in Stamp v. Department
ofLabor & Industries, 122 Wn.2d 536, 543 n.6, 859 P.2d 597 (1993).
        While this court has never addressed the question, courts in several other
jurisdictions have held that "self-insurance" is "insurance" where it involves the transfer
of risk to a group. See, e.g., Associated Indus. of Ky. v. US. Liab. Ins. Grp., 531 F.3d
462, 467 (6th Cir. 2008) (group self-insurance was "insurance because it involved risk
shifting from the participants to the fund"); Mass. Care Self-Ins. Grp., Inc. v. Mass. Ins.
Insolvency Fund, 458 Mass. 268, 279, 937 N.E.2d 939 (2010) (workers' compensation
 self-insurance group "provides its members with the same product sold by the workers'
 compensation insurance industry"); La. Safety Ass 'n of Timbermen-Self Ins. Fund v. La.
Ins. Guar. Ass'n, 2009-0023 (La. 6/29/09), 17 So. 3d 350, 358 ("the [group] was an
 insurer [because it] ... undertook to indemnify its members for the full amount of
 workers' compensation claims allowed ... and the members agreed to pay premiums and
 assessments") (footnote omitted); S.C. Prop. & Cas. Ins. Guar. Ass 'n v. Carolinas
 Roofing & Sheet Metal Contractors Self-Ins. Fund, 315 S.C. 555, 446 S.E.2d 422, 425
 (1994) (distinguishing "single employer self-insured" from "the members of a group self-
 insurer ... [who] transfer a portion of their risk to the group" (emphasis in original)).
 Kyrkos does not foreclose such a holding, but it does establish the following rule: absent
 legislation to the contrary, self-insurance is not "insurance" unless it involves one party's
 contract "'to indemnify another or pay a specified amount upon determinable
 contingencies."' Kyrkos, 121 Wn.2d at 674 (quoting RCW 48.01.040). In Mau's case,
 the prosecution presented no evidence that U-Haul's self-insurance involved any sort of
 group risk-share. Thus, even under the narrowest reading of Kyrkos, there was
 insufficient evidence that U-Haul's self-insurance met the definition of a "contract of
 insurance" for purposes of the false claims statute.
                                               8
State v. Mau, No. 87697-5



that the claims administration contract between U-Haul and Republic Western

constitutes a "contract of insurance" for purposes of the false claims statute.

      This argument is unavailing. Title 48 RCW, which governs insurance in

Washington State and contains the false claims statute, does not define a "contract

of insurance." It does define "insurance," however, as "a contract whereby one

undertakes to indemnify another or pay a specified amount upon determinable

contingencies."   RCW 48.01.040.       Read in combination with the definition of

"insurance," therefore, the phrase "contract of insurance" is somewhat perplexing:

it literally means a "contract of a contract .          "   Nevertheless, the phrase,

"contract of insurance" appears numerous times throughout Washington's

Insurance Code, in contexts that belie the State's broad interpretation.

      As just one example, the phrase, "contract of insurance" appears 14 times in

chapter 48.18 RCW, which governs "The Insurance Contract." In every instance,

the phrase is used as a synonym for "insurance." See, e.g., RCW 48.18.140(1)

("The written instrument, in which a contract of insurance is set forth, is the



      It is a closer question whether the Safemove policy could have been the "contract
of insurance" underlying Mau's allegedly false claim. The State charged Mau with filing
a claim for over $16,000-an amount that elevated the charge to a class C felony, RCW
48.30.230, and was not determined until after Republic Western denied coverage under
the "Safemove" policy and opened a "general liability claim" instead, 1 RP at 45-46, 64-
69. Moreover, U-Haul's contract with Mau studiously avoids referring to the policy as
"insurance/' instead referring to it as "protection." Ex. 25. This renders the provisions
addressing that "protection" ambiguous at best. Their plain language indicates that U-
Haul is trying to prevent "Safemove's" characterization as "insurance," but in substance
the policy might fit Title 48 RCW's definition of "insurance" as "a contract whereby one
undertakes to indemnify another or pay a specified amount upon determinable
contingencies." RCW 48.01.040.
                                           9
State v. Mau, No. 87697-5



policy."); RCW 48.18.040(1) ("No contract of insurance on property or of any

interest therein or arising therefrom shall be enforceable except for the benefit of

persons having an insurable interest in the things insured."); RCW 48.18.190 ("No

agreement in conflict with, modifying, or extending any contract of insurance shall

be valid unless in writing and made a part of the policy."). 7 Indeed, this court can

find no Washington case or statute in which the phrase "contract of insurance"

denotes a broader category of contract than that transferring risk from insured to

insurer. There is apparently no support for the State's argument that a contract for

claims administration is a "contract of insurance" under the false claims statute.

      Because the claims administration contract between U-Haul and Republic

Western is not a "contract of insurance" for purposes of the false claims statute, the

evidence is insufficient to show that Mau filed her claim for payment under a

"contract of insurance." The State has not met its burden to prove every element

of the crime charged. We therefore reverse the Court of Appeals and remand for

dismissal Mau' s conviction.




       7
         The phrase appears seven times throughout RCW 48.18.2901 and RCW
48.18.292, which describe the insurer's duty to "renew" various "contracts of insurance,"
three times in RCW 48.18.291, which prohibits insurers from canceling a "contract of
insurance predicated . . . upon the use of a private passenger automobile'' (RCW
48.18.2901(1)) without notice, and once in RCW 48.18.299, which prohibits an insurer
from terminating a "contract of [disability] insurance."
                                              10
State v. Mau, No. 87697-5




WE CONCUR:




                            11
State v. Mau, No. 87697-5 (Gonzalez, J. dissenting)




                                         No. 87697-5

       GONZALEZ, J. (dissenting) -The State charged Jennifer Mau with making a

false claim of loss under a contract of insurance after she claimed that monsoon rains

on a nearly rainless day had seeped through her rented U-Haul truck and damaged her

property. Ample evidence supports the jury's guilty verdict. I respectfully dissent.

       It is a crime in our State

               for any person, knowing it to be such, to:

                      (a) Present, or cause to be presented, a false or fraudulent claim,
               or any proof in support of such a claim, for the payment of a loss under a
               contract of insurance; or

                       (b) Prepare, make, or subscribe any false or fraudulent account,
               certificate, affidavit, or proof of loss, or other document or writing, with
               intent that it be presented or used in support of such a claim.

RCW 48.30.230(1 ). The majority closely examines whether the State proved that the

specific contract between U-Haul and the Republic Western was a contract of

insurance under relevant statutes and regulations. Not surprisingly, as the contract is

not in the record, the majority concludes that it had not.
State v. Mau, No. 87697-5 (Gonzalez, J. dissenting)

       But our role here is to decide whether Mau has established that there was not

sufficient evidence presented to sustain the jury's verdict. "A sufficiency challenge

admits the truth of the State's evidence and accepts the reasonable inferences to be

made from it." State v. O'Neal, 159 Wn.2d 500, 505, 150 P.3d 1121 (2007) (citing

State v. Salinas, 119 Wn.2d 192, 201, 829 P.2d 1068 (1992)). Evidence is sufficient if

any rational jury could have found the element in question. State v. Eckenrode, 159

Wn.2d 488, 494, 150 P.3d 1116 (2007) (citing Salinas, 119 Wn.2d at 201).

Circumstantial evidence may support a verdict. Eckenrode, 159 Wn.2d at 495 (citing

Rogers Potato Serv., LLC v. Countrywide Potato, LLC, 152 Wn.2d 387, 392, 97 P.3d

745 (2004)). In fact, pattern jury instruction 5.01 given in this case told the jury that

evidence may be direct or circumstantial and that "[ o]ne is not necessarily more or

less valuable than the other." Clerk's Papers at 42; 11 WASHINGTON PRACTICE:

WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 5.01, at 170 (2008).

       Here, there is ample circumstantial evidence that Mau presented a false claim

of loss under a contract of insurance. The State presented testimony from the claims

adjustor, Michael Larson, who handled Mau's claim. Larson testified, among other

things, that he worked for "Republic Western Insurance Company" and that his

company "handles claims for U-Haul who is self-insured." 1 Report of Proceedings

(RP) (Sept. 22, 2010) at 36 (emphasis added). He testified he was a special

investigator, whose job it was "[t]o investigate questionable claims." !d. at 37

                                                2
State v. Mau, No. 87697-5 (Gonzalez, J. dissenting)

(emphasis added). He testified that based on Mau's report, he had "open[ed] up a

genera/liability claim" and that if the facts alleged had been proved, he would have

treated it as a "genera/liability claim" and paid for the loss. Id. at 39 (emphasis

added). Mau herself testified that she was called by "the insurance adjustor" who

"needed to meet with me to discuss this insurance claim." 2 RP (Sept. 23, 2010) at

285. Words like "insurance," "claim," and "general liability" are all strongly

associated with insurance contracts. This alone was sufficient for a rational jury to

find Mau submitted a false claim under a contract of insurance.

       Further, I am not as sanguine as the majority that the State properly conceded

that the Safemove policy would not qualify as a contract of insurance under this

statute. The State asked Larson, "When someone rents aU-Haul from aU-Haul

facility, what type of insurance do they have on that?" 1 RP (Sept. 22, 2010) at 38.

He responded that

       U-Haul is self-insured. There's typically two types of claims that we see.
       Generalliablity claims would be claims where if there was a defect and it
       would fall under a general liability. The other applicable coverage would be
       safe move protection is what we like to call it. It's a coverage, it's not like an
       insurance, but it's a coverage and it would cover the cargo in the even[t] of an
       accident.

Id. at 38-39. The jury was also given the original Safemove contract Mau signed. Ex.

25. That contract says specifically:




                                                3
State v. Mau, No. 87697-5 (Gonzalez, J. dissenting)

              SAFEMOVE BENEFITS INCLUDE:

              DAMAGE WAIVER PROTECTION- relieves you of financial
              responsibility for damage to U-Haul equipment.

               CARGO PROTECTION- coverage for your possessions.

              MEDICAL AND LIFE PROTECTION- coverage for you and your
              passengers.

!d. The record supports the conclusion that Mau made a claim under this contract. 1

RP (Sept. 22, 2010) at 38. Again, "coverage," "protection," "benefits," and "waiver"

are all language from which a rational jury could conclude a contract of insurance

existed.

       I respectfully dissent.




                                                4
State v. Mau, No. 87697-5 (Gonzalez, J. dissenting)




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