Vehicular Homicide Washington Statute
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
(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.
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. Public Employees Mut. Ins. Co. v. Hertz Corp., 59 Wn. App. 641, 644, 800 P.2d 831 (1990)
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 related to an increased risk on the part of the insurer." Hertz Corp., 59 Wn. App. at 644.
In Hertz Corp.the exclusion clause operated to deny recovery to the victims 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.
Arguably, under the majority's analysis, the exclusion in Hertz Corp. would also violate public policy.