State v. Hovrud

805 P.2d 250, 60 Wash. App. 573, 1991 Wash. App. LEXIS 55

• Court: Court of Appeals of Washington
• Decided: February 22, 1991
• Docket: 13082-3-II
• Status: Published

Opinions

Worswick, C.J.

The State appeals an order in arrest of judgment (CrR 7.4), setting aside Kurt Hovrud's conviction for false swearing. RCW 9A.72.040. We affirm.

Hovrud allegedly lied under oath while being interrogated by his insurance company's lawyer, who was investigating Hovrud's fire loss claim. The examination under oath was required by a provision in Hovrud's standard form insurance policy.

RCW 9A.72.040 provides, in relevant part:

(1) A person is guilty of false swearing if he makes a false statement, which he knows to be false, under an oath required or authorized by law.

(Italics ours.) Unlike the statutes involved in People v. Watson, 85 Ill. App. 3d 649, 406 N.E.2d 1148 (1980) and State v. Devitt, 82 Wis. 2d 262, 262 N.W.2d 73 (1978) on which the dissent relies, RCW 9A.72.010(3) defines the phrase "required or authorized by law", as follows:

[a]n oath is "required or authorized by law" when the use of the oath is specifically provided for by statute or regulatory provision . . .

The State argues that the requirement of statutory authorization was satisfied in this case because Hovrud's insurance policy, a "standard fire policy," permitted an examination under oath and was an approved policy under a regulation promulgated within his statutory authority by the Insurance Commissioner,¹ We disagree.

A penal statute must be literally and strictly construed in favor of the accused. State v. Hornaday, 105 Wn.2d 120, 127, 713 P.2d 71 (1986). The statute must give a definite warning of the prohibited conduct. State v. Dougall, 89 Wn.2d 118, 121, 570 P.2d 135 (1977).² RCW 9A.72.040 did not warn Hovrud that he would be exposed to criminal prosecution by taking the insurance company's oath.

The dissent argues that the requirement that the oath be specifically provided for by the regulation is satisfied because of a statutory principle of incorporation by reference. The dissent would extend that principle to hold that a regulation incorporates by reference all provisions of an insurance policy, including the oath provision in Hovrud's policy that the regulation by inference permitted but did not require. The argument is flawed for two reasons.

First, the dissent offers no authority and we know of none for the proposition that a statute incorporates other statutes by reference without ever referring to them. Knowles v. Holly, 82 Wn.2d 694, 513 P.2d 18 (1973), on which the dissent relies, simply dealt with the validity of common "reference statutes": legislation that both refers to and, by reference adopts, previous legislation. WAC 284-20-010(3) incorporates nothing by reference; it merely authorizes any form of insurance policy that, vis-a-vis policyholders, is at least as generous as the "standard" policy it identifies. Second, the dissent fails to reconcile its proposed application of this incorporation by reference principle, the only purpose of which is to save paper in the statute books (Knowles, 82 Wn.2d at 700), with the strict construction principles always applied to criminal legislation. See State v. Sayler, 36 Wn. App. 230, 673 P.2d 870 (1983).³ See also Ex parte Pack, 51 Okla. Crim. 277, 1 P.2d 817 (1931).

Every word in a statute must be given effect whenever possible, and every word not defined in the statute must be given its ordinary meaning. Northwest Steel Rolling Mills, Inc. v. Department of Rev., 40 Wn. App. 237, 698 P.2d 100, review denied, 104 Wn.2d 1006 (1985). At bottom, one word — "specifically"—controls this case. The word means "with exactness and precision : in a definite manner." Webster's Third New International Dictionary 2187 (1969). An oath is hardly "specifically provided for" by a regulation that does not refer to it at all.

Affirmed.

Morgan, J., concurs.

1 RCW 48.18.120 provides, in relevant part:

" (1) The [insurance] commissioner shall, after hearing, from time to time promulgate such rules and regulations as may be necessary to define and effect reasonable uniformity in all basic contracts of fire insurance which are commonly known as the standard form fire policies and may be so referred to in this code, and the usual supplemental coverages, riders, or endorsements thereon or thereto, to the end that such definitions shall be applied in the construction of the various sections of this code wherein such terms are used and that there be a reasonable concurrency of contract where two or more insurers insure the same subject and risk. ..."

WAC 284-20-010(3) provides:

” (3) Except for the provisions of the next succeeding three paragraphs, no company shall issue any basic contract of fire insurance covering property or interest therein in this state other than on the form known as the 1943 New York Standard Fire Insurance Policy, herein referred to as the 'standard fire policy':

"(c) As an alternative form, a form written in clear, understandable language, which provides terms, conditions and coverages not less favorable to the insured than the 'standard fire policy,' may be used. ..." (Italics ours.)

2 The dissent argues that Dougall is distinguishable. Surely it is, but the principle for which we cite it is not.

3 The "reference statute" principle has been used in criminal legislation, but only for the same space-saving purposes for which it is applied in the civil field. See Bellevue v. Mociulski, 51 Wn. App. 855, 858, 756 P.2d 1320 (1988).