Robert Sebastian, Respondent, v. The Department of Labor and Industries, Petitioner, 142 Wash. 2d 280

Johnson, J. — This case involves the

interpretation of

chapter 7.68 RCW, the crime victims’ compensation act (Act). Robert Sebastian’s total uncompensated injuries exceed the maximum amount payable under the statute. The parties in this case dispute how to treat the collateral benefits Sebastian received when calculating benefits payable under the Act. The Court of Appeals agreed with Sebastian that the collateral benefits should be deducted from his total damages, rather than from the statutory cap, as the Department of Labor and Industries (Department) asserts. Sebastian v. Dep’t of Labor & Indus., 95 Wn. App. 121, 123, 974 P.2d 374 (1999). We affirm.

FACTS Sebastian was severely beaten in a criminal assault. His injuries were calculated at $43,788.54. He was granted compensation under the Act; the total amount to be paid is the matter in dispute. The maximum payout under the Act for a single injury or death is $30,000. RCW 7.68.070(13). Sebastian had already received $7,788.54 from the Social Security Administration in time-loss compensation. Sebastian contends “benefits payable” refers to his total amount of injuries as calculated according to the Act, less the amount of Social Security compensation he received.

This leaves him with approximately $36,000 in damages. The Department argues that “benefits payable” refers to the statutory cap and Sebastian should be awarded the statutory cap minus Social Security compensation received, or approximately $22,000. The Department awarded benefits consistent with its theory. Sebastian appealed the Department’s calculation of benefits. An industrial insurance appeals judge agreed with Sebastian and ordered that he receive $30,000. On appeal, the Board of Industrial Insurance Appeals reversed, ordering that Sebastian receive approximately $22,000.

Sebastian appealed to the superior court, where both parties moved for

summary judgment. The Department prevailed. Sebastian appealed to the Court of Appeals, which reversed in a published opinion in favor of Sebastian. Sebastian, 95 Wn. App. at 123. The Department petitioned this court for review, which we granted. ANALYSIS The amount of compensation a crime victim is entitled to under the Act is determined by

chapter 51.32 RCW of the Industrial Insurance Act, with some specific omissions. See RCW 7.68.070. That calculation is not at issue in this case, as the parties agree Sebastian has $43,788.54 in injuries. However, the Legislature limited the total compensation to be awarded crime victims by two provisions of the Act. First, there is a $30,000 statutory cap. RCW 7.68.070(13). Second, the award will be reduced by certain other compensatory payments. This reduction is set out in RCW 7.68.130, which states in relevant part:

(1) Benefits payable pursuant to this

chapter shall be reduced by the amount of any other public or private insurance available ....

(3) Payment by the department under this

chapter shall be secondary to other insurance benefits .... RCW 7.68.130. To resolve this case, we must determine the definition of “benefits payable.” The Department’s question of whether “benefits payable” means the statutory cap or the amount of loss calculated under Title 51 RCW was answered by this court in Standing v. Department of Labor & Industries, 92 Wn.2d 463, 598 P.2d 725 (1979). However, the issue decided in Standing was whether the equal protection clause of the Fourteenth Amendment to the United States Constitution allowed benefits under the Act to be reduced by any outside compensation.

Standing, 92 Wn.2d at 467. This court found such reductions to be constitutional. Standing, 92 Wn.2d at 469. Standing offers little guidance in resolving the statutory

interpretation question presented here. Sebastian’s reading of this statute is reasonable. Since the statute directs the total damages be calculated pursuant to

chapter 51.32 RCW, it is reasonable that the total damages would be the amount awarded but for the statutory cap and the reduction for other benefits. The Department’s reading of this statute is also reasonable. Since the statute limits payment, more damages will not be payable. Since both the Department’s and Sebastian’s

interpretations of “benefits payable” are reasonable, we find the statute ambiguous. See In re Sehome Park Care Ctr., Inc., 127 Wn.2d 774, 778, 903 P.2d 443 (1995) (holding statutes susceptible to more than one

interpretation ambiguous). As the Court of Appeals noted, the Act is “patently remedial.” Sebastian, 95 Wn. App. at 125; Haddenham v. State, 87 Wn.2d 145, 148, 550 P.2d 9 (1976). We interpret the coverage provisions of remedial statutes broadly, and the limitations on coverage narrowly. Peninsula Sch. Dist. No. 401 v. Pub. Sch. Employees, 130 Wn.2d 401, 407, 924 P.2d 13 (1996).

While the question here is not squarely the scope of a coverage provision, the principle can be applied by analogy, especially since determining which methodology the Legislature intended functions like a determination of the scope of coverage. Further, a remedial statute is construed broadly to accomplish its purpose: here, assuring at least a minimum level of compensation for crime victims through a combination of insurance and Act sources. Stand ing, 92 Wn.2d at 466. While neither

interpretation fully compensates Sebastian, the liberal

interpretation comes nearly $8,000 closer. The liberal

interpretation is consistent with Sebastian’s contention that the calculation under RCW 7.68.130 begins with his damage total as determined under

chapter 51.32 RCW. See also RCW 51.12.010 (the Industrial Insurance Act “shall be liberally construed”). Further, when interpreting ambiguous statutes, we attempt to give force to the intent of the Legislature, considering the act as a whole and any other materials that illuminate legislative intent. Sehome, 127 Wn.2d at 778. Unfortunately, as the Court of Appeals noted, “the legislative intent is not readily apparent, either from the language of the Act or its legislative history.” Sebastian, 95 Wn. App. at 125.

Clearly, there was an intent to compensate crime victims; clearly there was an intent to contain costs. Beyond that, the history gives little guidance, and neither principle answers the question here. We, therefore, conclude “benefits payable” as used in RCW 7.68.130(1) refers to the benefits calculated under the Act, incorporating by reference the benefits schedules laid out in the Industrial Insurance Act.

Since we find “benefits payable” refers to the damages as calculated under the Act, it follows that “[b]enefits payable . . . shall be reduced by the amount of any other public or private insurance available . . .,” RCW 7.68.130(1), and requires that after the determination of damages, insurance benefits (such as the $7,788.54 at issue here) shall be deducted. The statutory cap is then applied. RCW 7.68.070(13). This liberal

interpretation is also consistent with RCW 7.68.130(3), which states: “[p]ayment by the department under this

chapter shall be secondary to other insurance benefits . . . .” While the Act does not function like an insurance provider, it is reasonable the Legislature intended the statute to be interpreted according to principles similar to those governing the interplay between primary and secondary insurance policies. Secondary insurance pays when the primary insurance does not cover all of the damages suffered and is available for the difference between the primary insurance coverage limits and the secondary insurance coverage limits.

See generally 8A John Alan Appleman & Jean Appleman, Insurance Law and Practice § 4909 (1981 & Supp. 2000). By analogy, the Social Security compensation functions like the primary insurance; the Act’s benefits function like the secondary insurance; and the statutory cap functions like the secondary insurance coverage limits. As the Court of Appeals observed, “[w]e find no support for the proposition that the amount paid under the primary coverage must be deducted from the limits of the secondary insurer’s obligation to pay.” Sebastian, 95 Wn. App. at 126.

Therefore, the statutory cap functions like a coverage limit, and not like a substitute for the actual damages suffered. We affirm the Court of Appeals and remand for further proceedings consistent with this opinion. Pursuant to RCW 51.52.130, we grant Sebastian attorney’s fees. Guy, C.J., and Smith, Alexander, Sanders, and Ireland, JJ., concur. We decline to reach the Department’s argument that affirming the Court of Appeals will obligate the Department to overspend its funds.

This issue was raised for the first time in the Department’s motion for reconsideration filed with the Court of Appeals and, therefore, there is no record before this court upon which to review this claim.