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 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SILVERIA LOPEZ-VASQUEZ,                     )
                                            )       No. 66265-1-I
                      Appellant,            )
                                            )       DIVISION ONE
              v.                            )
                                            )       PUBLISHED OPINION
DEPARTMENT OF LABOR AND                     )
INDUSTRIES OF THE STATE OF                  )
WASHINGTON,                                 )
                                            )       FILED: May 14, 2012
                      Respondent.           )

       Grosse, J.     --   One is entitled to victim's compensation for injuries 

sustained from a vehicular assault only if there is a conviction for that vehicular 

assault.   The statute sets forth specific exceptions to the requirement of a 

conviction of vehicular assault, none of which apply to the circumstances here,

where the vehicular assault charge was dismissed              as a result of a plea 

agreement.  Accordingly, we are constrained to affirm the trial court's ruling.

                                        FACTS 

       On November 21, 2005,  Neil Marx's vehicle               struck  Silveria Lopez-

Vasquez's car, killing her 4-year-old son and injuring Lopez-Vasquez.  Marx was 

charged with both vehicular homicide and vehicular assault. Marx pleaded guilty 

to vehicular homicide and the vehicular assault charge was dropped.  In issuing 

the judgment and sentence on the vehicular homicide, the trial judge made a 

finding that Lopez-Vasquez was a victim and "should be eligible for crime  

No. 66265-1-I / 2

victims' compensation as such."  

       The  Department of Labor and Industries (Department) denied Lopez-

Vasquez's application for victim's compensation because her injuries were not a 

result of a conviction for vehicular assault.  Lopez-Vasquez appealed the denial 

to the Board of Industrial Appeals (Board),         which  upheld the  Department's 

earlier rulings.  Lopez-Vasquez appealed to the superior court, which affirmed

the Board's findings of fact and conclusions of law. She now appeals that ruling.

                                      ANALYSIS 

       To recover as a victim for vehicular assault, the statute is clear that there 

must be a conviction.  The statute provides in part:

       (5) "Criminal act" means an act committed or attempted in this state which 
       is: (a) Punishable as a federal offense that is comparable to a felony or 
       gross misdemeanor in this state; (b) punishable as a felony or gross 
       misdemeanor under the laws of this state; (c) an act committed outside 
       the state of Washington against a resident of the state of Washington 
       which would be compensable had it occurred inside this state and the 
       crime occurred in a state which does not have a crime victims'
       compensation program, for which the victim is eligible as set forth in the 
       Washington compensation law; or (d) trafficking as defined in RCW 
       9A.40.100. A "criminal act" does not include the following:
              (i) The operation of a motor vehicle, motorcycle, train, boat, or
       aircraft in violation of law unless:
              (A) The injury or death was intentionally inflicted;
              (B) The operation thereof was part of the commission of another
       nonvehicular criminal act as defined in this section;
              (C) The death or injury was the result of the operation of a motor
       vehicle after July 24, 1983, and a preponderance of the evidence 
       establishes that the death was the result of vehicular homicide under 
       RCW  46.61.520, or a conviction of vehicular assault under RCW 
       46.61.522, has been obtained. In cases where a probable criminal 
       defendant has died in perpetration of vehicular assault or, in cases where 
       the perpetrator of the vehicular assault is unascertainable because he or 
       she left the scene of the accident in violation of RCW  46.52.020 or, 
       because of physical or mental infirmity or disability the perpetrator is 
       incapable of standing trial for vehicular assault, the department may, by a 

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No. 66265-1-I / 3

       preponderance of the evidence, establish that a vehicular assault had 
       been committed and authorize benefits.[1]

       Lopez-Vasquez first argues that the Department is collaterally estopped 

from disputing her status as a victim because the judgment and sentence on 

Marx's vehicular homicide specifically found that both she and her son were 

victims for purposes of the victims' compensation act (Act).  Under the doctrine 

of collateral estoppel, once "'an issue of ultimate fact has been determined by a 

valid and final judgment, that issue cannot be relitigated between the same 
parties in any future litigation.'"2  Collateral estoppel applies only when the party 

seeking  estoppel    is able to show that "'(1)      the  issue decided    in  the  prior

adjudication is identical with the one presented in the second action; (2) the prior

adjudication [resulted] in a final judgment on the merits; (3) the party against

whom [collateral estoppel] is asserted was a party or in privity with a party to the

prior adjudication;'" and (4) there is no injustice if the parties are prevented from 
relitigating the issues.3

       All four elements must be proved.4       Failure to establish any one element 

is fatal to the proponent's claim.  "The party asserting collateral estoppel has the 

burden of showing that issues are identical and that they were determined on the 

1 RCW 7.68.020(5)(i)(A)-(C) (formerly RCW 7.68.020(2)(i)(A)-(C) (2006)) 
(emphasis added).
2 State v. Williams, 132 Wn.2d 248, 253-54, 937, P.2d 1052 (1997) (quoting 
Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 1194, 25 L. Ed. 2d 469 (1970)).
3 Thompson v. State, Dep't of Licensing, 138 Wn.2d 783, 790, 982 P.2d 601 
(1999) (quoting Nielson v. Spanaway Gen. Med. Clinic, Inc., 135 Wn.2d 255, 
262-63, 956 P.2d 312 (1998)).
4 Clark v. Baines, 150 Wn.2d 905, 913, 84 P.3d 245 (2004).

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No. 66265-1-I / 4

merits in the first proceeding."5   As noted by the court in LeMond v. State, 

Department of Licensing:

       [A]pplication of collateral estoppel is limited to situations where the issue 
       presented in the second proceeding is identical in all respects to an issue 
       decided in the prior proceeding, and where the controlling facts and 
       applicable legal rules remain unchanged." . . . Further, issue preclusion is 
       appropriate  only  if  the issue raised in the second case involves 
       substantially the same bundle of legal principles that contributed to the 
       rendering of the first judgment, even if the facts and the issue are 
       identical.[6]

In the prior proceeding, the issue decided was whether              there had been a 

vehicular homicide.   There was no finding of vehicular assault and no conviction 

therefor.  The issues are not identical.    The judge's finding that Lopez-Vasquez 
was a victim was extraneous to the matter that was before him.7          Moreover, the 

parties were not identical.  The Department was not privy to the determination of 

Lopez-Vasquez as a victim for purposes of the Act.

       Lopez-Vasquez next argues that her situation falls within the ambit of the 

exception to the conviction for vehicular assault.            She contends     that the 

prosecutor's decision to remove the vehicular assault charge and accept a guilty 

plea on the vehicular homicide made the defendant unavailable for prosecution 

as defined in former RCW 7.68.020(2)(i)(A)-(C), thus permitting Lopez-Vasquez 

to recover benefits. 

5 Luisi Truck Lines, Inc. v. Wash. Util. & Transp. Comm'n, 72 Wn.2d 887, 894, 
435 P.2d 654 (1967) (citation omitted) (internal quotation marks omitted).
6 143  Wn. App. 797, 805, 180 P.3d 829 (2008) (citations omitted) (internal 
quotation marks omitted). 
7 See McDaniels v. Carlson, 108 Wn.2d 299, 305, 306, 738 P.2d 254 (1987) (no 
identity of issues between paternity finding in prior dissolution and paternity 
action because issue of paternity was not actually litigated in dissolution, only 
presumed).

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No. 66265-1-I / 5

       "Construction of a statute is a question of law reviewed de novo."8  The 

statute is clear about exceptions to the conviction.  It specifically sets forth two 

instances in which the Department may, by a preponderance of the evidence,

establish a vehicular assault and authorize benefits: (1) where the perpetrator is 

unascertainable because he has left the scene of the accident or, (2) where the

perpetrator  is  incapable of standing trial because of a "physical or mental 
infirmity or disability."9 Neither of those specific conditions exist here.

       When a statute includes specific  situations          wherein    it applies, the 
implication is that other situations are intentionally omitted.1  Originally the Act 

excluded vehicular crimes from its definition of "criminal act" except where
intentionally inflicted or part of the commission of another criminal act.11        The 

Laws of 1983, chapter 239, § 4 created an "exception to the exception" whereby 
certain vehicular crimes became         covered    under the Act.12       In 1987, the 

legislature added further exceptions to the vehicular crime exclusion permitting 

the Department to determine whether vehicular assault had been committed by a 
preponderance of the evidence in certain specific circumstances.13  

Unfortunately, dismissing a charge as part of a guilty plea agreement for the 

same act involving a different victim does not fall within the ambit of those

specific exceptions set forth by the legislature.

8 Anthis v. Copland, 173 Wn.2d 752, 755, 270 P.3d 574 (2012).
9 RCW 7.68.020(5)(i)(C).
1 In re Det. of Strand, 167 Wn.2d 180, 190, 217 P.3d 1159 (2009).
11 Laws of 1973, 1st Ex. Sess., ch. 122 § 2.
12 Bennett v. Dep't of Labor & Indus., 38 Wn. App. 681, 682 n.2, 687 P.2d 882 
(1984).
13 Laws of 1987, ch. 281, § 6 (codified as former RCW 7.68.020(2)(i)(A)-(C)).

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No. 66265-1-I / 6

       Accordingly, we are constrained to affirm.

WE CONCUR:

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