Gary Bell Jr. and Brad Pollock
Even if you receive a settlement in your civil case, you may still be able to receive an additional award of restitution in the criminal case, for things not covered by the offender’s insurance policy. The purpose of a restitution order is to decrease the financial burden caused by the crime and to preserve the individual dignity of victims.
Colorado’s restitution law requires that in every conviction for a felony, misdemeanor, petty or traffic misdemeanor offense, (this would include an automobile accident), that the court shall either award restitution to the victim or make a specific finding that no victim of the crime suffered a loss. Restitution is an order of the court by which offenders are held accountable for the financial losses they cause to the victims of their crimes. A victim may be any individual or an entity directly and immediately aggrieved by the offender’s negligent or criminal conduct.
Expenses that may be reimbursed as restitution include:
- out-of-pocket expenses incurred from emotional or psychological treatment,
- anticipated future expenses,
- rewards paid by victims,
- adjustment expenses,
- moving expenses,
- anticipated medical expenses,
- other losses or injuries proximately caused by a defendant’s conduct, and
- pre-judgment interest at a rate of 8% annum and post judgment interest at a rate of 12% annum.
Restitution does not include:
- pain and suffering,
- lost enjoyment of life,
- loss of future earnings, and
- punative damages.
The prosecutor of the criminal case that has the burden of proving, by a preponderance of the evidence that a loss was proximately caused by an offender’s conduct. [Although your civil attorney may advocate for you concerning restitution, it is the prosecutor who presents your case for restitution to the court.] This may be done through victim impact statements, testimony at trial or through the testimony by the victim at a hearing. The offender, has an opportunity to question the restitution requested and may ask the court for a restitution hearing. When the final restitution amount is determined by the court, the offender will be required to make restitution payments.
Restitution is paid into the Court Registry, which distributes the payment to each of the crime victims named in the courts restitution order. If an offender claims he cannot pay the full amount of restitution, he will be assigned a collections investigator who will assess the defendant’s financial ability to pay the restitution. A payment schedule may be set up to allow restitution payments over time. In the case of a juvenile defendant, the collections investigator may conduct the investigation into the juvenile’s parents or legal guardian’s financial circumstances, as well as that of the juvenile. An order for restitution is a final civil judgment that will survive the offender’s death and may not be discharged in bankruptcy proceedings. However, juvenile restitution orders may be discharged in bankruptcy proceedings.
If the defendant fails to make timely payments, there are various measures the court, the collections investigator, can take. These include, but are not limited to the following:
- make a demand for payment,
- assess late fees,
- garnish or attach wages,
- property liens,
- intercept state income tax refunds;
- refer to an outside collection agency, and
- suspend the offender’s driver’s license.
Until the restitution is paid in full, it is considered a final civil judgment. Restitution orders are subject to interest and 12%. The defendant must also pay reasonable and necessary attorney fees and costs incurred in collecting restitution if the offender does not pay. A restitution order cannot be discharged in bankruptcy because it’s considered “willful and malicious” injury. Any restitution paid to a victim may be considered a set off against any amount recovered as compensatory damages by the victim in any federal or state civil proceeding. The converse is also true in that funds recovered in civil proceeding may offset a restitution award in either a felony or non-felony criminal case.
The impact of insurance during restitution proceedings depends on the conviction. For non-felony convictions, the court shall order restitution for only the portion of the victim’s pecuniary loss for which the victim cannot be compensated under a policy of insurance. The court may not award restitution to the victim concerning a pecuniary loss which the victim has received or is entitled to receive benefits or reimbursement under the a policy of insurance or any other indemnity agreement. This rule does not apply to felony convictions. Insurance carriers are not required to defend their insured at arestitution hearing, absent specific contractual obligation.
Even if you receive a civil award from an insurance company for losses received an automobile accident, you may still be entitled to restitution as part of the sentence in the criminal case. Restitution seeks to make the crime victim whole. It is important for the plaintiff to consider how restitution will influence his case for losses arising from the incident. When you receive a notice of restitution from the District Attorney’s Office, contact a Denver personal injury lawyer at Bell and Pollock PC to review this information with your attorney to insure that you get any restitution you are entitled to from the criminal case. This will be in addition to what you may receive in the civil case.