A Case Against Restitution After a Denver Car Accident
POSTED BY Scott O’Sullivan
November 16, 2017
From time to time in my personal injury law firm in Denver, CO, we are approached by victims of car accidents who want to know about restitution. Typically, we advise car accident victims against taking this action because there are all kinds of ways that they may seek reimbursement in the civil courts – primarily from both parties’ insurance companies.
“Restitution” is a legal term for when the court orders a defendant to compensate a victim for losses suffered as a result of a crime, and is imposed as a condition of a defendant’s sentence in the criminal case.
Losses that may be claimed as restitution generally include outstanding medical bills, counseling expenses and out-of-pocket expenses. Losses that cannot be included as restitution are things like pain and suffering, loss of enjoyment of life, loss of future earnings and exemplary damages.
However, victims injured in car crashes can recover both monetary losses and non-economic losses through a civil case.
If a victim wishes to seek restitution in criminal courts, he or she must work with the district attorney.
Restitution is not intended to be the sole source of reimbursement for many costs associated with car accidents. The law in Colorado for non-felony motor vehicle crimes only allows a judge to order restitution for the portion of a victim’s losses that are not covered by the defendant’s insurance policy or any other applicable insurance. This is why the number-one goal if you are injured in a car accident should be to seek payment from the at-fault driver’s insurance company and from your own insurance through the civil court process. This is why we have insurance in the first place!
In fact, personal injury attorneys cannot represent car or motorcycle accident victims in the criminal courts. The decision to press charges in a criminal case is up to the district attorney. Similarly, if a victim wishes to seek restitution in criminal courts, he or she must work with the district attorney.
Victims might also have access to the Colorado Crime Victim Compensation Fund. The Victim Compensation Fund provides up to $30,000 for out-of-pocket expenses not covered by insurance or other collateral resources, or up to $2,000 in emergency funds directly related to the crime. (This fund is not taxpayer funded.) However, if you receive compensation from this fund and then you are later reimbursed for the same expenses through the insurance companies, you must reimburse the fund for the money you received.
In general, it’s not worth it to seek restitution in the criminal courts. It’s better to make sure you have as much insurance as you can afford because you can’t rely on the other driver to have enough insurance to cover your damages, losses and medical bills.
I’ve included the Colorado statute language for “awarding compensation” and for “restitution” below. If you have any questions, don’t hesitate to email or call me today at (303) 388-5304.
C.R.S.A. § 24-4.1-108
24-4.1-108. Awarding compensation
(1) A person is entitled to an award of compensation under this part 1 if:
(a) The person is a victim or a dependent of a victim or a successor in interest under the “Colorado Probate Code”1 of a victim of a compensable crime which was perpetrated on or after July 1, 1982, and which resulted in a loss;
(b) The appropriate law enforcement officials were notified of the perpetration of the crime allegedly causing the death of or injury to the victim within seventy-two hours after its perpetration, unless the board finds good cause exists for the failure of notification;
(c) The applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant or the board has found good cause exists for the failure to cooperate;
(d) Repealed by Laws 1989, H.B.1302, § 3.
(e) The death of or injury to the victim was not substantially attributable to his wrongful act or substantial provocation of his assailant; and
(f) The application for an award of compensation under this part 1 is filed with the board within one year of the date of injury to the victim or within such further extension of time as the board, for good cause shown, allows. For purposes of this paragraph (f), “good cause” may include but is not limited to circumstances in which a crime has remained unsolved for more than one year.
(1.5) A person is entitled to an award of compensation for property damage under this part 1 if:
(a) The person is a victim of a compensable crime which was perpetrated on or after July 1, 1983, and which resulted in property damage;
(b) The appropriate law enforcement officials were notified of the perpetration of the crime causing property damage within seventy-two hours after its perpetration, unless the board finds good cause exists for the failure of notification;
(c) The applicant has cooperated fully with law enforcement officials in the apprehension and prosecution of the assailant or the board has found good cause exists for the failure to cooperate; and
(d) The application for an award of compensation for property damage under this part 1 is filed with the board within six months of the date of property damage or within such further extension of time as the board, for good cause shown, allows.
(2) The board may waive any of the requirements set forth in this section, or the limitations set forth in section 24-4.1-109(1), or order a denial or reduction of an award if, in the interest of justice, it is so required.
(3) Upon a finding by the board that compensation should be awarded, the board shall submit a statement of award to the court administrator who shall remit payment in accordance with the statement of award.
(4) Consistent with approved standards established pursuant to section 24-4.1-117.3(3) for the administration of crime victim compensation funds, the board may develop policies to ensure that primary victims are compensated and to ensure that available moneys in the fund are not exceeded.
(1) Every order of conviction of a felony, misdemeanor, petty, or traffic misdemeanor offense, except any order of conviction for a state traffic misdemeanor offense issued by a municipal or county court in which the prosecuting attorney is acting as a special deputy district attorney pursuant to an agreement with the district attorney’s office, shall include consideration of restitution. Each such order shall include one or more of the following:
(a) An order of a specific amount of restitution be paid by the defendant;
(b) An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined;
(c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or
(d) Contain a specific finding that no victim of the crime suffered a pecuniary loss and therefore no order for the payment of restitution is being entered
(2) The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this information to the court prior to the order of conviction or within ninety-one days, if it is not available prior to the order of conviction. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney’s ability to determine restitution.
(3) Any order for restitution may be:
(a) Increased if additional victims or additional losses not known to the judge or the prosecutor at the time the order of restitution was entered are later discovered and the final amount of restitution due has not been set by the court; or
(I) With the consent of the prosecuting attorney and the victim or victims to whom the restitution is owed; or
(II) If the defendant has otherwise compensated the victim or victims for the pecuniary losses suffered.
(4)(a)(I) Any order for restitution entered pursuant to this section is a final civil judgment in favor of the state and any victim. Notwithstanding any other civil or criminal statute or rule, any such judgment remains in force until the restitution is paid in full. The provisions of article 18.5 of title 16, C.R.S., apply notwithstanding the termination of a deferred judgment and sentence or a deferred adjudication, the entry of an order of expungement pursuant to section 19-1-306, C.R.S., or an order to seal entered pursuant to part 7 of article 72 of title 24, C.R.S.
(II) Notwithstanding the provisions of subparagraph (I) of this paragraph (a), two years after the presentation of the defendant’s original death certificate to the clerk of the court or the court collections investigator, the court may terminate the remaining balance of the judgment and order for restitution if, following notice by the clerk of the court or the court collections investigator to the district attorney, the district attorney does not object and there is no evidence of a continuing source of income of the defendant to pay restitution. The termination of a judgment and order pursuant to this subparagraph (II) does not terminate an associated judgment against a defendant who is jointly and severally liable with the deceased defendant.
(b) Any order for restitution made pursuant to this section is also an order that:
(I) The defendant owes simple interest from the date of the entry of the order at the rate of eight percent per annum; and
(II) The defendant owes all reasonable and necessary attorney fees and costs incurred in collecting such order due to the defendant’s nonpayment.
(c) The entry of an order for restitution under this section creates a lien by operation of law against the defendant’s personal property and any interest that the defendant may have in any personal property.
(d) Any order of restitution imposed shall be considered a debt for “willful and malicious” injury for purposes of exceptions to discharge in bankruptcy as provided in 11 U.S.C. sec. 523.
(e) The clerk of the court is authorized to adjust the unpaid balance in the case upon proof that any restitution or related interest amounts have been or will be satisfied outside of the court registry and receipting process regardless of when the restitution order and judgment were entered. The accounting adjustment does not modify a court’s order.
(5) If more than one defendant owes restitution to the same victim for the same pecuniary loss, the orders for restitution shall be joint and several obligations of the defendants.
(6) Any amount paid to a victim under an order of restitution shall be set off against any amount later recovered as compensatory damages by such victim in any federal or state civil proceeding.
(7) When a person’s means of identification or financial information was used without that person’s authorization in connection with a conviction for any crime in violation of part 2, 3, or 4 of article 4, part 1, 2, 3, or 7 of article 5, or article 5.5 of this title, the sentencing court may issue such orders as are necessary to correct a public record that contains false information resulting from any violation of such laws. In addition, the restitution order shall include any costs incurred by the victim related to section 16-5-103, C.R.S.
(8)(a) Notwithstanding the provisions of subsection (1) of this section, for a non-felony conviction under title 42, C.R.S., the court shall order restitution concerning only the portion of the victim’s pecuniary loss for which the victim cannot be compensated under a policy of insurance, self- insurance, an indemnity agreement, or a risk management fund.
(b) The court, in determining the restitution amount, shall consider whether the defendant or the vehicle driven by the defendant at the time of the offense was covered by:
(I) A complying policy of insurance or certificate of self-insurance as required by the laws of this state;
(II) Self-insurance including but not limited to insurance coverage pursuant to the provisions of part 15 of article 30 of title 24, C.R.S.; or
(III) Any other insurance or indemnity agreement that would indemnify the defendant for any damages sustained by the victim.
(c)(I) Except as otherwise provided in this paragraph (c), a court may not award restitution to a victim concerning a pecuniary loss for which the victim has received or is entitled to receive benefits or reimbursement under a policy of insurance or other indemnity agreement.
(II)(A) A court may award a victim restitution for a deductible amount under his or her policy of insurance.
(B) Deleted by Laws 2004, Ch. 255, § 28, eff. May 21, 2004.
(d)(I) Deleted by Laws 2004, Ch. 255, § 28, eff. May 21, 2004.
(II) Nothing in this paragraph (d) shall prohibit a nonowner driver or passenger in the vehicle from being awarded restitution if the driver or passenger was not covered by his or her own medical payments coverage policy.
(e)(I) Notwithstanding any provision of law to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to defend a defendant in a hearing concerning restitution. No court shall interpret an indemnity or insurance contract so as to obligate an insurance company, risk management fund, or public entity to defend a defendant at a restitution hearing absent a specific agreement.
(II) Notwithstanding any provision of law, indemnity contract, or insurance contract to the contrary, an insurance company, risk management fund, or public entity shall not be obligated to pay or otherwise satisfy a civil judgment entered pursuant to this part 6, or to indemnify a defendant for an amount awarded in a restitution order.
(f) Nothing in this article shall be construed to limit or abrogate the rights and immunities set forth in the “Colorado Governmental Immunity Act”, article 10 of title 24, C.R.S.
(g) The provisions of this subsection (8) shall not preclude the court, pursuant to article 4.1 of title 24, C.R.S., from ordering restitution to reimburse an expenditure made by a victim compensation fund.
(9) For a conviction for human trafficking for involuntary servitude, as described in section 18-3-503, or for human trafficking for sexual servitude, as described in section 18-3-504, the court shall order restitution, if appropriate, pursuant to this section even if the victim is unavailable to accept payment of restitution.
(10)(a) If, as a result of the defendant’s conduct, a crime victim compensation board has provided assistance to or on behalf of a victim pursuant to article 4.1 of title 24, C.R.S., the amount of assistance provided and requested by the crime victim compensation board is presumed to be a direct result of the defendant’s criminal conduct and must be considered by the court in determining the amount of restitution ordered.
(b) The amount of assistance provided is established by either:
(I) A list of the amount of money paid to each provider; or
(II) If the identity or location of a provider would pose a threat to the safety or welfare of the victim, summary data reflecting what total payments were made for:
(A) Medical and dental expenses;
(B) Funeral or burial expenses;
(C) Mental health counseling;
(D) Wage or support losses; or
(E) Other expenses.
(c) Records of a crime victim compensation board relating to a claimed amount of restitution are subject to the provisions of section 24-4.1-107.5, C.R.S.