*1 HALTOM, Appellant Jedediah
(Defendant below), Indiana, Appellee
STATE below).
(Plaintiff
No. 84S01-0409-CR-434. of Indiana.
Supreme Court
Aug.16,2005.
970 *2 carrier, In-
Haltom's insurance Nationwide Company, surance injuries suffered. the advice of her she On Meyer private attorney, agreed ex- $100,000.00 to release Nation- change for Insurance, Haltom, Haltom's wide and mother, Stone, Cindy any from further liability damages arising for from the acci- part, Meyer agreed In relevant dent. that: AND IN OF
FOR CONSIDERATION of ONE payment the sum me/us AND HUNDRED THOUSAND 00/100 Cook, Haute, Appel- Jessie A. Terre ($100,00.00)dollars, good and other and lant. consideration, I/we, being of valuable Carter, Attorney Steve General age, lawful have released and dis- Indiana, Kobe, A. Attor- Deputy Andrew charged, presents do for General, ney Indianapolis, Appellee. heirs, my/our myself/ourselves, adminis- trators, release, assigns, executors SULLIVAN, Justice. acquit discharge Cindy and forever Haltom crashed his truck into Jedediah Stone and Jedediah Haltom and Nation- driving a woman's car while under the all any wide Insurance and other influence. He settled with her for his car persons corporations, whether here- limits, and she executed a re- insurance's not, to or of and named or referred any lease from future or any past, present and all and fu- "of whatever nature." In the collat- action, claims, actions, ture causes of prosecution, argued eral criminal Haltom demands, service, costs, damages, loss of cash restitu- that the trial court's award of expenses, compensation, party third ac- tion to the victim violated the release. tions, in equity, including suits at law or authority The trial court had to award claims for suits or contributions and/or contract which private restitution: nature, indemnity, all of whatever neither the nor the court are State of, consequential damage on account or authority of impinge upon cannot any way growing out of and all impose to seek and the court to State injuries, personal known or unknown criminal sanction. death, property damage resulting and/or Background or to result from an accident that oc- 21, 2001, On June Jedediah Haltom curred on or about 6-21-01 at or near Meyer's truck car. drove his into Linda D. STREET, HAUTE, TERRE 15TH Haltom's aleohol content at the time blood COUNTY, VIGO INDIANA. of the collision measured .179%. As a re- Meyer payment Ex. 2. Def.'s received crash, Meyer sult of the suffered serious $100,000.00 from Nationwide Insurance on injuries neurological head and and subse- 18, 2001, $27,956.68 in limit ex- December which was the quently accrued medical policy. Haltom's penses wages. and lost After the start of Haltom's eriminal tri- Before Haltom's criminal trial com- al, attorney, menced, Meyer, through her Meyer entered into civil settle- 23, 2001, filed a Restitution Claim on Feb- agreement ment on October Victim's objected Mey pating investigation in the trial ruary restitution claim on the basis she er's the crime. right to do so under the had waived her (1998). 85-50-5-8(a)(2), § Ind.Code signed she had on October release "(aln The statute further instructs *3 pled guilty causing to seri 2001. Haltom (a) of order restitution under subsection bodily injury operating ous while a motor (1) does not a civil action damages bar for: a alcohol content meas
vehicle with
blood
require
person
that the court did not
uring
than.10.1
greater
pay
to
to the victim under the restitution
sentencing hearing,
At his
the State
injury
property
order but arise from an
or
asked that the trial court order Haltom to
damage that
is the
of
basis
restitution
trial court sentenced
pay restitution. The
(2)
court;
by
ordered
other dam-
probation
period
Haltom to
and a
of home
ages
suffered
the victim."
Ind.Code
detention. Further the court ordered Hal-
(2) (1998).
35-50-5-8(e)(1),
§
community
tom to serve 100 hours of
ser-
"Restitution, as a condition of
$27,956.88
to
vice and to
restitution
probation,
part
can be an instrumental
of
Meyer.
appealed
the court's resti-
the offender's rehabilitation." Miller v.
tution order.
State,
(Ind.1986).
502 N.E.2d
95
While
Appeals
reversed. Hal
Court
principal purpose
its
to
is
vindicate the
State,
(Ind.Ct.App.
tom v.
However, a civil settle Conclusion allowing altogether preclude ment trans granted Having previously power the State's infringe upon no fer, settlements have we hold that civil punishment. criminal See U.S. administer of a criminal power on the preclusive effect *4 (6th Bearden, Cir. 274 F.3d 1041 v. The trial to order restitution. court 2001) "private that (advancing policy the affirmed. for restitution is court's order allowed to thwart should not be individuals sys justice the criminal penal goals DICKSON, J., RUCKER, J., concurs. or settle by entering into releases tem BOEHM, opinion. separate concurs with The State is wrongdoers"). ments with in J., part in part concurs and dissents standing to only party with exercise SHEPARD, C.J., separate opinion. with Dobeski, v. 739 power. See Johnston such separate opinion. dissents with (Ind.2000) (the N.E.2d 128 State Justice, DICKSON, concurring. only parties two defendant are the sentencing pro in standing a criminal coneur, only to separately I and write ceeding). available to courts point out an alternative criminal restitution. ordering today, nothing to
By holding our we do ability to settle constrain the 85-50-5-3 author- Indiana Code Section the commencement disputes prior "to the victim izes an order of restitution pro- of collateral eriminal or conclusion may It well be that some of the crime." to enter ceedings. Parties remain free cases, liability insurance the "vietim" is the matters, agreements to settle civil into already paid full carrier that has they that will do so. But we are confident injured charged person to a courts, courts, not the eriminal are the civil situation, criminal conduct. In such mat- adjudicate proper venue of a defen- may court seek rehabilitation Hicks, 174 Ramsey Ind. ters. See accountability through by requiring dant that it is (noting 91 N.E. restitution, the restitution but direct civil courts to deter- prerogative of the ultimately entity that suf- be made to the meaning legal effect of civil mine the loss, could which some cases fered contracts). including aggrieved party, An company. be an insurance defendant, remains free to seek a criminal case, Meyer In because suf- present of the terms of a release enforcement inju- neurological head and per- courts are fered serious civil court. Our criminal deducting attorney ed in civil cases. After instant case the trial court ordered In the $27,956.88 pay fees, one-third, in restitution to Haltom to typically she would have $67,000, Meyer the basis that: a little on received in hand about damages. The more than twice her actual for the full value of her If a restitution order why [Meyer] should not Court does not see before expenses had been entered actual could have the same benefit she Meyer with Defendant's insur- Mrs. settled length of had waited the received if she easily quali- company, would have ance she get this case resolved. time it took to the maximum his insurance fied for App. suffering Appellant's at 21. pain that is award- expenses and incurred medical and these cireumstances. If ries there is fact a $27,956.68, wages totaling lost and Nation- Haltom, judgment against collectible Company paid Insurance its full lia- wide gets the benefit could have been resolved likely bility limits of it is by agreement concurrent with the initial proceeds represent such insurance less settlement of the victim's claim than full for her Or, Haltom. as appears to be the case sustained and to be sustained. The award here, it open could have been left to future her, of further restitution to rather than to resolution, in ordinary princi- which case Insurance, appears ap- Nationwide thus ples estoppel, indemnity subroga- propriate. apply. way, tion Either it seems to me
I also observe that the fact of the most issues the Chief Justice and/or contingent attorney amount of fees disappear identifies because both the in- curred should not be surer and the victim will settle the tort relevant consideration this determina- against Haltom, not, claim on based tion. the trial While court here referred claim, their valuations of that plus the fees, attorney to consideration of value, if any, they assign to prospect equal amount of restitution ordered was to a restitution award that agreed to bene- *5 Meyer's special damages, pre- not her party. fit that gets Whoever the benefit of fees, attorney sumed and thus was consis- award, any restitution it will not reduce tent with the criminal court's interests in payment the net to the victim below reformation of the defendant. negotiated settlement amount. Nor benefit, should it inure to if Haltom's it is BOEHM, J., in concurring part and dis- purpose to serve its compensating of one in senting part. crime, who by has been harmed at I agree majority with the that the trial in explicit provision least the absence of an agreement court was not bound agreement requires the settlement that between and his victim. But the any remitting restitution award to him. (the vietim, Haltom, and Haltom's insurer) can be bound Ac- contract. SHEPARD, Justice, dissenting. Chief cordingly, happens money what to the if question presented The novel in this the court orders restitution should be way. case could be resolved either Judi- viewed as a matter of contract that policy recognize cial could either or decline Haltom, insurer, agreed among can be his recognize agreements settlement it, argu- and the victim. As I see it was deciding when to impose whether restitu- ably a breach of contract for the victim to tion in a criminal I case. think the choice having agreed seek restitution after that today problematic made will turn out to be payment from Haltom's insurer was just everyone about concerned. full satisfaction of her claims Hal- tom. Appeals, Unlike Court of howev- example, plaintiff For an who er, I give would not Haltom the benefit of receives an offer of civil settlement with breach, if that is what it was. language standard release have no will way knowing compen- of whether further if
Even the victim was breach in might through sation be achieved eriminal restitution, seeking the trial court could notwithstanding the release. initiative, have ordered on its own or the offer The facts this case are prosecution requested could have it. I policy leave it to was the other lim- would the victim and Haltom's driver's insurance its, insurer to duke out gets damages plausi- what under but whenever the are ordinary an the terms of at work under amount of insur- the available bly less than find seeking to contingent arrangement fee ance, face an unattractive the claimant will If the client. now for less she settle additional choice. Should only so, for more from the a share hope limits and the victim would than the $27,000 through the other driver disposition? Will the defendant paid criminal in which guilty-or guilty, not system. be found the criminal restitution im- penalty be no criminal case there will hire counsel would then The defendant all? posed at and he return of pursue of claim- to the interests pertinent More attorney his understandably owe impact today's decision ants will be the litigation. in that him representing fee for settle- easy it is for them obtain on how full judgment if he obtains Even defendants and their ment offers from amount, he thus not made whole. man- How can a carrier surance carriers. will owe company. The victim He has for its insured settlement age effective (more $27,000 received than she protect it or if obtained will the release hire need to place) presumably first claims? Be- insured from additional its wrongdoer's her in the counsel to defend faith duty good cause the carrier has recovery action. insured, any settlement for less with its ma- Finally, agree completely I with the subject the carri- policy limits will than the purposes: two jority that restitution serves by the insured er to a later contention the offender and rehabilitation wrongly policyhold- left the the settlement But, op. at 4. Slip of the victim. imposed by the er to additional pose questions will serious adopts rule it system. the restitution. who should receive about *6 assets, wrongdoer If the is damages were In where the actual a case imagine be even more difficult it would $80,000, $80,000, paid and the carrier wrong- An insured prompt settlement. ordered restitution the criminal court only route to would find that the doer $27,000, carrier it would be the insurance trial on the merits. closure would be the restitution. who should receive delay required for this outcome would The us, the facts before but Those are not way all the around. impact have an adverse ques- pose yet facts another present the likely face sentenc- wrongdoer The Here, judge the trial did not find hav- tion. the criminal court without ing before by the compensation, the actual suffered ing agreed to an amount $100,000. to wait trial would have party and the victim exceeded statement, longer compensated. sentencing slip op. to be at judge's say court chose to n. seems to the say that a criminal de- The Court does $27,000 in based on the order restitution may fendant ordered waited until that the victim could have idea injured party for by suing the reclaim disposed of and re- the criminal case was agreement. Slip of the settlement breach $100,000 order of with- ceived a restitution Thus, com- op. at 5. the victim's additional hiring counsel. The victim should out system is pensation through the restitution having settled position be in a worse that, one. And one because a short-lived earlier, should goes theory, and thus could legal representation, of the cost of up to make enough adversely to both the quite also work owed to her contingent presumably fee jured wrongdoer. and the The resti- party $100,000. To the extent this lawyer on the victim's tution claim here was filed finding that the actual value constitutes a attorney, presumably was still of the damage was it poses yet pended due to her noneooperation with the legal another difficult issue concerning disciplinary process. Accordingly, given $27,000. who should receive the passage of time respondent's con- tinued failure cooperate with the At disci- day, end of the I think the plinary process, we Court's further find solution to this that re- prompts case much spondent's running place suspension should will do little to be serve converted any of participants. lives, to an Their indefinite suspension from the prac- ours, would be law, more fulsome if the Court tice of pursuant to Admis.Disc.R. simply decided that 28(10)(f)(4). this awas moment judiciary when the should abide IS, IT THEREFORE, ORDERED that financial decisions of the victim and the suspension current practice tortfeasor. Because the Court has taken a law of respondent, Kimberly Ann vietims, path, tortfeasors, different and in- Wheeler, for failure to cooperate with the premium surance payers will all be worse disciplinary process hereby converted to off. suspension, indefinite effective immedi- reasons, For these I would reverse. ately. Accordingly, in order to become
readmitted to practice of law in this state, respondent must successfully peti- tion this Court for pursuant readmittance 28(4). to Admis.Dise.R. The Clerk of this Court is directed to
In the Kimberly Matter of forward notice of this respondent order to Ann WHEELER. mail, certified return receipt requested, No. 49S00-0411-DI-487. at her address as reflected in the Roll of Supreme Court of Attorneys; Indiana. to the Disciplinary Commis- sion; provided and as in Admis.Disc.R. Aug. 28(8)(d). ORDER CONVERTING SUSPENSION FOR NONCOOPERATION WITH All Justices concur. THE DISCIPLINARY PROCESS *7 TO INDEFINITE SUSPENSION January
On pursuant to Ind.
Admission and Discipline 28(10)(f), Rule
this suspended Court respondent, Kimber- ly Wheeler, Ann practice from the of law In the Matter of Gerald in this state for failing to provide to the J. REGENAUER. Disciplinary Commission a response to a No. 98S00-0507-DI-310. grievance filed her. Disciplin- ary Commission has now moved to have Supreme Court of Indiana. respondent's suspension converted to an Aug.16,2005. suspension indefinite practice ORDER APPROVING STATEMENT OF pursuant 23(10)({)(4). law to Admis.Disc.R. CIRCUMSTANCES AND CONDI- Respondent has not responded to the TIONAL AGREEMENT FOR DIS- Commission's motion to convert her cur- CIPLINE rent suspension. Pursuant to Ind. Admission and Disci-
We now find that more than six months pline Rule Section passed have Indiana Su- respondent since was sus-