Lead Opinion
Opinion by
¶ 1 In this рrosecution, appeal of a restitution setoff, we must reconcile the dual policy interests underlying the restitution statute, § 18-1.3-603, C.R.S. 2016, of fully compensating -a victim on the one hand and of, precluding double recovery by the victim on the other.
¶ 2 The prosecution asks us to reverse the trial court’s order awarding the defendant, Steven Robert Paul Stanley, a $25,000 setoff against restitution of $30,000, an amount paid to the victim by the Crime Victim Compensation Program (CVCP). The setoff arose from a policy-limits settlement between the victim and Stanlеy’s automobile insurance company. Despite uncontroverted evidence of this settlement, the prosecution argues that Stanley failed to sufficiently prove entitlement to a setoff because he did not show that the settlement proceeds were “earmarke,d” for the same expenses reimbursed by the CVCP, leaving open the possibility that the victim used .the proceeds for losses not compensated by the CVC1P.
¶ 3 Because the level of specificity for apportioning urged by the prosecution would render meeting a defendant’s burden of proving a setoff under § 18-1.3-603(3), and (8)(c)(I) impractical — and in some cases .impossible — -we conclude that a defendant sufficiently meets his or her burden of going forward to invoke the trial court’s discretion to award a setoff by showing that .the settlement included one or more categories of loss (expenses) paid by the CVCP and covered by the restitution order.
¶ 4 Thus, we affirm in part the trial court’s ruling on apportionment. However,' because the Victim may have used some or all of the settlеment proceeds for losses not compensated by the CVCP, we remand the case to permit the prosecution to respond by showing that the victim used or allocated settlement proceeds for losses proximately caused by Stanley’s criminal conduct but which were not paid by the CVCP and covered by the restitution order. This procedure gives effect to the restitution statute’s-legislative intent “to make full restitution” to victims for their losses. § 18-1.3-601(l)(b), C.R.S. 2016. If the prosecution makes such a showing, the trial court should amend its restitution order by reducing the amount of the setoff.
I. The Restitution Order
¶ 6 This case arises from a traffic accident that occurred on April 11, 2015. On May 7, 2015, Stanley’s automobile insurer, Geico Indemnity Co, (Geico), entered into a “Release in Full of All Claims” (the Release) with the victim and her husband. Under the settlement, Geico paid the victim $25,000 for all claims related to and stemming from the accident in exchange for a full and final release of all claims against Stanley and Gei-co.' The Release released and forever discharged Stanley and Geico
[fjrom any and every claim, demand, right or cause of action, of whatever kind or nature, on account of or in any way growing out of any and all personal injuries and consequences thereof, including, but not limited to, all causes of action preserved by the wrongful death statute applicable, any loss of services and consortium, any injuries which may exist but which at this timé are unknown and unanticipated and which may develop at-some time in the future, all unforeseen developments arising from known injuries, and any and all property dаmage resulting or to result from ap acei-*521 dent that occurred on or about the 11th day of April, 2015....
¶ 6 On February 4, 2016, Stanley pleaded guilty to felony vehicular assault, driving under the influence, and careless driving, Under the plea- agreement, the trial court deferred the entry of judgment and sentence on the felony for four years, and sentenced Stanley to four years of concurrent probation on the misdemeanor, convictions. The court gave the prosecution, ninety days to submit a restitution request.
¶ 7 On May 3, 2016, the prosecution filеd a motion to impose restitution and attached a report from the CVCP. It showed that the CVCP had paid the victim $30,000, the maximum amount allowable by statute, for pecuniary losses proximately caused by Stanley’s criminal conduct. See § 24-4.1-109.(2)(b), C.R.S. 2016. It paid the victim $8048 for lost wages arid $21,952 for medical expenses.
¶ 8 Believing that the insurance Release аnd settlement satisfied his restitution obligation, Stanley never filed an objection to the prosecution’s motion for restitution. On June 14, 2016, the court granted the unopposed motion and ordered Stanley to pay the victim $30,000 in restitution. Later that same day, Stanley filed a Motion for Reconsideration of the Restitution Order, explaining his misunderstanding and requesting a hearing and a setoff,. The court granted Stanley’s hearing request.
¶ 9 At the hearing, the parties relied on two documents — the CVCP report evidencing the $30,000 payment and the Release evidеncing the $25,000 settlement. Neither party presented any other evidence.
¶ 10 The prosecution argued that because the Release constituted an unapportioned settlement, Stanley bore the burden of proving that the settlement proceeds were intended to compensate the victim for the same lost wages and medical expenses compensated by the CVCP- Specifically, “[the Release] talks in no way about where this $25,000 is to be allocated. Is it supposed to go to medical or pаy for the damages to the vehicle?” Relying on People v. Lassek,
¶ 11 Stanley agreed that he bore the burden of establishing the existence of a setoff. He asserted that-the Release “broadly apportioned” the proceeds through the language stating-an intent to compensate for “any and every claim” for loss- of services, as relevant to wage loss, and for personal injuries and all consequences of them, as- relevant to medical expenses. He reasoned that the settlement proceeds necessarily included the medical -and lost wages compensation the victim received from the CVCP. He further argued that the C.VCP was remiss in failing to offset restitution by the settlement amount under § 24-4.1-110(1), C.R.S. 2016.'
¶ 12 The trial court held that $30,000 in restitution was reasonable, due, and owing. It further held -that the Release’s broad language was “all еncompassing and [that] it include[d] every type of claim imaginable and any type of injury imaginable.” It found the .Release “contemplated] payment for the very same categories that are set forth in the prosecution’s restitution report,” and noted that these types of releases never apportioned proceeds to specific loss categories. Therefore, it awarded Stanley a $25,000 set-off against restitution. and ordered him. to pay the $5000 net amount.
II. Analysis
¶ 13 Relying on Lassek and People in Interest of T.R.,
A.Standard of Review
¶ 14 We review a trial court’s restitution award for an abuse of discretion. People v. Sieck,
¶ 15 We review and interpret statutes de novo. People v. Padilla-Lopez,
B.Applicable Law
¶ 16 As part of “[e]very order of conviction,” a triаl court must order a defendant to pay restitution if the defendant’s conduct caused pecuniary loss to a victim. § 18-1.3-603(1); People v. Reyes,
¶ 17 The court bases its restitution order on information provided by the prosecuting attorney. § 18-1.3-603(2). The prosecution bears the burden of proving the amount owed by a preponderance of the evidence, People v. Smith,
¶ 18 Compensable losses are defined in §§ 24-4.1-109(1) and (1.5), and include the following:
(a) Reasonable medical and hospital, expenses and expenses • incurred for dentures, eyeglasses, hearing aids, or other prosthetic or medically necessary devices;
(b) Loss of earnings;
(c) Outpatient care;
(d) Homemaker and home health services;
(e) Burial expenses;
(f) Loss of support to' dependents;
(g) Mental health counseling;
(h) Household support; except that household support is only available to a dependent when:
(I)The offender is accused of committing the criminally injurious conduct that is the basis of the dependent’s claim under this article;
(11) As a result of the criminal event, the offender vacated any home the offender shared with the dependent; and
(III). The dependent provides verification of dependency on the offender at thе time of the criminal event.
*523 (1.5)(a) Losses compensable under this part 1 resulting from property damage include:
(I)(A) Repair or replacement of property damaged as a result of a compensable crime; or
(B) Payment of the deductible amount on a residential insurance policy; '
(II) Any modification to the victim’s residence-that is necessary to ensure victim safety; and
(III) The rekeying of a motor vehicle or other lock that is necessary to ensure the victim’s safety.
Compensable losses do not include
(a) Pain and suffering or property dаmage other than residential property damage or rekeying a lock pursuant to subpar-agraph (III) of paragraph (a) of subsection (1.5) of this section; or
(b) Aggregate damages to the victim or to the dependents of a victim exceeding thirty thousand dollars/
§ 24-4.1-109(2).
¶ 19 Additionally, if a crime victim compensation board provides assistance to a victim, “the amount of assistance provided and requested by the crime-victim compensation board is presumed to be a direct résult of the defendant’s criminal conduct -and must be considered by the court in determining the amount of restitution ordered.” .§ 18-1.3-603(10)(a). The amount of assistance provided may be established by either (1) a list of the amount of money paid to each provider; or (2) a summary data -reflecting what total payments were made for medical and dental expenses, funeral or burial expenses, mental health counseling, wage or support losses, or other expenses, if the identity or location would pose a threat to the safety or welfare of the victim. § 18-1.3-603(10)(b)(II).
¶ 20 The restitution statute also furthers a second interest — that of avoiding-double recovery. As pertinent here, a trial court may decrease a restitution award if the defendant has otherwise compensated the victim or victims for “the pecuniary losses sufferéd.”
¶ 21 Whén a victim receives compensation from a civil settlement against a defendant, the defendant may request a set-off against restitution “to the extent of any money actually paid to the victim for the same damages.” Lassek,
¶ 22 Still, for purposes of a setoff, the court cannot allocate proceeds from an unapportioned civil settlement agreement without “specific evidence that the settlement included particular categories of loss.” Lassek,
¶ 23 When applying a setoff, the trial court must make specific findings on the apportionment of actual damages for which the defendant compensated the victim and set off that amount against any restitution ordered. T.R.,
C. Application
¶ 24 We begin with T.R. and Lasselc, which we find informative but distinguishable from this case. In Hi?,,-the victim’s estate and surviving spouse brought a civil action against T.R. that was defended by T.R,’s automobile liability insurer. T.R.,
¶ 25 Similarly, in Lasselc, the defendant pleaded guilty to charges related to a fatal traffic accident. Lassek,
¶ 26 The tidal court concluded it could not make a setoff because it could not determine the amount of the settlement proceeds which compensated the parents for the burial and travel expenses. Id. A division of this court affirmed the trial court’s order, ruling the settlement proceeds “unapportioned” because the Covenant did not identify any expenses covered by the restitution order. Id. It further concluded that the defendant bore the burden of establishing apportionment. Id.
¶ 27 In сontrast to both of these cases, where the settlement agreements did not identify particular categories of losses, the plain language of the Release identifies “any and every claim, demand, right or came of action ... .any and all personal injuries and consequences thereof ... any loss of services ... and any and all property damage resulting or to result from an accident” as encompassed within the settlement. (Emphasis added.) A settlement agreement is a contract, See H. W. Houston Constr. Co. v. Dist. Court,
¶ 28 We conclude, therefore, that “personal injuries and the consequences thereof’ include both physical and emotional harm arising.from the costs of treatment for bodily injury (here, medical expenses for the victim’s injuries), and also from the several types of nonpeeuniary damages recoverable by the victim in a civil claim based on those
¶ 29 This conclusion does not end our analysis, however, because as argued by the prosecution, and as recognized by the division in Lassek, the victim “could allocate the entire settlement to noneconomic [i.e. non-compensable] damages.” Id. Indeed, the language “any and every claim, demand, right or cause of action” and “property damage” is broad enough to include noncompensable losses, such as automobile damage, and pain and suffering related to the victim’s physical injuries.
¶ 30 How then does a trial court give effect to § 18-1.3-603(3)(II) and the underlying policy of preventing double recovery expressed in § 18-1.3-603(6) while simultaneously giving-effect to the statute’s policy of making the victim whole?. None of our cases has answered this question.
¶ 31 We are guided by a related statute from the Colorado Crime Victim Compensation Act (Act).
(1) The board shall deduct from compensation it awards under this part 1 any payments received by the applicant from the offender or from a person on behalf of the offender, from the Unifr-ed States or any state, or any subdivision or agency thereof, from a private source, or from an emergency award under this part 1 for injury or death compensable under this part 1, excluding death or pension benefits.
(2) If compensation is awarded under this part 1 and the person receiving it also receives a collateral sum under subsection (1) of this section which has not been deducted from it, he shall . refund to the board the lesser of the sums or the amount of compensation paid to him under this part 1 unless the aggregate of both sums does not exceed his .losses. The fund shall be the payor of last resort.
(3) If a defendant is ordered to pay restitution under article 18.5 of title 16, C.R.S., to a person who has received compensation awarded under this part 1, an amount equal to the compensation awarded shall be transmitted from such restitution to the board for allocation to the fund.
¶ 32 As relevant here, under subsection (1), if the bоard knows about a collateral payment to the victim for a compensable damage, it must deduct that amount before issuing its award. Subsection (2) requires ⅛ person compensated by the CVCP (the victim here) to refund the CVCP for compensation paid to that person by the offender or by another on behalf of-the offender. That is, if the victim receives a “collateral sum” after the award has already been made by the board, then the victim must refund any dupli-cative amounts, which necessarily could only be compеnsable damages.
¶ 33 In order to calculate the amount of any refund owed, a victim would necessarily need to determine whether the compensation he or she received from the defendant-was used to reimburse the same losses and expenses compensated by the CVCP and then to provide such information to the CVCP. Our General Assembly has deemed this information “confidential” under § 24-4.1-107.6, C.R.S. 2016, and, therefore, inaccessible to a defendant except in a narrow circumstance not applicable here.
¶ 35 Finally, because of our disposition, we need not address whether the CVCP properly considered the insurance settlement when compensating the victim for medical expenses and lost wages.
III. Conclusion
¶ 36 The order is affirmed and the case is remanded for further proceedings consistent with this opinion.
Notes
. The exact date of the CVCP's payment; to the victim is not clear from the record. The CVCP rep.ort contains а notation that it was printed on "2/9/2016” and was filed with the court on "May 3, 2016."
. Stanley does not cross-appeal the court's findings concerning the reasonableness of the $30,000 restitution award. , ,
. In any event, we are not hound by decisions of other divisions of this court. People v. Smoots,
.. The General Assembly has defined restitution as
any pecuniary loss suffered by a victim and includes but is not limited to 'all' out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, money advanced by a governmental agency for a service animal, adjustment expenses, and other losses or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money. "Restitution" does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive. damages.
§ 18-1.3-602(3)(a), C.R.S. 2016.
. Similar to the restitution statute, the General Assembly intended this Act "to provide protection and assistance to victims and members of the immediate families of such victims by declaring and implementing the rights of such persons and by lessening the financial burden placed upon such victims due to the commission of crimes." § 24-4.1-101,'C.R.S. 2016.
. Under § 24-4.1-107.5(3), C.R.S. 2016, a defendant may'request an in camera review to rebut the presumption of causation, but only based on ⅜ defendant's proffer-of a nonspeculative eviden-tiary hypothesis.
Concurrence Opinion
specially concurring.
¶ 37 While I agree with the majority’s disposition, I write separately to air the possibility of a legislative solution.
¶ 38 On the one hand, a trial court may decrease a restitution award if a defendant has otherwise compensated a victim for the “pecuniary losses suffered.” § 18-1.3-603(3)(b)(II), C.R.S. 2016. But on the other, this phrase does not restrict the decrease based on overlap between that compensation and either losses compensable under the restitution statute or any specific item in the restitution award. Indeed, while section 18-1.3-603(6) applies to a setoff against a post-restitution civil judgment rather than against a restitution award, it too does not require any overlap between the items covered by a restitution award and the items “recovered as compensatory damages.” The breadth of the latter section could have significant consequences if the civil judgment included only noneconomic losses, such as pain and suffering, for which the restitution award could not have compensated the victim.
¶ 39 At the restitution hearing in this ease, the trial court found, “You’ll never see a release that says X number of dollars goes to paying the Kaiser bill and X number of dollar’s goes to paying Auto Nation for repаirs nor will you see this is earmarked for or designated for medical expenses.” This finding raises the dilemma that, in many cases, the defendant may be unable to meet even the burden imposed by the majority.
¶ 40 True, the majority avoids this dilemma by focusing on language in the Release that corresponds to the two categories of loss identified by the victim compensation board. But that solution may be unavailable in many cases, just as it was unavailable in Lassek, And even here, the question is close because while the release expressly addresses “services,” it is silent as to “medical expenses.”
¶ 41 To avoid further uncertainty, the General Assembly may wish to consider amending section 18-1.3-603(3)(b)(II) to clarify exactly what must be proven, and by whom, to invoke the trial court’s discretion to order a setoff under section 18-1.3-603(3), where a civil settlement predates a restitution hearing.
. This dilemma may be unique to settlements, because if a victim recovers a civil judgment, the jury may have apportioned damages among categories such as economic and noneconomic loss.