Posted on January 9, 2025 by Barry Zalma
DEFENDANT NOT ENTITLED TO OFFSET FOR VICTIMS INSURANCE
Post 4967
Insurer that Pays Insured for Damages Caused by Criminal is also a Victim Entitled to Restitution
The State charged defendant-appellant Kaliah Haskett with criminal damaging after she kicked the rear liftgate of a vehicle. Haskett pleaded guilty and the trial court ordered her to pay more than $3,000 in restitution for repairs to the vehicle, including replacing the vehicle’s bumper.
In State Of Ohio v. Kaliah Haskett, 2024-Ohio-5933, Appeal No. C-240242, Court of Appeals of Ohio (December 20, 2024) found that Haskett was required to pay restitution for her crime.
Haskett asserted that the trial court should have limited its restitution award to the value of the complaining witness’s insurance deductible. She further argued that the trial court erred by including in the restitution award the cost of replacing the bumper and by limiting her cross-examination of the complaining witness on the witness’s prior inconsistent statements.
Ohio requires a trial court to reduce the restitution award by any recovery that a complaining witness has received. However, a trial court is not required to offset a complaining witness’s restitution award due to a potential insurance claim.
Factual And Procedural History A. Haskett Pleads Guilty To Criminal Damaging
In August 2023, the State charged Haskett with criminal damaging, a second-degree misdemeanor. The complaint alleged that Haskett “rip[ed] off the fuel cap of the [complaining witness’s] van and kick[ed] the rear lift gate in a fit of rage causing a significant dent.” Haskett pleaded guilty to the offense.
Restitution Hearing And Sentencing
P.W., the complaining witness, testified at the restitution hearing that she owned a “2008 Dodge Caravan” and that Haskett damaged it by kicking the vehicle. P.W. received a $3,323.96 estimate for the repairs.
P.W. testified that she had insurance covering her vehicle, but she did not want to make a claim through her insurance “[b]ecause my insurance didn’t have anything to do with the damage that she did. And my insurance will go up. And I don’t feel like that’s fair that I have to use my insurance to pay for the damage that she did.” P.W. stated that her insurance deductible was $500.
Haskett asked P.W. about statements she made to police on the day of the incident. Haskett’s counsel noted that there were two dents on the back of P.W.’s vehicle, and that on the day of the incident, P.W. told law enforcement that Haskett caused only one of the dents. P.W. stated that Haskett caused both dents.
The trial court stated that because P.W. had not received an insurance payment, she was not required to submit an insurance claim and could recover the full value of the estimate.
The trial court awarded P.W. $3,323.96 in restitution and sentenced Haskett to 90 days in jail with 90 days suspended and two years of community control.
ANALYSIS
Restitution
Following a misdemeanor conviction, the trial court may order the defendant to pay restitution to the victim in an amount based on the victim’s economic loss. “Economic loss” is defined as any economic detriment suffered by a victim as a direct and proximate result of the commission of an offense. Restitution is limited to the actual loss caused by the defendant’s criminal conduct.
Insurance Coverage
Haskett asserted that the trial court erred because it awarded restitution beyond the amount of P.W.’s deductible. P.W. testified that her vehicle was insured but she chose not to file an insurance claim.
In Ohio courts have concluded that if a victim maintains an insurance policy covering the damages caused by a defendant and has received insurance payments, then the amount of restitution should be set at the amount of the deductible, not the amount of the damage. Ohio courts conclude that if the victim has insurance that reimbursed her for part or all of the loss that occurred as a result of the offender’s criminal conduct, the victim has not suffered an economic loss for the purposes of imposing restitution.
While these cases provide that a victim’s restitution award should be offset if the victim receives compensation from a third party, they do not state that a victim must file an insurance claim.
Ohio’s statutes do not require a trial court to limit a restitution award merely because a victim purchased an insurance policy and may submit a claim. At the time of the restitution hearing, P.W.’s “economic loss” was $3,323.96. Had P.W. received insurance payments to cover some of that amount, her actual economic loss would be reduced and transferred to her insurance company. Since she recovered nothing from her insurer and Haskett points to no statutory mechanism for forcing a complaining witness to pursue recovery from collateral sources before seeking restitution.
Haskett’s guilty plea was not an admission that Haskett caused whatever damages P.W. claimed at the restitution hearing. A defendant is permitted to dispute the amount of restitution. Because P.W. asserted damages beyond those listed in the complaint, the trial court should have permitted Haskett to cross-examine P.W. about her prior inconsistent statements.
That error was harmless. P.W. testified that the damage to the liftgate-damage Haskett admitted causing-necessitated replacing the bumper. Therefore, the trial court properly awarded P.W. the cost to replace both parts of the vehicle.
ZALMA OPINION
Although only $3,323.96 was involved between the defendant and the victim this case is important to the insurance industry. If the victim had made a claim to her insurer and been paid she would get a windfall if she received full restitution and the insurance proceeds. The defendants obligation to pay restitution would not be eliminated since, by its right of subrogation, the insurer would step in the shoes of its insured as a victim of the crime and be entitled to restitution in accordance with state law. If the insurers rights were ignored the criminal defendant would profit from the crime. In such a fact situation every insurer that paid indemnity to its insured because of the acts of a convicted defendant the insurer must, as a victim of the crime, demand restitution.
(c) 2025 Barry Zalma & ClaimSchool, Inc.
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