The Montana Supreme Court has ruled that the amount of restitution a criminal defendant had to pay was the full amount of his theft – excluding items recovered – without a reduction for the amount the victim was reimbursed pursuant to an insurance policy covering the defendant's theft.
The Case
After John Creswell Dovey pleaded guilty to felony theft against his former employer, Westland Seed, the trial court held a hearing to determine restitution.
The trial court subsequently entered a judgment ordering Dovey to pay $26,562.00 in restitution to Westland. Because Westland's insurer had covered and reimbursed $26,208.60 of the related losses, Dovey requested that the trial court reduce his restitution by the $26,208.60 Westland had received from its insurer.
The trial court denied the request and Dovey appealed to the Montana Supreme Court. He argued that Westland's pecuniary loss only was around $300 because Montana's restitution statutes only allowed a victim to recover what he or she otherwise would be able to recover in a civil action. Dovey contended that Westland should not recover from both Dovey and its insurer, because that would result in a windfall of redundant payments. Dovey also argued that the state failed to identify Westland's insurer as a victim and, therefore, that the insurer could not benefit from Dovey paying full restitution.
The Montana Supreme Court's Decision
The court affirmed.
In its decision, the court rejected Dovey's argument that a criminal defendant's restitution to the victim “should be reduced by the amount paid by the insurer.” In the court's view, although the Montana restitution statutes included an insurer as a victim to the extent that it had paid reimbursement for the loss, there was no provision requiring deduction of any such reimbursement from the amount the offender had to be ordered to pay.
Dovey's argument, the court said, was that he was “more deserving of the windfall from his victim's insurance policy” than Westland. The court said that it disagreed with that.
The case is Montana v. Dovey, No. DA 15–0496 (Mont. May 17, 2016). Attorneys involved include: For Appellant: Martin W. Judnich, Vincent J. Pavlish, Judnich Law Office, Missoula, Montana; For Appellee: Timothy C. Fox, Montana Attorney General, Pamela P. Collins, Assistant Attorney General, Helena, Montana, Steve Eschenbacher, Lake County Attorney, Polson, Montana.
Steven A. Meyerowitz
Steven A. Meyerowitz, a Harvard Law School graduate, is the founder and president of Meyerowitz Communications Inc., a law firm marketing communications consulting company. He may be contacted at [email protected].