Criminal Restitution and Insurance in Personal Injury Cases

While representing individuals who have been harmed by the intentional, or in some instances, negligent, criminal conduct of others in personal injury cases in civil suits, Janssen Malloy LLP’s attorneys work to help crime victims and their families secure a criminal restitution order to offset damages that the civil lawsuit alone may not cover.  Insurance policy limits, medical expense liens, or other factors that apply in the civil case may leave the crime victim with uncompensated economic losses.  In California, all people who suffer losses as a result of criminal activity have a constitutional right to restitution from those convicted of that crime. 
The victim may seek restitution for “all economic losses,” including the value of stolen or damaged property, medical expenses, mental health counseling expenses, lost wages and profits, and more.  The victim of a crime may recover restitution for the attorneys’ fees and litigation costs in his or her civil case against the convicted criminal defendant, which can be substantial, since virtually all personal injury cases are litigated on a contingent-fee basis.  In contingency cases, the law firm works on the case and advances litigation costs in exchange for a percentage of the recovery when the case is settled or after a successful jury verdict.
There are conflicting court decisions about whether a defendant is entitled to a credit toward the restitution obligation for a payment made by his or her insurer in a civil settlement or verdict.  A pair of Court of Appeal decisions, People v. Bernal and People v. Vasquez, indicate that the defendant can get such a credit.  However, the California Supreme Court in Bank of the West v. Superior Court pointed to the Insurance Code in holding that, “as a matter of public policy, an insured’s payment of certain types of restitution cannot be covered by insurance.”  One thing that is clear, however, is that a criminal defendant receives no credit for any payments made by the victim’s own (as in the case of Uninsured or Underinsured Motorist coverage) or a third party’s insurer.
Some crime victims and their families suffer losses, as in the especially tragic cases of death or catastrophic injuries, and the legal system cannot make them whole once again.  Janssen Malloy LLP’s experienced attorneys work in both civil and criminal court to ensure that crime victims obtain the best possible outcome, both in terms of a civil settlement or verdict and a restitution order that will hold the criminal defendant appropriately responsible.