A Truly Effective Means to Subrogate
After a jury trial, the defendant was convicted of four counts of malicious destruction of property. After conviction, the Commonwealth sought restitution, and an evidentiary hearing was held before the trial judge. At the conclusion of the hearing, the judge made oral and written findings, and ordered the defendant to pay restitution to both the named victim of the offenses, Mueller Corporation, and the victim’s insurer, Chubb Group of Insurance Companies (Chubb) who was not wise enough to seek it.
In Commonwealth v. Mark Svizzero, 18-P-261, Commonwealth of Massachusetts Appeals Court (December 3, 2019) the criminal defendant sought to set aside orders of restitution to an Insurer, Chubb, who had paid to reimburse its insured Mueller Corporation for the vandalism damage caused by the defendant.
Failure to Present a Live Witness from Chubb
The defendant first claims that it was error for the judge to order that restitution be paid to Chubb where no representative from Chubb appeared to testify at the restitution hearing.
Ordering restitution rests within the sound discretion of the judge. The standard of proof for a restitution order is only that of a preponderance of the evidence.
The purpose of restitution is to compensate the injured party for losses incurred as a result of the defendant’s criminal conduct. Criminal restitution is treated with an expansive approach, and is designed to afford restitution to victims of crime to the greatest extent possible.
Contrary to the defendant’s argument, the failure to present live testimony from a potential recipient of restitution does not itself preclude an award of restitution after a hearing. In this case the Commonwealth presented ample evidence of Chubb’s losses through the live testimony of a representative of Mueller Corporation, and the written averments of both the Mueller Corporation and Chubb itself.
The Commonwealth also presented evidence through testimony and exhibits that the losses at issue were causally connected to the defendant’s vandalism. Importantly, a judge also may rely on evidence presented at trial in assessing restitution.
The defendant’s focus on the absence of evidence of Chubb’s internal process, and whether Chubb credited various claims made by Mueller Corporation, was misplaced. The purpose of restitution is not only to compensate the victim for his or her economic loss tied to the defendant’s conduct, but also to make the defendant pay for the damage he or she caused as a punitive and rehabilitative sanction.
The defendant may not challenge the apportionment of the losses found by the judge as between Mueller Corporation and Chubb, as he lacks standing to complain against the judge’s choice of Chubb as a beneficiary of restitution.
The defendant challenges the admission of various hearsay statements in evidence at the restitution hearing. These include a letter from Chubb to the East Bridgewater Police Department requesting restitution, Glen Mueller’s testimony about Chubb’s payment to Mueller Corporation, and a spreadsheet prepared by Mueller Corporation detailing its losses. The judge, therefore, did not abuse her discretion in admitting the challenged evidence.
A restitution hearing is not part of a criminal prosecution to which the full panoply of constitutional protections applicable at a criminal trial need be provided, but principles of due process govern. Reliable hearsay is admissible in restitution hearings. The evidence and procedures satisfied the due process standards for restitution hearings, where Glen Mueller testified regarding Mueller Corporation’s losses, ample documentary support was admitted without challenge from the defendant, and the defendant was provided an opportunity to cross-examine Glen Mueller and submit his own evidence.
Restitution for Losses Predating the Offense Dates
In ordering restitution, a judge is not confined to consideration of the four corners of the criminal complaint, but rather must instead make a holistic assessment of the facts surrounding the crime, not merely those facts establishing the elements of the crime.
The underlying facts of the charged offense, not the name of the crime of which the defendant was convicted or to which he pleaded guilty, controls. The Commonwealth presented evidence that the challenged costs were incurred relative to vandalism that took place in the days immediately subsequent to the defendant’s termination from Mueller Corporation, close in time to the charged offenses, and which involved an air chiller, as did the charged offenses.
The judge did not abuse her discretion in determining that the early incidents were sufficiently related to the charged incidents so as to establish causality sufficient to order restitution.
Insurers often ignore the right to restitution from a criminal causing damages to the property of the insured that resulted in a paid claim. Rather, their subrogation department will sue the criminal, with little chance of recovering money quickly, or at all. However, if the defendant is convicted, granted probation with restitution as a condition of probation, will be paid immediately to avoid jail time. Insurers should work with the prosecutor to obtain total and immediate restitution of the amounts paid and not rely on the wisdom of the trial judge.
© 2019 – Barry Zalma
This article, and all of the blog posts on this site, digest and summarize cases published by courts of the various states and the United States. The court decisions have been modified from the actual language of the court decisions, were condensed for ease of reading, and convey the opinions of the author regarding each case.
Barry Zalma, Esq., CFE, now limits his practice to service as an insurance consultant specializing in insurance coverage, insurance claims handling, insurance bad faith and insurance fraud almost equally for insurers and policyholders. He also serves as an arbitrator or mediator for insurance related disputes. He practiced law in California for more than 44 years as an insurance coverage and claims handling lawyer and more than 50 years in the insurance business. He is available at http://www.zalma.com and firstname.lastname@example.org.
Mr. Zalma is the first recipient of the first annual Claims Magazine/ACE Legend Award.
Over the last 51 years Barry Zalma has dedicated his life to insurance, insurance claims and the need to defeat insurance fraud. He has created the following library of books and other materials to make it possible for insurers and their claims staff to become insurance claims professionals.