Strategies, Challenges, and Answers

A Collision At the Crossroads (Part 2): The Road Of Restitution

This is Part 2 of a multi-part post comparing and contrasting Criminal Judgments of Restitution and Civil Judgments for Damages.  In Part 1, linked HERE, we outlined the topic and discussed the types of cases in which both types of awards might be received. In Part 2 we will focus primarily on the statutory basis for Criminal Judgments of Restitution and discuss how they may affect later civil cases.

Las Vegas Nevada Insurance Coverage Lawyers Mills & Associates 702-240-6060 There are two instances when the Nevada legislature has empowered criminal courts to enter Judgments of Restitution.  In the first instance, the court is obliged to consider and award Restitution.  N.R.S. 176.033(1)(c) mandates that the criminal court, in all instances where restitution is appropriate, to “set an amount of restitution for each victim of the offense”, in every case where a sentence of imprisonment is either required or permitted.  In the second instance, whether Restitution is ordered is discretionary with the court.  N.R.S. 176A.430 provides that in an appropriate case, the criminal court can order full or partial restitution as a condition of probation or a condition of the suspension of a sentence.

For those of our readers who practice criminal defense law, Mills & Associates contends that even if the statute says that restitution is “mandatory”, there is always an argument to be made that the case at bar is not one that is “appropriate” for restitution.  The Nevada Supreme Court has said that even where the conduct constitues a felony admissible under N.R.S. 41.133 (which conclusively establishes civil liability for any injures resulting from the criminal conduct), the defendant may still plead comparative negligence as a defense to civil damages.  Cromer v. Wilson, 126 Nev. Adv. Op. 11 (March 11, 2010).  Therefore, the criminal defense argument would be that: “This case is not appropriate for an award of restitution because the victim of the offense was guilty of comparative fault.  The criminal restitution process does give effect to such considerations.  No award of restitution should be made by this court.  Instead, the amount of damage caused by this accident is best left to the civil court where the rules of comparative fault can be considered and applied.”  Another argument might be that an award of restitution is “impracticable”.  See N.R.S. 176A.430(1).  These arguments may not work in every case, but it surely is worth a try.

In addition, our request to the criminal defense dar is that if the criminal court is bent on entering an award of restitutuion, please make sure that the court states whether the order is for “full or partial restitutuion”.  N.R.S. 176A.430(1).  If the order is for “full restitutuion”, we civil attorneys following on in the defense of a civil case may be able to argue the civil claim for damages is precluded by an earlier “full” restitution award.  It is a troublesome situtation for us where the record is unclear as to to whether the crimial court intended the award of restitutuion to be full or partial.

Finally, to the insurance industry readers, Mills & Associates recommends monitoring claims alleging serious traffic offenses (negligent homicide, DUI, etc) where an order of restitution might be sought.  The defense of the civil claim may have to start with a discussion with the insured’s criminal defense attorney regarding whether an award of restitution should be opposed and the effect of the same on what will likely be a later civil court claim for damages.

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