Wednesday, February 16, 2011

What to Award: Cost of Repair or Cost of Replacement, when Repair is More than Replacement?

One interesting question in victim restitution decisions is whether these  decisions should be guided by tort law principles when determining losses.  One line of cases has held that tort law principles should apply. For example, People v. Chappelone (2010) 183 Cal. App. 4th 1159 established principles for valuation of stolen property: (a) restitution is limited to market value; (b) a court must consider the cost of the property to the victim; and (c) if property is returned to a victim, the victim is only entitled to the value of the loss of use    during the time he or she did not have the property. These cases reason that the main approach in determining the amount of restitution should be an economic analysis which considers only the most efficient expense with regard to lost or damaged property. For example, if a car is worth $5,000 and the crime causes damage to the car which will cost $6,000 to repair, the victim should only get $5,000.

The argument against this position is that the purposes of restitution are much broader and include rehabilitation of the defendant and minimizing additional disruption to a victim whose life has already been disrupted.  Under these cases, the victim can receive the $6,000 cost of repair for a $5,000 car.  The most recent of these is In re Alexander A. (2011) ___CA 4th_____.  That case reasoned:

We, too, reject the imposition of strict tort law on restitution orders. The California Supreme Court recently reiterated the long-standing principle "[t]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action."

Thus in the broader sense of providing relief to the victim from injury, the trial court may consider the impact of alternative restitution orders on the victim as long as the restitution order itself is consistent with juvenile justice goals of compensation for economic loss, rehabilitation and deterrence.

In some cases in which the costs of repair exceed the value of a replacement vehicle, it may be more convenient for the victim to visit a dealer and purchase another car. In other cases, as here, the victim may prefer to repair his or her damaged car, despite its age.

Focusing on the rehabilitation and convenience for the victim are important policy considerations, which give this line of cases the upper hand. 

But the convenience of the victim does not need to be divorced from economic harm to the victim. Victims should advise the court of the other costs involved in an alternative award.  For example, if a court were inclined to limit restitution to the cost of replacement, the victim could tell the court of the time and costs associated with finding a new car and seek to get those as well. It is easy for courts to assume that a victim's time is worth little or nothing if the court is not specifically told of the costs the victim will incur. A victim is not required to spend his holidays and weekends trying to fix the harm caused by the defendant.  A victim could advise the court that it will take several days of time to find a new car and value that time at his current compensation.  If this were done the court should award that amount as well.