Thursday, June 16, 2011

No Insurance for Criminal Defendants

There is a line of restitution cases, starting with People v. Bernal (2002) 101 Cal. App. 4th 155, and continuing through cases such as People v. Jennings (2005) 128 Cal. App.4th 42, which hold that a criminal defendant is entitled to credit toward his or her restitution obligation to a victim for payments made by the defendant's insurance company to the victim in a related civil case.

    But this line of cases is wrong because insurance cannot provide protection for crimes. State Farm Fire & Cas. Co. v. Superior Court (1987) 191 Cal. App. 3d 74, 78, held that: "[r]estitution is ordered as punishment in a criminal case. No conceivable justification exists for allowing an individual to pass on such liability to an insurance carrier." In State Farm a criminal defendant unsuccessfully sought defense from his insurer in his criminal prosecution for assault and attempted murder.

    The California Supreme Court did an extensive analysis of insurable claims in Bank of the West v. Superior Court (1992) 2 Cal.4th 1254, 1270. After citing State Farm with approval,  Bank of the West explained that "as a matter of public policy, an insured's payment of certain types of restitution cannot be covered by insurance."  Under State Farm and Bank of the West an insured cannot go through the front door to get coverage of criminal restitution - that is,  tender defense of the criminal case to its insurer. Bernal held - without citing State Farm or Bank of the West -  that defendants can go in the back door by getting credit toward restitution for an insurer’s payment on a civil case.  Bernal is not correct.

    Bernal cited another Supreme Court case extensively: People v. Birkett (1999) 21 Cal. 4th 226, 246.  It quoted a passage from Birkett which should have alerted it that giving criminal defendants credit for an insurance payment was not consistent with California law: "[T]he Legislature intended to require a probationary offender, for rehabilitative and deterrent purposes, to make full restitution for all losses his crime had caused, and that such reparation should go entirely to the individual or entity the offender had directly wronged, regardless of that victim's reimbursement from other sources."  A criminal defendant has to pay his or her own way when dealing with the costs of crime and cannot get the benefit of insurance.


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