Insurers’ Payments Cannot Be Credited Towards Restitution

Monday, January 5, 2004

Page 3

Insurers’ Payments Cannot Be Credited Towards Restitution—C.A.

By a MetNews Staff Writer

Payments to a crime victim by that person’s own insurer, and by the insurer of the defendant’s mother—who was named along with her son in the victim’s lawsuit—should not have been credited toward the defendant’s restitution obligation, the Court of Appeal for this district has ruled.

Div. Five Tuesday ordered Los Angeles Superior Court Judge Maureen Duffy-Lewis to reconsider her denial of a motion to revoke Eric Duane Hamilton’s probation as a result of his alleged failure to satisfy his obligations to Donald Hill.

Hill, the court explained, was shot and injured while doing some work for Hamilton’s mother. Hamilton pled no contest to armed assault and was placed on probation for five years, one condition of which was that he pay $15,000 in restitution.

Probation has since been revoked and reinstated several times.

Hill sued Hamilton and his mother in 1998. He collected more than $15,000 from the mother’s insurance company by way of settlement, and also had some of his medical bills paid under an insurance policy issued to him or his mother.

Prosecutors moved to revoke probation earlier this year, saying the restitution had not been paid. But the trial judge said the insurance payments had satisfied the obligation.

Justice Richard Mosk, writing for Div. Five, disagreed.

Payments from the victim’s own insurer should not be credited to the defendant, Mosk said. And the payments by Lena Hamilton’s insurer were made for her benefit, not her son’s, and so can’t be credited against his obligation, the justice said.

Mosk explained:

“Here...there is no evidence that the settlement paid by Ms. Hamilton’s insurer was made on Hamilton’s behalf. The evidence is to the contrary. The settlement and release agreement signed by Hill expressly releases Ms. Hamilton; it does not mention Hamilton except in the caption in Hill’s civil case against Hamilton and his mother. A letter from Ms. Hamilton’s insurer dated March 27, 2002 transmitting to her a copy of the signed release states: ‘Pursuant to your request, enclosed are copies of the signed release, dismissal and settlement check we issued to resolve the claim made against you by Donald Hill.’ Finally, a letter from Ms. Hamilton’s attorney advising her of Hill’s agreement to settle his action against her states: ‘I am happy to advise that the Offer to Compromise in the amount of $30,000 has been accepted which will release and dismiss you from this lawsuit. We were also able to extricate your son, Eric, with respect to the civil action, obtaining a Request for Dismissal with Prejudice. However, it is not within our power or authority to have a Release made on Eric’s behalf, given the prior restitution orders in the criminal matter...’ Because the settlement paid by Ms. Hamilton’s insurer was made on her behalf, and not directly on behalf of Hamilton, it cannot be offset against Hamilton’s victim restitution obligation.”

The case is People v. Hamilton, 04 S.O.S. 16.