Metropolitan News-Enterprise


Wednesday, February 28, 2007


Page 1


Payment by Mother’s Insurer Frees Her, Not Son, from Juvenile Court Restitution Order—C.A.




An arson victim who accepted payment from an insurer for the perpetrator’s mother effectively released the mother, but not her son, from a restitution order imposed by the juvenile court, the Fourth District Court of Appeal ruled yesterday.

“There are reasons that civil settlements do not release juvenile offenders from a liability for restitution under [Welfare and Institutions Code ] section 730.6,” Justice Eileen Moore explained for Div. Three. “But those reasons do not apply to parents who are only vicariously liable under section 730.7.”

The ruling partially affirms and partially reverses a decision by San Diego Superior Court Judge Caryl Lee in a case resulting from a 2005 fire at Bolsa Grande High School. Two boys entered a combination storage shed/snack bar and set a carpet on fire; the fire spread and caused about $139,000 in damage.

One of the boys, 15-year-old Michael S., as the appeals court identified him, was found to be delinquent and ordered to serve 30 days in juvenile hall plus a period of probation.

The school district made a demand for compensation from Michael and his mother, and eventually accepted a payment of less than $12,000 from the mother’s insurer as full payment. As a condition of settlement, the district executed a full release in favor of both Michael and his mother.

At a later restitution hearing, Lee ordered Michael to pay $127,000—the full amount of the damages less the amount paid by the insurer—and ordered the mother to pay $25,000 pursuant to Sec. 730.7. The statute provides that the custodial parent or parents of a child who commits a criminal offense are presumed to be jointly and severally liable for any restitution order, but that the amount of such liability cannot exceed the amount that could be imposed on the vicariously liable parent in a tort action based on the same conduct.

Moore, writing for the Court of Appeal, said the order was correct as to Michael but not as to his mother.

The justice cited In re Tommy A. (2005) 131 Cal.App.4th 1580, which dealt with a 16-year-old involved in an accident while driving a vehicle without a license and without the permission of the owner, a friend of his mother. The owner’s insurer settled with the injured party, who executed a release in favor of both the owner and the underage driver.

The juvenile court rejected the minor’s claim that the release barred a restitution order, and the Court of Appeal affirmed on the grounds that the insurer was a “completely distinct and independent source,” that the state was not bound by the release since it was not a party to the settlement, and that judicial recognition of the release would not serve the “rehabilitative and deterrent goals of restitution.”

 The Tommy A. reasoning, Moore wrote, applies to Michael S. but not to his mother. The justice pointed out that as to her, the insurer is not an independent source, since the payment was made under her policy, and that releasing her from liability that is purely vicarious would not offend the state’s interest in rehabilitating her child and would “only marginally” implicate the state’s interest in having parents control the behavior of their children.

The justice wrote”

“The state’s interest in the rehabilitation of juvenile offenders is not implicated by a release of vicarious liability against an otherwise innocent parent.  And the Legislature never intended to preclude the operative effect of releases of vicariously liable parents given by victims of their children’s torts.  In fact, not giving effect to such a civil release deprives victims of an important bargaining chip, and ultimately of compensation that might come their way as well as the benefits of their rights under liability insurance contracts.”

The case is In re Michael S., G036217.


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