COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
JASON LEON DIEDRICH
MEMORANDUM OPINION * BY
v. Record No. 0962-98-1 JUDGE RICHARD S. BRAY
JUNE 29, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Robert W. Lawrence (Beale & Lawrence, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Jason Leon Diedrich (defendant) appeals the refusal of the
trial court to amend a prior sentencing order which required him
to make restitution for medical expenses incurred by the victim of
an assault and battery. Defendant argues that restitution is no
longer necessary and appropriate because “the victim [has] been
paid . . . by an insurance company that did not have a right of
subrogation.” Finding that the court erroneously concluded that
the collateral source rule precluded relief from the order, we
reverse the order and remand the proceedings.
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
Following a guilty plea to assault and battery, the trial
court sentenced defendant to twelve months in jail, suspended,
conditioned upon two years of good behavior and “full restitution
for the medical expenses of [the victim],” which totaled $14,000.
The victim subsequently instituted a civil action for damages
resulting from the offense, naming defendant and his employer,
C. R. Pittman, Inc., d/b/a Hoss’s Deli, as co-defendants. Both
employer and defendant were insured by a policy obtained by
employer, and the insurer defended the claim, subsequently
effecting a settlement with the victim for $98,000. The attendant
“Release of All Claims,” however, provided that it was “not to be
construed to release [defendant] of his obligation to pay the
court ordered restitution as ordered by the Newport News Circuit
Court,” a reservation made without defendant’s consent.
Upon learning of the settlement, defendant and the
Commonwealth jointly requested a hearing before the trial court,
seeking “clarification” of the restitution order.1 The court,
however, refused “to change [its] ruling,” and defendant appeals,
arguing that the medical expenses subject of the order were fully
1
The authority of the court to review and modify the order
is not in issue.
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satisfied in settlement of the victim’s civil action against
defendant and his employer.
Restitution for loss “is a well established sentencing
component, intended to benefit both offender and victim.” Frazier
v. Commonwealth, 20 Va. App. 719, 721-22, 460 S.E.2d 608, 609
(1995) (citations omitted). The victim receives restitution, and
the offender experiences a rehabilitative incentive to remedy the
loss resulting from the offense. Code § 19.2-305.1(A1) provides,
in pertinent part, that “any person who . . . commits, and is
convicted of, a crime in violation of any provision in Title 18.2
. . . shall make at least partial restitution . . . for actual
medical expenses incurred by the victim as a result of the crime.”
“At the time of sentencing, the court, in its discretion, shall
determine the amount to be repaid by the defendant and the terms
and conditions thereof.” Code § 19.2-305.1(C).
Thus, the propriety of the court’s original restitution order
is not in dispute. However, the order did not restrict the source
of funds or other benefits available to the victim from defendant,
either directly or indirectly, to satisfy the obligation. In
denying any relief to defendant from the settlement with the
insurer, the court characterized the settlement funds as a
“collateral payment.” In obvious reliance upon the “collateral
source rule,” the court reasoned that “just like a civil suit, you
might get paid by your insurance company, you sue somebody else
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and they don’t take that in consideration that you’ve been paid by
your own insurance company.”
“For more than a century, [the Supreme Court of Virginia] has
approved and applied the collateral source rule in tort cases.”
Schickling v. Aspinall, 235 Va. 472, 475, 369 S.E.2d 172, 174
(1988) (citations omitted). “Under that rule, compensation or
indemnity received by a tort victim from a source collateral to
the tortfeasor may not be applied as a credit against the quantum
of damages the tortfeasor owes.” Id. at 474, 369 S.E.2d at 174.
The doctrine simply sanctions any “windfall” to the victim rather
than the wrongdoer. Id. at 475, 369 S.E.2d at 174. Clearly, the
settlement funds in issue, paid to the victim by an insurer of
both defendant and his employer and on their behalf, were not
monies contemplated by the collateral source rule.
Accordingly, we reverse the order on appeal and remand the
proceeding to the trial court for further consideration of the
record, including such additional evidence as the court may deem
appropriate, to ascertain defendant’s relationship to the insurer
and the representation and extent of his interests in the civil
litigation and related settlement, together with the attendant
implications of such circumstances, and other relevant
considerations, upon defendant’s remaining obligation under the
restitution order, if any.
Reversed and remanded.
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