IN THE COURT OF APPEALS OF IOWA
No. 19-0822
Filed April 1, 2020
STATE OF IOWA,
Plaintiff-Appellee,
vs.
CHAD LINDSAY,
Defendant-Appellant.
________________________________________________________________
Appeal from the Iowa District Court for Dickinson County, Carl J. Petersen,
Judge.
Chad Lindsay appeals the restitution order entered after he pled guilty to
one count of failure to obtain workers’ compensation liability insurance.
AFFIRMED.
Martha J. Lucey, State Appellate Defender, and Robert P. Ranschau,
Assistant Appellate Defender, for appellant.
Thomas J. Miller, Attorney General, and Martha E. Trout, Assistant Attorney
General, for appellee.
Considered by Vaitheswaran, P.J., and Doyle and May, JJ.
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DOYLE, Judge.
Chad Lindsay pled guilty to one count of failure to obtain workers’
compensation liability insurance for his trucking business, in violation of Iowa Code
sections 87.1 and 87.14A (2013), a Class D felony. The district court deferred
judgment, placed Lindsay on probation, and ordered him to pay costs, fees, and
restitution. After a restitution hearing, the court assessed Lindsay $75,846.91 in
victim restitution, the amount of benefits a deputy workers’ compensation
commissioner ordered Lindsay to compensate an employee for his work-related
injury. Lindsay challenges the award on appeal.1
We review the restitution order for correction of errors at law. See State v.
Covel, 925 N.W.2d 183, 187 (Iowa 2019). “We will reverse if the court has not
properly applied the law or the court’s findings lack substantial evidentiary
support.” Id. Our restitution statute requires the sentencing court to order
restitution for victims of crime and prioritizes victim restitution over all other forms
of restitution. See Iowa Code § 910.2(1). The court may award victim restitution
for pecuniary damages that are causally related to the defendant’s criminal
activities. See Iowa Code § 910.3; State v. Bonstetter, 637 N.W.2d 161, 165 (Iowa
2001). “Pecuniary damages” are “all damages to the extent not paid by an insurer
1 Because the sentencing order was not a final judgment, our supreme court
treated Lindsay’s notice of appeal as an application for discretionary review and
granted it. See Daughenbaugh v. State, 805 N.W.2d 591, 598 (Iowa 2011) (“[A]
person who receive[s] a deferred judgment, [i]s placed on probation, and [i]s
ordered to pay restitution and court costs, has no right of direct appeal because
there is no final judgment in the district court.”); State v. Stessman, 460 N.W.2d
461, 464 (Iowa 1990) (“We believe that the proper route of possible review for a
restitution order issued as part of or following a deferred judgment is an application
for discretionary review.”).
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on an insurance claim by the victim, which a victim could recover against the
offender in a civil action arising out of the same facts or event.” Iowa Code
§ 910.1(3) (emphasis added).
Lindsay first contends the district court erred in ordering victim restitution in
the same amount the victim was awarded in the workers’ compensation action.
He argues that by pursuing a workers’ compensation claim, the employee is
precluded from recovering in a civil action. See Stroup v. Reno, 530 N.W.2d 441,
443 (Iowa 1995) (holding that an employee may elect to either pursue a civil action
in court for a workplace injury or pursue an administrative workers’ compensation
claim, “but not both”). But in determining victim restitution, the question is whether
“the victim could recover against the offender under any civil-based theory of
recovery ‘arising out of the same facts or events.’” State v. Hollinrake, 608 N.W.2d
806, 808 (Iowa 2000) (emphasis added). Iowa Code section 87.21 allows an
employee to recover personal injury damages for a workplace injury in a civil action
when an employer fails to obtain workers’ compensation liability insurance. Iowa
Code § 87.21. Because Lindsay’s criminal act supports a civil claim for recovery,
the court could award restitution to compensate the victim for the damages arising
from that criminal act. The district court properly applied the law in assessing victim
restitution.
Lindsay also contends his counsel was ineffective for failing to request an
order from the district court allowing for a setoff against the restitution for any
payments made under to the workers’ compensation award. 2 To succeed on this
2 Because recent amendments to Iowa Code chapter 814 that limit a defendant’s
right to appeal do not apply to cases pending on July 1, 2019, see State v. Macke,
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claim, Lindsay must show his counsel breached a duty and prejudice resulted. See
State v. Graves, 668 N.W.2d 860, 869 (Iowa 2003). If counsel’s performance was
not objectively reasonable, the first prong of the test is met. See State v. Ortiz,
905 N.W.2d 174, 183 (Iowa 2017).
Section 910.8 states that “any restitution payment by the offender to a victim
shall be set off against any judgment in favor of the victim in a civil action arising
out of the same facts or event.” “[T]he purpose of the statute is to coordinate civil
recoveries with criminal restitution to avoid double recovery.” State v. Driscoll, 839
N.W.2d 188, 191 (Iowa 2013) (citing State v. Klawonn, 688 N.W.2d 271, 275 (Iowa
2004)). Lindsay acknowledges that “the code does not appear to allow for a
restitution payment set off against a workers’ compensation arbitration award.” But
he argues that a setoff is required, citing State v. Paxton, 674 N.W.2d 106, 111
(Iowa 2004), in which the court ordered victim restitution reduced by the amount
of pecuniary damages the victim recovered from an arbitration award against the
defendant’s employer for the defendant’s criminal act. The Paxton court noted,
any damages recoverable in a civil action would be subject to
reduction to the extent of payments made to the victim for the same
damages. Thus, the prohibition against double recovery, and the
consequent credit for payments already received by the victim, is
inherent in the statutory measure of recovery.
Id. Although a workers’ compensation proceeding is not a “civil action” per se, and
a workers’ compensation award is not specifically mentioned in section 910.8, we
believe the holdings of Paxton, Klawonn, and Driscoll apply here. The State
agrees that, “Because the law requires a set off, if and when Lindsay makes a
933 N.W.2d 226, 235 (Iowa 2019), we may consider Lindsay’s claim on direct
appeal.
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payment, he would be given credit toward the restitution payment.” So we
conclude any payments Lindsay makes to the employee under the workers’
compensation award should be set off against the restitution award, and vice
versa.
Lindsay had made no payments to the employee under the workers’
compensation award to compensate the employee’s pecuniary losses. Because
he had not done so when the restitution order was entered, counsel had no duty
to request a setoff, nor was there any need to request an order allowing for a setoff.
Thus, his ineffective-assistance claim fails.
AFFIRMED.