Dorothea Bradley v. Commonwealth of Kentucky

RENDERED: NOVEMBER 5, 2021; 10:00 A.M.
TO BE PUBLISHED

Commonwealth of Kentucky
Court of Appeals

NO. 2018-CA-1117-DG

DOROTHEA BRADLEY APPELLANT

ON DISCRETIONARY REVIEW FROM JEFFERSON CIRCUIT COURT
v. HONORABLE DARRYL S. LAVERY, JUDGE
ACTION NO. 18-XX-000023

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION
REVERSING AND REMANDING

** ** ** ** **

BEFORE: LAMBERT, TAYLOR, AND K. THOMPSON, JUDGES.

THOMPSON, K., JUDGE: This case is before us on discretionary review from the

Jefferson Circuit Court and involves whether restitution can properly be imposed

upon an uninsured driver to compensate another motorist for the loss associated

with having to pay her own automobile insurance deductible. The basis for

restitution ordered by the district court was that the uninsured driver pled guilty to
a failure to maintain motor vehicle insurance, and was therefore at-fault for the

resultant monetary damages; thus, the restitution was linked to the deductible the

victim motorist lost because the other driver was uninsured. However, the district

court committed reversable error by failing to conduct a proper hearing and to

thereafter make any findings regarding the uninsured driver being at-fault for the

underlying collision and being financially able to pay the restitution ordered.

On January 9, 2017, in Jefferson County, Dorothea Bradley was

involved in a vehicle collision with Shanetta Thompson. The police report for this

collision stated that Bradley failed to yield the right of way while exiting a parking

lot onto the roadway and struck the passenger side of Thompson’s car.

At the scene, Bradley was cited and charged with violating Kentucky

Revised Statutes (KRS) 186.170 (no registration) and KRS 304.39-080(5) (failure

of an owner to maintain required insurance or security, first offense). There are no

factual issues regarding Bradley’s violation of these statutes. On March 7, 2017,

the Commonwealth informed Bradley that it would seek restitution on behalf of

Thompson in the amount of $1,000 which represented the insurance deductible

incurred by Thompson owing to damage to her vehicle resulting from the accident.

On April 10, 2017, Bradley filed a motion to preclude the imposition

of restitution as a part of any sentence to be imposed upon her for the charged

offenses. Bradley’s motion sought to exclude the payment of restitution on the

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basis that any monetary damage resulting from the accident was not the direct

result of her criminal activity of having no insurance as required for the payment of

restitution under KRS 533.030(3).

Bradley’s motion was denied by the Jefferson District Court which

held that the applicable statutes were clear and unambiguous and that a person

convicted of having no insurance could be assessed restitution for damages

occurring as a result of an automobile accident. The district court noted that the

police report indicated that Bradley was at-fault for the accident. The district court

stated that if Bradley pled guilty to a violation of KRS 304.39-080, it would set a

date for a restitution hearing allowing Bradley reasonable time to prepare, thirty

days’ notice from the Commonwealth as to proposed witnesses and documents to

be introduced, and opportunity at the restitution hearing to present her own

evidence and offer rebuttal. The district court specifically stated that the restitution

hearing would be conducted, “in a manner consistent with” both Jones v.

Commonwealth, 382 S.W.3d 22 (Ky. 2011) and Dillard v. Commonwealth, 475

S.W.3d 594 (Ky. 2015). The district court also stated in its order that, “[a]t the

restitution hearing, the defendant shall have a reasonable opportunity, with the

assistance of counsel, to present evidence or other information to rebut the claim of

restitution and the amount thereof.”

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 Bradley subsequently pled guilty to a violation of KRS 304.39-080(5),

first offense. In exchange for her plea, the expired registration charge was

dismissed. Her plea offer was accepted by the district court and Bradley was

sentenced to ninety days, conditionally discharged for two years on the condition

of no new offenses. There was no monetary fine imposed. When Bradley entered

her guilty plea, the Commonwealth again indicated that it would seek restitution in

the amount of $1,000 as part of Bradley’s conditionally discharged sentence.

At the subsequent hearing on restitution, the Commonwealth

submitted a certified copy of Thompson’s insurance policy and materials

documenting her $1,000 deductible. That amount, and Thompson’s incurring that

amount, were not contested. At the Commonwealth’s request, the district court

also took judicial notice of the official traffic report which noted that Bradley

failed to yield the right of way to oncoming traffic when exiting a parking lot into

traffic. The district court did not take further evidence of Bradley’s fault for the

accident or resolve this issue of fault. Rather, the district court simply determined

that it was the criminal act of failing to have insurance, not the accident, which

caused Thompson to suffer an economic injury and concluded Bradley was

obligated to pay restitution. For purposes of appeal, the district court did allow

Bradley to testify by proffer as to the issue of fault, and she testified that

Thompson was speeding when the accident occurred and had run a red light.

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 The district court, in its written order, again concluded that Bradley

was obligated to pay restitution without making a factual finding that Bradley was

at fault in the accident and ordered her to pay Thompson the total amount of

$1,000 at the rate of $75.00 per month. Bradley appealed to the circuit court. The

circuit court ruled that the district court acted within its discretion when it imposed

restitution, finding that had Bradley carried liability insurance, Thompson would

not have incurred direct, out-of-pocket losses. It further ruled that there was no

denial of due process.

Bradley sought and was granted discretionary review. Subsequently,

another panel of this Court published the opinion in Dale v. Commonwealth, 604

S.W.3d 281 (Ky.App. 2019). Recognizing the importance of Dale to her appeal,

Bradley sought and was granted permission to cite the Dale opinion as additional

authority in this matter and the import of Dale will be addressed herein.

In her appeal, Bradley argues that the district court abused its

discretion in ordering restitution because: (1) her only conviction under KRS

304.39-080(5) was not a crime that resulted in property damage to Thompson’s

vehicle; (2) a criminal restitution hearing is an inappropriate forum to resolve civil

issues of causation, damages, and apportionment; (3) requiring restitution for an

offense under KRS 304.39-080(5) creates negligence per se in violation of the

right to a jury trial, usurps due process, and is contrary to existing precedent; (4)

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she was denied due process when the district court refused to allow her to contest

that she was at fault for the accident; and (5) the district court did not make a

factual finding regarding Bradley’s ability to pay.

Whether the district court properly ordered restitution for damages

incurred by Thompson as a direct result of a criminal act for which Bradley has

been convicted is properly reviewed under an abuse of discretion standard.

Commonwealth v. Morseman, 379 S.W.3d 144, 147 (Ky. 2012). “The test for

abuse of discretion is whether the trial judge’s decision was arbitrary,

unreasonable, unfair, or unsupported by sound legal principles.” Goodyear Tire &

Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000). However, when asked

to “construe statutory provisions, we do so de novo.” Morseman, 379 S.W.3d at

148.

In analyzing Bradley’s first and third assignments of error, we agree

with Bradley’s contention that her conviction under KRS 304.39-080(5) was not a

crime, the commission of which directly resulted in damage to Thompson’s

vehicle. However, that does not end our inquiry. As explained herein, we

conclude that a motorist’s failure to have or maintain insurance coverage, in clear

violation of the laws of the Commonwealth and the explicit intention of our

Legislature, may directly cause financial “damage” to insured motorists (in the

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form of lost/paid insurance deductibles), when such uninsured motorists are found

to be at fault in, or otherwise be a cause of, the underlying motor vehicle accident.

There are two separate sources of statutory provisions relevant to this

determination. The first are to be found within Commonwealth’s Motor Vehicle

Reparations Act (MVRA).

KRS 304.39-010 states:

The toll of about 20,000,000 motor vehicle accidents
nationally and comparable experience in Kentucky upon
the interests of victims, the public, policyholders and
others require that improvements in the reparations
provided for herein be adopted to effect the following
purposes:

(1) To require owners, registrants and operators of
motor vehicles in the Commonwealth to
procure insurance covering basic reparation
benefits and legal liability arising out of
ownership, operation or use of such motor
vehicles[.]

Next, KRS 304.39-110(1) specifies the mandatory “basic” limits of

insurance coverage which every vehicle owner and operator must acquire prior to

operating a motor vehicle on our roads. Such requirements include a minimum of

$25,000 of coverage for damage to property.

KRS 304.39-080(5), to which Bradley voluntarily pled guilty,

provides that every owner or operator of a motor vehicle shall have and maintain

the insurance or security required by law “for payment of tort liabilities” and that a

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violation of such requirements can result in not only the revocation of a motor

vehicle’s registration, but also subject the uninsured motorist to “the penalties

in KRS 304.99-060.”

The MVRA’s language underscores our Legislature’s clear and

specific intent that all motor vehicles registered in our Commonwealth must be

insured not only for bodily injuries, but also for property damages.

The mandatory criminal penalties for Bradley’s violation are found in

KRS 304.99-060. Subsection (1)(a) states that the “owner” of an uninsured vehicle

shall, among other penalties, be fined between $500 and $1,000, or receive up to a

ninety-day jail sentence, or be both fined and jailed. KRS 304.99-060(1)(a)1.

Subsection (2)(a) similarly provides that a person who “operates” an uninsured

motor vehicle shall be fined between $500 and $1000, or receive up to a ninety-day

jail sentence, or be both fined and jailed. KRS 304.99-060(2)(a). Subsection (3)

provides that if an “operator” is also the “owner” of the uninsured vehicle, then

that person shall be subject to penalties under both sections. KRS 304.99-060(3).

In accordance with these statutes, Bradley could have been fined up to

$1,000 by the district court as the owner of an uninsured vehicle and fined up to an

additional $1,000 as the operator of the vehicle at the time of the accident. Other

than alleging an inability to pay, Bradley would be able to offer no objection to

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those statutory financial penalties if they had been imposed. However, no

monetary fine was levied. Instead, Bradley objects to paying $1,000 to Thompson.

Absent from the above statutes, and the MVRA in general, are any

provisions for the imposition of restitution. Restitution for criminal conduct is

addressed within KRS Chapters 532 and 533 of the Kentucky Penal Code.

Restitution is defined as “any form of compensation paid by a convicted person to

a victim for counseling, medical expenses, lost wages due to injury, or property

damage and other expenses suffered by a victim because of a criminal act[.]” KRS

532.350(1)(a) (emphasis added). It is mandatory in Kentucky for a trial court to

consider the economic impact of crimes on the victims to order the defendant to

make restitution, in addition to any other penalty provided, for injuries to victims

including their “monetary damage[s]” or “direct out-of-pocket losses” which

resulted from the crime committed. KRS 533.030(3). Notably, that definition

includes only damages caused by a criminal act, not a negligent act.

KRS 532.032(1) addresses the general circumstances when restitution

in criminal cases must be paid. That statute provides:

Restitution to a named victim, if there is a named victim,
shall be ordered in a manner consistent, insofar as
possible, with the provisions of this section and KRS
439.563, 532.033, 533.020, and 533.030 in addition to
any other part of the penalty for any offense under this
chapter. The provisions of this section shall not be
subject to suspension or nonimposition.

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Subsection (3) of that same statute provides that “[i]f probation, shock probation,

conditional discharge, or other alternative sentence is granted, restitution shall be a

condition of the sentence.”

While KRS 533.030(3), 532.032(1) and (3) all use the mandatory

word “shall,” the imposition of restitution by our courts is limited to the extent that

to do so is consistent with the statutes referred to therein, including KRS

533.030(3) which specifically limits the restitution award to those damages

suffered “as a result of the crime.” It is this extent of the nexus or connection,

proximate or otherwise, between (a) the crime(s) committed, and (b) the

injuries/damages for which restitution is ordered, that concerns this inquiry.

In construing the MVRA and penal code together, we must first

recognize that the legislative policy of the MVRA is “to keep uninsured motorists

off Kentucky’s roads.” Nantz v. Lexington Lincoln Mercury Subaru, 947 S.W.2d

36, 38 (Ky. 1997). Our penal code states, “[a]ll provisions of this code shall be

liberally construed according to the fair import of their terms, to promote justice,

and to effect the objects of the law.” KRS 500.030. The courts of the

Commonwealth are to “liberally construe[]” the restitution statutes found within

our penal code “in favor of their remedial purpose.” Morseman, 379 S.W.3d at

148. In Morseman, our Supreme Court acknowledged that Kentucky’s restitution

statutes require “a causal connection between the criminal act and the ordered

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restitution.” Id. at 151. While there is an exception in those cases where the

defendant agrees to pay restitution pursuant to a plea agreement, that exception is

not applicable here because Bradley did not voluntarily agree to pay restitution as

part of her conditional guilty plea. Id. at 152. Therefore, the issue here is whether

there was a causal connection between the crime and the damage.

In Rentschler v. Lewis, 33 S.W.3d 518 (Ky. 2000), our Supreme Court

held that there was no causal connection between a car accident and the criminal

offense of operating a motor vehicle without a valid operator’s license. As the

Court explained:

The fact of consequence in this case is whether the
manner in which Lewis operated his vehicle was a
substantial factor in causing the accident. His status as a
licensed or unlicensed driver would not tend to prove or
disprove that fact. Therefore, the trial judge correctly
concluded that such evidence was irrelevant, thus
inadmissible.

Id. at 519. The Court did not specifically address in Rentschler whether restitution

was available to a person whose vehicle was damaged by a defendant operating a

vehicle in violation of KRS 304.39-080(5). However, its reasoning was later found

applicable in Dale, where that precise issue was addressed.

In Dale, 604 S.W.3d 281, the defendant entered a conditional guilty

plea to KRS 304.39-080 for failure to maintain insurance after he was involved in a

fatal motor vehicle accident. Prior to the court hearing evidence regarding

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restitution, the defendant filed for bankruptcy which stayed a related civil action

filed by the victim’s estate in circuit court. Noting that ordered restitution is not

dischargeable, the district court ordered Dale to pay the statutory maximum of

$100,000 to the deceased motorist’s estate. The categories of damages for which

restitution was ordered in Dale were (a) the value of a motorcycle, and (b) lost

earnings of the deceased. Dale, 604 S.W.3d at 284. That award was affirmed by

the circuit court and discretionary review granted by the Court of Appeals.

It is the character of the damages sustained by and awarded to the

victim in Dale which distinguishes it, as a matter of fact and law, from the one

item of damage (insurance deductible only) alleged herein.

Dale argued that the injuries for which restitution was ordered could

not be the direct result of his failure to maintain insurance. Id. at 287. The Court

of Appeals noted that Kentucky courts had not addressed the issue of “what types

of losses arise ‘as a direct result of the crime,’” as that phrase is used in KRS

533.030(3). Id. at 288. Looking to federal law and Rentschler, the Court

concluded that “Dale’s failure to maintain insurance did not directly cause the

financial loss incurred by Whitaker” and “does not prove whether his actions

caused the accident.” Id. Importantly, this Court emphasized that the

Commonwealth was required to prove more than that Dale did not maintain

insurance:

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 [T]he Commonwealth failed to prove Dale’s failure to
maintain insurance directly caused Whitaker’s death or
damage to his motorcycle. Because Dale was not
charged with any crime in connection with the nature of
restitution sought, and because causation was not
addressed, the district court improperly imposed
restitution on Dale.

Id. at 288-89.

Such nexus between a statutory violation and the (allegedly) resultant

injuries has been explored before in our Commonwealth within other contexts.

Utilizing the standard of “substantial factor,” the Supreme Court has stated that

while it is unquestioned that violations of statutes constitute negligence per se,

such statement is coextensive with the requirement that the violation must be “a

substantial factor in causing the result.” Britton v. Wooten, 817 S.W.2d 443, 447

(Ky. 1991).

In the present matter, as in Dale, the only crime to which Bradley

entered a plea of guilty was the violation of KRS 304.39-080(5). Unlike in Dale,

here our driver was only ordered to pay restitution for the monetary value of the

deductible lost/suffered by the victim. It is agreed that structural damage to an

automobile, or physical injuries to a motorist, might not be said to be actually

caused by, or proximately caused by, the failure to have automobile insurance—

even though an uninsured automobile should not be operated on our roadways.

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 However, in practice and reality, the loss of a deductible, by one

whose vehicle is struck by an uninsured motorist, is indeed a “direct” injury that is

readily known to any motorists in the Commonwealth who have had the all-too-

common experience of being hit by an uninsured driver. Such conclusion is in

conformity with our penal code at KRS 501.060(1) regarding causal relationships,

where it is stated that “[c]onduct is the cause of a result when it is an antecedent

without which the result in question would not have occurred.” Bradley’s conduct

in failing to have insurance was most definitely an antecedent, without which

Thompson would not have incurred the loss of her deductible. The financial injury

to motorists who follow the law, caused by those who do not, is both readily

foreseeable and a natural consequence of uninsured motorists’ derogation of the

MVRA.

If Bradley was at fault in the accident, but for Bradley’s failure to

have liability insurance, Thompson would have recovered her deductible in

conformity with our insurance statutes, regulations, and the general insurance

practices of our Commonwealth. As stated another way, by virtue of her criminal

failure to have liability insurance, if Bradley was at fault, Bradley directly caused

Thompson to lose her deductible and/or denied Thompson the ability to recover

her deductible.

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 Having concluded that it was proper for the district court to recognize

the loss of a deductible as a compensable injury in restitution proceedings, we next

turn our inquiry to the issue of fault for the underlying accident, the conduct of the

restitution hearing, the sufficiency of the evidence presented, and district court’s

findings. This review encompasses Bradley’s second and fourth arguments.

In Jones, the Supreme Court described and set forth the requisites of

due process within restitution determinations. Two of the listed requirements

relevant to the present determination are:

• a reasonable opportunity for the defendant with
assistance of counsel to present evidence or other
information to rebut the claim of restitution and the
amount thereof; and

• the burden shall be upon the Commonwealth to
establish the validity of the claim for restitution
and the amount of restitution by a preponderance
of the evidence, and findings with regard to the
imposition of restitution must be supported by
substantial evidence.

Jones, 382 S.W.3d at 32.

From the record presented, it is obvious that restitution was both

sought by the Commonwealth, and considered by the district court, based upon the

accident report (quoted by the district court in its opinion) which reported that

Bradley failed to yield right of way in entering the roadway from a parking lot.

That report was the only evidence of Bradley’s fault submitted into evidence.

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Police reports are generally considered hearsay. Pursuant to the Kentucky Rules of

Evidence (“KRE”) 803(8), a police report is not exempt from hearsay, unless it is

offered for an admissible purpose. Allen v. Gueltzow, 535 S.W.3d 333, 335

(Ky.App. 2017). KRE 803(8)(A) specifically excludes police reports from the

public records exception to the hearsay rule. Therefore, in all other contexts, a

police report could not be lawfully considered as evidence of fault for the accident.

However, in the context of restitution proceedings such reports may be considered

by the court. KRE 1101(d)(5) states that the Kentucky Rules of Evidence are not

applicable to “sentencing by a judge[.]”

Restitution falls within the court’s sentencing authority and, therefore,

does not require the strict application of the Kentucky Rules of Evidence. As

stated in Jones, “implicit in our statutory scheme requiring restitution, is an

adversary hearing, ordinarily conducted in conjunction with the final sentencing

hearing, at which the trial court will have broad discretion to make findings based

upon reliable information, but not bound by the rules of evidence or traditional

rules of pleading.” Jones, 382 S.W.3d at 31.

Certainly, the district court could have viewed the facts described in

the police report, and the conclusion drawn therein, as that of a disinterested third

party created in the performance of their duties as a responding officer. In many, if

not most, restitution circumstances, a court’s reliance on or reference to a police

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report within a determination that an uninsured driver was at fault in an accident

could be considered to be supported by substantial evidence. Substantial evidence

is that evidence, taken alone or in light of other proof, that a reasonable mind

would find sufficient to support a conclusion. Goncalves v. Commonwealth, 404

S.W.3d 180, 189 (Ky. 2013). Admitting the report into evidence, and reliance

upon the report by the district court, would fall in line with the Supreme Court’s

determination in Hearn v. Commonwealth, 80 S.W.3d 432, 436 (Ky. 2002), where

the Court recognized the clear legislative intent that restitution be established

efficiently and fairly as part of the sentencing process in a summary proceeding

that “serves judicial economy and the traditional notions of fair play and

substantial justice.” The Court further observed that “[t]he trial court [in a criminal

case] has the statutory authority to establish restitution and is in the best position to

make the appropriate and well-informed decision in a fair and impartial

manner.” Id.

However, the district court did not properly allow for Bradley to

contest a finding of her negligence. Efficiency and speed aside, while KRS

Chapter 532 requires judges to impose restitution when appropriate, it does not

compel judges to do so, “without conducting a proper hearing with whatever

degree of formality is necessary in the particular circumstances to assure

compliance with constitutional due process.” Jones, 382 S.W.3d at 31.

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Furthermore, “[i]n the more complex claims, with factual issues that do not lend

themselves to being reliably resolved in a summary proceeding, the trial judge

must exercise the broad discretion of that office to resolve the matter in a way that

respects the constitutional rights of all the parties and that achieves substantial

justice.” Id.

Allowing Bradley to only offer rebuttal on the issue of fault by proffer

did not allow her “to present evidence or other information to rebut the claim of

restitution[,]” which in turn violated her rights of due process within the

proceedings. Id. at 32.

As to the last assignment of error, that the district court did not make a

necessary factual finding regarding her ability to pay ordered restitution, Bradley is

also correct. Bradley’s counsel preserved this issue at the restitution hearing. The

district court did not take evidence of Bradley’s alleged indigence and, again, made

no related findings of fact or conclusions of law. Since this matter was briefed,

this Court rendered the opinion in Compise v. Commonwealth, 597 S.W.3d 175

(Ky.App. 2020). In that decision we determined that the circuit court hearing a

motion for revocation should have made findings regarding defendant’s financial

situation and ability to pay restitution, stating:

While the issue of restitution is not directly before
us, the manner in which restitution was ordered in this
case gives us pause. There were several indications that
Compise was impoverished, such as that she was

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 appointed the public defender and was repeatedly
released on her own recognizance so that she could work
because she could not afford to pay a bond.

...

Although the circuit court must have been aware that
Compise was impoverished given that it chose to omit
ordering her to pay a monthly supervision fee to
Probation and Parole in the order granting pretrial
diversion, the court apparently never considered whether
Compise had the ability to pay restitution when granting
pretrial diversion or issuing its ruling on the amount of
restitution due. Findings should have been made
regarding Compise’s financial situation, her ability to pay
restitution, and what, if any, monthly payments she could
afford. See Wallace v. Commonwealth, No. 2013-CA-
001031-MR, 2015 WL 603395, at *2-3 (Ky.App. Feb.
13, 2015) (unpublished) (explaining that findings must be
made as to whether a defendant is a “poor person” and
imposition of restitution is improper if the defendant
would not be required to pay court costs or public
defender fees); Neal v. Commonwealth, No. 2005-CA-
001255-MR, 2007 WL 867088, at *2 (Ky.App. Mar. 23,
2007) (unpublished) (discussing that counsel is
ineffective if counsel failed to inquire as to defendant’s
ability to meet restitution payments and defendant in fact
lacked such ability).

Id. at 181.

It was incumbent upon the district court to enter findings regarding

defendant’s financial situation and ability to pay prior to imposing restitution. The

court within those findings might also advise whether it had determined to order

restitution against Bradley in lieu of imposing a monetary fine for her admitted

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criminal conduct. This would appear to have been the court’s design, but such is

not reflected in the record.

Accordingly, we reverse and remand the Jefferson Circuit Court’s

opinion and order affirming the Jefferson District Court’s judgment as to

restitution and instruct the circuit court to vacate and remand the judgment for the

district court to conduct a full restitution hearing in conformance with Jones, 382

S.W.3d at 31-32, and to make factual findings regarding both Bradley’s fault for

the underlying motor vehicle accident and her ability to pay restitution.

ALL CONCUR.

BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:

Cicely J. Lambert Andy Beshear
Christopher B. Thurman Attorney General of Kentucky
Louisville, Kentucky (former)

David A. Sexton
Special Assistant Attorney General
Louisville, Kentucky

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