People v. Washpun

McDonald, J.

(concurring in part and dissenting in part.) I concur in part and dissent in part. Defendant claims the order of restitution improper as it awards restitution not to the victim, but to the victim’s insurance company. I agree. In cases where the victim has already been compensated, § 16(10) of the Crime Victim’s Rights Act, MCL 780.766(10); MSA 28.1287(766X10), grants the trial court authority to order restitution to either the Crime Victim’s Compensation Board or any other "person” who has compensated the victim. The *428statute does not authorize the payment of restitution to a victim’s insurance company. Although the word "person” may extend and be applied to bodies politic and corporate, MCL 8.3-1; MSA 2.212(12), I decline to hold the word "person” as utilized in this statute includes insurance companies. Had the Legislature intended restitution be paid insurance companies, I believe it would have expressly so stated, as insurance compensation is explicitly included in the first part of the statute. Thus I believe the Legislature’s failure to include insurance companies in the later part of the statute evinces its intent to exclude the same. Odette v Michigan Liquor Control Comm, 171 Mich App 137; 429 NW2d 814 (1988).

I am not suggesting a criminal should benefit from the wisdom of a victim’s insuring against loss of property and personal injury caused by a criminal act. An insurer may seek reimbursement of losses paid its insured on the civil side of the court, which is better suited to determine economic loss.

Other than some property crimes where an element of the offense requires economic proof that the value of the property exceeds a statutory dollar amount, I can find no crime that requires a fact finder to determine a victim’s damages for items such as lost wages, medical care, and property loss. That is not to say a trial court could not conduct a full evidentiary hearing prior to sentencing to determine such an amount, but the procedure would be cumbersome and time consuming and unduly delay the sentencing process.

There are additional problems concerning the scope of the representation of the accused. A quasi-civil postconviction hearing would require court-appointed counsel to defend claims of economic *429loss on behalf of the defendant, causing additional expense to the taxpayer.

And further, the sentencing court may have to allow the insurance company’s attorney to participate in the postconviction proceedings to prove its losses. Although the Legislature was willing to further burden our criminal justice system on behalf of the victim or persons who financially assisted the victim and the nonprofit Crime Victim’s Compensation Board, I do not feel they intended to extend this benefit to the stockholders of an insurance company by turning the Department of Corrections into their collection agency.

The majority’s expansion of the word "person” to include insurance companies appears just on its face but the attendant body of problems will cause havoc in our already overburdened criminal justice system.

I would reverse the trial court’s decision on this issue.