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Name: People v. Busser
Case #: D055088
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 07/20/2010

A restitution order was modified where the insurer did not incur an economic loss from its payment of accident repair costs as a result of appellant’s criminal misrepresentation. Appellant committed a hit and run causing property damage. He filed an insurance claim to recover repair costs for his car, but lied about how his car had been damaged. The accident ultimately was attributed to appellant, and police contacted appellant’s insurance provider who then investigated the incident for insurance fraud. After appellant was convicted of hit and run and insurance fraud, the court granted probation and ordered appellant to pay restitution to his insurance provider for both the costs of investigating the fraud as well as the costs of repairing the cars. Appellant challenged the order as it pertained to repair costs, noting the insurance agent indicated the provider would have been obligated to pay for repair costs under the policy had appellant been truthful about the facts of the accident. The appellate court agreed. Under Penal Code section 1202.4, subdivision (f)(3), the victim must suffer the economic loss because of the criminal conduct. Here, appellant’s criminal misrepresentations did not induce the insurer to make payments it would otherwise not have made since it was contractually obligated to pay for repair costs. Although the company might have a civil claim for rescission, the criminal process should not be used to supplement a civil suit, and a criminal court should not be reduced to a collection agency. The order was modified to delete repayment of repair costs. (Ed. note: The court did not analyze the issue under section 1203.1, which governs restitution in probation cases and gives the court more discretion.)