Vehicle Recovered But Car Thief Must Still Pay Restitution, Appeals Court Says 

By Joe Forward, Legal Writer, State Bar of Wisconsin

Aug. 2, 2012 – Cody Gibson probably didn’t think about insurance claims when he stole a car, robbed a gas station, then ditched it. Recently, a state appeals court ruled that Gibson must pay restitution to the victims’ car insurer, even though the vehicle was recovered by police.

That is, in State v. Gibson, 2011AP1760-CR (Aug. 1, 2012), the District II Court of Appeals ruled that Gibson must pay restitution of $6,292 where the victims received insurance proceeds before police recovered the car, and the insurer sold it at auction well below fair market value.

David and Billie Jo Pooler (the Poolers) called their insurer, Acuity Insurance Company, after realizing their car had been stolen. Gibson had stolen it and was later arrested for robbing the gas station. Acuity paid the Poolers $11,113 for the car. The next day, police recovered it.

Acuity gave the Poolers the option of taking the vehicle back, and returning the money, or letting Acuity take possession to sell at auction. The Poolers kept the proceeds and gave the car to Acuity, which sold it for $4,821. Acuity sought the balance as restitution from Gibson.

Under Wis. Stat. section 973.20, circuit courts must order defendants to pay full or partial restitution unless there’s a “substantial reason” not to. Courts can order defendants to return property, or if that is not possible, pay replacement costs. If an insurer has reimbursed an insured victim for a loss, the court can order the defendant to reimburse the insurer.

Gibson pled no contest to robbery with threat of force. At sentencing, the court “read-in” the crime of operating a motor vehicle without the consent of the owner, thus triggering the restitution statute aimed at restoring the financial damage suffered by victims of crimes.

However, Gibson argued that the state’s restitution law did not give the circuit court authority to order restitution because the stolen vehicle was recovered. Acuity should have required the Poolers to take the car back, or sold the car at fair market value, he argued.

“[T]he option to order return of the vehicle was no longer available at sentencing,” wrote Judge Lisa Neubauer. “Moreover, when the vehicle was recovered, the victim had been compensated by Acuity, and the circumstances made return of the vehicle at that time impractical.”

The court noted that recovery of stolen property does not automatically satisfy the restitution obligation under section 973.20, which gives the court discretion to fashion a proper remedy. 

Chief Judge Concurs 

Chief Appeals Court Judge Richard Brown wrote a concurring opinion to highlight and reject a foreseeable argument in future cases where criminals are ordered to pay restitution.

According to the court of appeals, the defendant’s criminal act must be a substantial factor in causing the financial harm to the person or entity requesting restitution. Gibson argued that Acuity’s practice of giving insureds the option to take proceeds in lieu of recovered property, not his criminal act, prevented the court from ordering a return of the car to the Poolers.

“The thief is the one who caused the insurer to act,” Brown wrote. “The insurer’s action should be considered a natural and probable consequence of the theft. For the thief to be able to now unring the bell would be impractical even if not impossible. The lead opinion gets it right.”