Thursday, October 7, 2010

Motorized Wheels Keep on Turning

On a particularly slow Saturday night in Bennington, Defendant and two friends got the bright idea to go down to Price Chopper, buy cigarettes, and ride away on the motorized shopping carts that the store provides to elderly, the disabled, and the morbidly obese.  After joy riding around the parking lot, Defendant and friends took the carts onto the street, down a path, over a pedestrian bridge, and into a river.  Total loss: three motorized carts worth about $1,191 apiece; Grand Theft Auto it is not.

Defendant was charged with grand larceny (13 V.S.A. § 2501) because each cart had a value over $900.  Defendant was found guilty and joint and severally liable for the damage, sentenced to 16–28 months and ordered to pay restitution of $3,573.

On appeal, Defendant raised two claims.  First, he argued that the restitution statute does not allow for joint and several liability.  Therefore, he can only be liable for the cart he actually drove into the river.  Second, he argued that the State failed to show that Price Chopper was uninsured on the loss since Price Chopper were intentionally self-insured for any damages below $350,000. 

The Court reviewed the first claim under a standard of sound discretion.  They noted that neither the restitution statute, 13 V.S.A. § 7043 nor its underlying reasoning excluded joint and several liability.  7043 limits recovery of damages to those that the State has established a direct causal nexus to restitution.  In this case, Defendant had openly and casually taken credit for trashing the carts as part of a joint activity and a joint decision making process.  Because the charges stemmed from the theft of three carts and their loss, and because the mischief stemmed from a common activity, the Court affirmed the award and the application of joint and several liability. 

The Court saw more of a challenge in Defendant’s second line of attack.  Essentially, Defendant made an argument that Price Chopper pays less for insurance because of its higher deductible.  These savings were then pocketed by Price Chopper as a kind of self-insurance fund to pay for losses under the policy threshold.  Not too shabby for a punk said the Court, but the statute makes no such fine distinction, and neither will the Court.  Uninsured losses are simply those not covered by a third-party insurance company or some-type of formal insurance pool.  No policy, no pool, no coverage.  End of story. 

No such thing as a free joyride.

Daniel Richardson

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