Sunday, August 24, 2014

The Enigmatic Body Shop

State v. Morse, 2014 VT 84

By Ember Tilton

Phillip Morse had a bad daya very, very bad day. For whatever reason, he decided to chase his ex-girlfriend with his truck, pass her and try to block the road. As if that wasn't enough, he then hit her car as she tried to get around him causing damage to her mother's green car.

Now comes the State of Vermont charging Mr. Morse with aggravated domestic assault, aggravated stalking, negligent operation of a vehicle and reckless endangermentall contrary to the peace and dignity of the State. Mr. Morse pled guilty in exchange for some lenience. He pled to grossly negligent operation and reckless endangerment, for dismissal of the other charges. 

One little piece, however, was not settled in the plea arrangement. This piece is what caused all of the conflict and controversy that couldn't be resolved without asking the SCOV. This last piece of the litigation puzzle was the auto-body bill. Ah yes, damages. In a criminal proceeding a victim may be entitled to a form of damages known as restitution. Because the cost of the damages were not agreed upon as part of the plea, the trial court held a contested restitution hearing.

At the hearing the ex-girlfriend testified that Mr. Morse hit her mother's green car and that there was no damage to the car prior to the accident. The mother testified that she had no collision coverage and that she had a estimate for $2,427.36 from the body shop.

Mr. Morse objected to the estimate as hearsay. He also claimed that the State had failed to prove that he was uninsured and therefore the damage was already covered. The trial court agreed with the State and issued a restitution order for the entire amount of the estimate.

Mr. Morse appeals. On appeal he raises four issues: "(1) the State failed to meet its burden of demonstrating that the victim’s loss was uninsured; (2) the court failed to make a specific finding that the damage was uninsured; (3) the court erred in admitting and using a repair estimate because it was hearsay; and (4) the court erred in calculating the amount of restitution by using the cost of repair rather than the difference in fair market value before and after the accident." The majority rejects each of them in turn.

First, the majority reasons that the trial court correctly decided that the loss was uninsured because Mr. Morse never testified there was insurance. If he was insured, it would have covered the loss and still could. The majority brushes this off with what I'd call "no blood, no foul" reasoning. The second issue, is nearly the same exact argument and again, the majority concludes there was no error.

The third argument would be interesting if not for one simple problem for Mr. Morse. The law seems quite clear on whether hearsay is admissible at a restitution hearing. Yup, you guessed itit is. Six-ways-from-Sunday, hearsay is allowed at a sentencing hearing. Restitution is part of sentencing. The logic seems to follow. Even Justice Dooley, concurring, agrees with this point, though he urges the Advisory Committee on the Rules of Criminal Procedure to draft rules specifically for restitution hearings. 

Finally, the majority rejects the final argument which was not raised in the trial court. Because it was not preserved prior to appeal, the majority reviews for plain error (which in layman's terms means "yeah, good luck with that"). Though the majority agrees with Mr. Morse that the before-and-after analysis is the right way to calculate damages and restitution, because the repair estimate was reasonable, the majority cannot find plain error. It would be interesting to know the value of this "green car." But alas, the fair market value of the vehicle in question eludes this opinion.

Justice Crawford dissents joined by Justice Skoglund. Justice Crawford notices something which the rest of SCOV didn't think was worthwhile. The mother had insurance. WAIT, WAIT, WAIT, WHAT???  Yeah, she testified she was covered during the hearing. The majority notes she had no "collision" insurance, but apparently she did have liability coverage which includes uninsured motorist coverage by law. Judge Crawford, it appears, read the transcripts from the hearing and knows a thing or two about car insurance. If the damaged property is insured, then restitution is not permitted.

Yep.  That's a head-scratcher.  

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