COLORADO COURT OF APPEALS 2017COA121 

Court of Appeals No. 16CA1612 

Adams County District Court No. 15CR1433 

Honorable Robert W. Kiesnowski, Jr., Judge 

The People of the State of Colorado, 

Plaintiff-Appellant, 

v. 

Steven Robert Paul Stanley, 

Defendant-Appellee. 

ORDER AFFIRMED AND CASE 

REMANDED WITH DIRECTIONS 

Division III 

Opinion by JUDGE FREYRE 

Booras, J., concurs 

Webb, J., specially concurs 

Announced September 7, 2017 

David J. Young, District Attorney, Cameron M. Munier, Senior Deputy District 

Attorney, Brighton, Colorado, for Plaintiff-Appellant 

Bendinelli Law Firm, PC, Mark G. Mayberry, Westminster, Colorado, for 

Defendant-Appellee
1 

¶ 1 In this prosecution appeal of a restitution setoff, we must 

reconcile the dual policy interests underlying the restitution statute, 

§ 18-1.3-603, C.R.S. 2016, of fully compensating a victim on the 

one hand and of precluding double recovery by the victim on the 

other. 

¶ 2 The prosecution asks us to reverse the trial court’s order 

awarding the defendant, Steven Robert Paul Stanley, a $25,000 

setoff against restitution of $30,000, an amount paid to the victim 

by the Crime Victim Compensation Program (CVCP). The setoff 

arose from a policy-limits settlement between the victim and 

Stanley’s automobile insurance company. Despite uncontroverted 

evidence of this settlement, the prosecution argues that Stanley 

failed to sufficiently prove entitlement to a setoff because he did not 

show that the settlement proceeds were “earmarked” for the same 

expenses reimbursed by the CVCP, leaving open the possibility that 

the victim used the proceeds for losses not compensated by the 

CVCP. 

¶ 3 Because the level of specificity for apportioning urged by the 

prosecution would render meeting a defendant’s burden of proving 

a setoff under § 18-1.3-603(3) and (8)(c)(I) impractical — and in 
2 

some cases impossible — we conclude that a defendant sufficiently 

meets his or her burden of going forward to invoke the trial court’s 

discretion to award a setoff by showing that the settlement 

included one or more categories of loss (expenses) paid by the CVCP 

and covered by the restitution order. 

¶ 4 Thus, we affirm in part the trial court’s ruling on 

apportionment. However, because the victim may have used some 

or all of the settlement proceeds for losses not compensated by the 

CVCP, we remand the case to permit the prosecution to respond by 

showing that the victim used or allocated settlement proceeds for 

losses proximately caused by Stanley’s criminal conduct but which 

were not paid by the CVCP and covered by the restitution order. 

This procedure gives effect to the restitution statute’s legislative 

intent “to make full restitution” to victims for their losses. § 18-1.3-

601(1)(b), C.R.S. 2016. If the prosecution makes such a showing, 

the trial court should amend its restitution order by reducing the 

amount of the setoff. 

I. The Restitution Order 

¶ 5 This case arises from a traffic accident that occurred on April 

11, 2015. On May 7, 2015, Stanley’s automobile insurer, Geico 
3 

Indemnity Co. (Geico), entered into a “Release in Full of All Claims” 

(the Release) with the victim and her husband. Under the 

settlement, Geico paid the victim $25,000 for all claims related to 

and stemming from the accident in exchange for a full and final 

release of all claims against Stanley and Geico. The Release 

released and forever discharged Stanley and Geico 

[f]rom any and every claim, demand, right or 

cause of action, of whatever kind or nature, on 

account of or in any way growing out of any 

and all personal injuries and consequences 

thereof, including, but not limited to, all 

causes of action preserved by the wrongful 

death statute applicable, any loss of services 

and consortium, any injuries which may exist 

but which at this time are unknown and 

unanticipated and which may develop at some 

time in the future, all unforeseen 

developments arising from known injuries, and 

any and all property damage resulting or to 

result from an accident that occurred on or 

about the 11th day of April, 2015 . . . . 

¶ 6 On February 4, 2016, Stanley pleaded guilty to felony 

vehicular assault, driving under the influence, and careless driving. 

Under the plea agreement, the trial court deferred the entry of 

judgment and sentence on the felony for four years, and sentenced 

Stanley to four years of concurrent probation on the misdemeanor 
4 

convictions. The court gave the prosecution ninety days to submit 

a restitution request. 

¶ 7 On May 3, 2016, the prosecution filed a motion to impose 

restitution and attached a report from the CVCP. It showed that 

the CVCP had paid the victim $30,000, the maximum amount 

allowable by statute, for pecuniary losses proximately caused by 

Stanley’s criminal conduct. See § 24-4.1-109(2)(b), C.R.S. 2016. It 

paid the victim $8048 for lost wages and $21,952 for medical 

expenses.1 The report stated that “[e]ach bill received by CVCP is 

verified to ensure that it is crime related; that no other funding 

source was responsible (insurance) and to verify the most up to 

date balance.” 

¶ 8 Believing that the insurance Release and settlement satisfied 

his restitution obligation, Stanley never filed an objection to the 

prosecution’s motion for restitution. On June 14, 2016, the court 

granted the unopposed motion and ordered Stanley to pay the 

victim $30,000 in restitution. Later that same day, Stanley filed a 

 

1 The exact date of the CVCP’s payment to the victim is not clear 

from the record. The CVCP report contains a notation that it was 

printed on “2/9/2016” and was filed with the court on “May 3, 

2016.” 
5 

Motion for Reconsideration of the Restitution Order, explaining his 

misunderstanding and requesting a hearing and a setoff. The court 

granted Stanley’s hearing request. 

¶ 9 At the hearing, the parties relied on two documents — the 

CVCP report evidencing the $30,000 payment and the Release 

evidencing the $25,000 settlement. Neither party presented any 

other evidence. 

¶ 10 The prosecution argued that because the Release constituted 

an unapportioned settlement, Stanley bore the burden of proving 

that the settlement proceeds were intended to compensate the 

victim for the same lost wages and medical expenses compensated 

by the CVCP. Specifically, “[the Release] talks in no way about 

where this $25,000 is to be allocated. Is it supposed to go to 

medical or pay for the damages to the vehicle?” Relying on People v. 

Lassek, 122 P.3d 1029 (Colo. App. 2005), the prosecution argued 

that the “entire amount could have simply gone to [nonpecuniary 

losses not covered by the restitution statute]” and asked the court 

to find that Stanley had not met his apportionment burden. 

¶ 11 Stanley agreed that he bore the burden of establishing the 

existence of a setoff. He asserted that the Release “broadly 
6 

apportioned” the proceeds through the language stating an intent to 

compensate for “any and every claim” for loss of services, as 

relevant to wage loss, and for personal injuries and all 

consequences of them, as relevant to medical expenses. He 

reasoned that the settlement proceeds necessarily included the 

medical and lost wages compensation the victim received from the 

CVCP. He further argued that the CVCP was remiss in failing to 

offset restitution by the settlement amount under § 24-4.1-110(1), 

C.R.S. 2016. 

¶ 12 The trial court held that $30,000 in restitution was 

reasonable, due, and owing. It further held that the Release’s broad 

language was “all encompassing and [that] it include[d] every type 

of claim imaginable and any type of injury imaginable.” It found the 

Release “contemplate[d] payment for the very same categories that 

are set forth in the prosecution’s restitution report,” and noted that 

these types of releases never apportioned proceeds to specific loss 

categories. Therefore, it awarded Stanley a $25,000 setoff against 

restitution and ordered him to pay the $5000 net amount.2 

 

2 Stanley does not cross-appeal the court’s findings concerning the 

reasonableness of the $30,000 restitution award. 
7 

II. Analysis 

¶ 13 Relying on Lassek and People in Interest of T.R., 860 P.2d 559 

(Colo. App. 1993), the prosecution urges us to reverse the court’s 

order, arguing that the Release is an unapportioned settlement that 

does not “earmark” the proceeds for the same expenses 

compensated by the CVCP, as required by these cases. While we 

acknowledge that Lassek and T.R. could be read to support this 

argument, for the reasons described below we conclude that these 

cases do not require the level of specificity urged by the 

prosecution.3 

A. Standard of Review 

¶ 14 We review a trial court’s restitution award for an abuse of 

discretion. People v. Sieck, 2014 COA 23, ¶ 5. A trial court abuses 

its discretion when it misconstrues or misapplies the law, id., or 

when its decision fixing the amount of restitution is not supported 

by the record, see People v. Rivera, 968 P.2d 1061, 1068 (Colo. App. 

1997). “We will not disturb the district court’s determination as to 

 

3 In any event, we are not bound by decisions of other divisions of 

this court. People v. Smoots, 2013 COA 152, ¶ 20, aff’d sub nom. 

Reyna-Abarca v. People, 2017 CO 15. 
8 

the proper amount of restitution if it is supported by the record.” 

People v. Bohn, 2015 COA 178, ¶ 8. 

¶ 15 We review and interpret statutes de novo. People v. 

Padilla-Lopez, 2012 CO 49, ¶ 7. When construing statutes, we aim 

to ascertain and give effect to the intent of the General Assembly. 

Id. We accord words and phrases their plain and ordinary 

meanings. Id. “Where the language is clear, it is not necessary to 

resort to other tools of statutory construction.” Goodman v. 

Heritage Builders, Inc., 2017 CO 13, ¶ 7. 

B. Applicable Law 

¶ 16 As part of “[e]very order of conviction,” a trial court must order 

a defendant to pay restitution if the defendant’s conduct caused 

pecuniary loss to a victim. § 18-1.3-603(1); People v. Reyes, 166 

P.3d 301, 302 (Colo. App. 2007). Restitution means “any pecuniary 

loss suffered by a victim . . . proximately caused by an offender’s 

conduct and that can be reasonably calculated and recompensed in 

money.” § 18-1.3-602(3)(a), C.R.S. 2016. The General Assembly 

has declared restitution to be a mechanism for rehabilitating 

offenders, deterring future criminality, and reducing the financial 

burden on and compensating victims and their families for their 
9 

losses. § 18-1.3-601(1)(c)-(g). The restitution statute must be 

liberally construed to accomplish these goals. § 18-1.3-601(2). 

¶ 17 The court bases its restitution order on information provided 

by the prosecuting attorney. § 18-1.3-603(2). The prosecution 

bears the burden of proving the amount owed by a preponderance 

of the evidence, People v. Smith, 181 P.3d 324, 328 (Colo. App. 

2007), while the defendant bears the burden of proving any setoff. 

Lassek, 122 P.3d at 1035. 

¶ 18 Compensable losses are defined in §§ 24-4.1-109(1) and (1.5), 

and include the following: 

(a) Reasonable medical and hospital expenses 

and expenses incurred for dentures, 

eyeglasses, hearing aids, or other prosthetic or 

medically necessary devices; 

(b) Loss of earnings; 

(c) Outpatient care; 

(d) Homemaker and home health services; 

(e) Burial expenses; 

(f) Loss of support to dependents; 

(g) Mental health counseling; 

(h) Household support; except that household 

support is only available to a dependent when: 
10 

(I) The offender is accused of committing the 

criminally injurious conduct that is the basis 

of the dependent’s claim under this article; 

(II) As a result of the criminal event, the 

offender vacated any home the offender shared 

with the dependent; and 

(III) The dependent provides verification of 

dependency on the offender at the time of the 

criminal event. 

(1.5)(a) Losses compensable under this part 1 

resulting from property damage include: 

(I)(A) Repair or replacement of property 

damaged as a result of a compensable crime; 

or 

(B) Payment of the deductible amount on a 

residential insurance policy; 

(II) Any modification to the victim’s residence 

that is necessary to ensure victim safety; and 

(III) The rekeying of a motor vehicle or other 

lock that is necessary to ensure the victim’s 

safety. 

Compensable losses do not include 

(a) Pain and suffering or property damage 

other than residential property damage or 

rekeying a lock pursuant to subparagraph (III) 

of paragraph (a) of subsection (1.5) of this 

section; or 

(b) Aggregate damages to the victim or to the 

dependents of a victim exceeding thirty 

thousand dollars. 
11 

§ 24-4.1-109(2). 

¶ 19 Additionally, if a crime victim compensation board provides 

assistance to a victim, “the amount of assistance provided and 

requested by the crime victim compensation board is presumed to 

be a direct result of the defendant’s criminal conduct and must be 

considered by the court in determining the amount of restitution 

ordered.” § 18-1.3-603(10)(a). The amount of assistance provided 

may be established by either (1) a list of the amount of money paid 

to each provider; or (2) a summary data reflecting what total 

payments were made for medical and dental expenses, funeral or 

burial expenses, mental health counseling, wage or support losses, 

or other expenses, if the identity or location would pose a threat to 

the safety or welfare of the victim. § 18-1.3-603(10)(b)(II). 

¶ 20 The restitution statute also furthers a second interest — that 

of avoiding double recovery. As pertinent here, a trial court may 

decrease a restitution award if the defendant has otherwise 

compensated the victim or victims for “the pecuniary losses 

suffered.”4 § 18-1.3-603(3)(b)(II). Indeed, “[a]ny amount paid to a 

 

4 The General Assembly has defined restitution as 
12 

victim under an order of restitution shall be set off against any 

amount later recovered as compensatory damages by such victim in 

any federal or state civil proceeding.” § 18-1.3-603(6); People v. 

Maxich, 971 P.2d 268, 269 (Colo. App. 1998); see also § 18-1.3-

603(8)(c)(I) (a court may not award restitution to a victim 

concerning a pecuniary loss for which the victim has received or is 

entitled to receive benefits or reimbursement under a policy of 

insurance or other indemnity agreement). 

¶ 21 When a victim receives compensation from a civil settlement 

against a defendant, the defendant may request a setoff against 

 

any pecuniary loss suffered by a victim and 

includes but is not limited to all out-of-pocket 

expenses, interest, loss of use of money, 

anticipated future expenses, rewards paid by 

victims, money advanced by law enforcement 

agencies, money advanced by a governmental 

agency for a service animal, adjustment 

expenses, and other losses or injuries 

proximately caused by an offender’s conduct 

and that can be reasonably calculated and 

recompensed in money. “Restitution” does not 

include damages for physical or mental pain 

and suffering, loss of consortium, loss of 

enjoyment of life, loss of future earnings, or 

punitive damages. 

§ 18-1.3-602(3)(a), C.R.S. 2016. 
13 

restitution “to the extent of any money actually paid to the victim 

for the same damages.” Lassek, 122 P.3d at 1034. Moreover, 

“[w]here a civil claim precedes the restitution proceeding, the court 

must first determine the total amount of the victim’s pecuniary 

damages subject to restitution and then subtract ‘any proceeds 

attributable to those damages received by the victim’ from the civil 

claim.” Id. at 1034-35 (quoting People v. Acosta, 860 P.2d 1376, 

1382 (Colo. App. 1993)). 

¶ 22 Still, for purposes of a setoff, the court cannot allocate 

proceeds from an unapportioned civil settlement agreement without 

“specific evidence that the settlement included particular categories 

of loss.” Lassek, 122 P.3d at 1035. This is so because, in civil 

cases, victims may recover both pecuniary losses covered by the 

restitution statute and other damages specifically excluded under 

the restitution statute, such as loss of future earnings and 

nonresidential property damages, as well as nonpecuniary damages 

for pain and suffering, inconvenience, or impairment of the quality 

of life. See id.; see also § 13-21-102.5, C.R.S. 2016; § 18-1.3-

602(3)(a); § 24-4.1-109(2). 
14 

¶ 23 When applying a setoff, the trial court must make specific 

findings on the apportionment of actual damages for which the 

defendant compensated the victim and set off that amount against 

any restitution ordered. T.R., 860 P.2d at 564. Thus, in the 

absence of evidence demonstrating that a civil settlement was 

intended to be allocated in a particular way, a trial court need not 

set off any amounts from that settlement against the ordered 

restitution. Lassek, 122 P.3d at 1035. 

C. Application 

¶ 24 We begin with T.R. and Lassek, which we find informative but 

distinguishable from this case. In T.R., the victim’s estate and 

surviving spouse brought a civil action against T.R. that was 

defended by T.R.’s automobile liability insurer. T.R., 860 P.2d at 

564. The parties reached a settlement for the policy limit of 

$100,000 in exchange for a waiver of any further claims against 

T.R. Id. The settlement agreement did not designate the proceeds 

as being for any particular purpose. Id. Even so, the juvenile court 

apportioned some of the settlement proceeds to expenses incurred 

by the victim’s estate as a restitution setoff. Id. A division of this 

court reversed T.R.’s convictions on unrelated grounds and 
15 

instructed that if restitution were to arise on remand, the trial court 

should “make specific findings on the apportionment of actual 

damages that the victim’s estate was compensated for under the 

civil settlement agreement and to set off that amount against any 

restitution ordered.” Id. 

¶ 25 Similarly, in Lassek, the defendant pleaded guilty to charges 

related to a fatal traffic accident. Lassek, 122 P.3d at 1031. The 

trial court ordered restitution that included costs for burial 

expenses and travel and lodging expenses incurred by the victim’s 

parents in attending the memorial service. Id. at 1034. Lassek 

sought a $50,000 setoff against restitution based on a settlement 

payment made by his automobile insurer to the victim’s family as 

part of a “Covenant Not to Execute” signed by the victim’s parents. 

Id. at 1035. But the Covenant “did not identify any particular 

losses covered by the payment.” Id. 

¶ 26 The trial court concluded it could not make a setoff because it 

could not determine the amount of the settlement proceeds which 

compensated the parents for the burial and travel expenses. Id. A 

division of this court affirmed the trial court’s order, ruling the 

settlement proceeds “unapportioned” because the Covenant did not 
16 

identify any expenses covered by the restitution order. Id. It 

further concluded that the defendant bore the burden of 

establishing apportionment. Id. 

¶ 27 In contrast to both of these cases, where the settlement 

agreements did not identify particular categories of losses, the plain 

language of the Release identifies “any and every claim, demand, 

right or cause of action . . . any and all personal injuries and 

consequences thereof . . . any loss of services . . . and any and all 

property damage resulting or to result from an accident” as 

encompassed within the settlement. (Emphasis added.) A 

settlement agreement is a contract. See H. W. Houston Constr. Co. 

v. Dist. Court, 632 P.2d 563, 565 (Colo. 1981). The primary goal of 

contract interpretation is to give effect to the intent of the 

parties. Ad Two, Inc. v. City & Cty. of Denver, 9 P.3d 373, 376 

(Colo. 2000). We discern the parties’ intent by looking to the plain 

and generally accepted meaning of the contractual 

language. Copper Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692, 

697 (Colo. 2009). The meaning of a contract is found by examining 

the entire instrument and not by viewing clauses or phrases in 

isolation. Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9. 
17 

¶ 28 We conclude, therefore, that “personal injuries and the 

consequences thereof” include both physical and emotional harm 

arising from the costs of treatment for bodily injury (here, medical 

expenses for the victim’s injuries), and also from the several types of 

nonpecuniary damages recoverable by the victim in a civil claim 

based on those physical injuries, such as pain and suffering, 

inconvenience, and emotional distress. See Lassek, 122 P.3d at 

1035. Similarly, we conclude that “loss of services” includes 

the lost wages compensated by the CVCP. For these reasons, we 

agree with the trial court that Stanley met his burden of going 

forward with evidence that the Release identified “particular losses 

covered by the [CVCP] payment.” Id. 

¶ 29 This conclusion does not end our analysis, however, because 

as argued by the prosecution, and as recognized by the division in 

Lassek, the victim “could allocate the entire settlement to 

noneconomic [i.e. noncompensable] damages.” Id. Indeed, the 

language “any and every claim, demand, right or cause of action” 

and “property damage” is broad enough to include noncompensable 

losses, such as automobile damage, and pain and suffering related 

to the victim’s physical injuries. 
18 

¶ 30 How then does a trial court give effect to § 18-1.3-603(3)(II) 

and the underlying policy of preventing double recovery expressed 

in § 18-1.3-603(6) while simultaneously giving effect to the statute’s 

policy of making the victim whole? None of our cases has answered 

this question. 

¶ 31 We are guided by a related statute from the Colorado Crime 

Victim Compensation Act (Act).5 Section 24-4.1-110 of this Act, 

titled “Recovery from collateral source,” provides as follows: 

(1) The board shall deduct from compensation 

it awards under this part 1 any payments 

received by the applicant from the offender 

or from a person on behalf of the offender, 

from the United States or any state, or any 

subdivision or agency thereof, from a 

private source, or from an emergency award 

under this part 1 for injury or death 

compensable under this part 1, excluding 

death or pension benefits. 

(2) If compensation is awarded under this part 

1 and the person receiving it also receives a 

collateral sum under subsection (1) of this 

section which has not been deducted from 

it, he shall refund to the board the lesser of 

 

5 Similar to the restitution statute, the General Assembly intended 

this Act “to provide protection and assistance to victims and 

members of the immediate families of such victims by declaring and 

implementing the rights of such persons and by lessening the 

financial burden placed upon such victims due to the commission 

of crimes.” § 24-4.1-101, C.R.S. 2016. 
19 

the sums or the amount of compensation 

paid to him under this part 1 unless the 

aggregate of both sums does not exceed his 

losses. The fund shall be the payor of last 

resort. 

(3) If a defendant is ordered to pay restitution 

under article 18.5 of title 16, C.R.S., to a 

person who has received compensation 

awarded under this part 1, an amount 

equal to the compensation awarded shall be 

transmitted from such restitution to the 

board for allocation to the fund. 

¶ 32 As relevant here, under subsection (1), if the board knows 

about a collateral payment to the victim for a compensable damage, 

it must deduct that amount before issuing its award. Subsection 

(2) requires a person compensated by the CVCP (the victim here) to 

refund the CVCP for compensation paid to that person by the 

offender or by another on behalf of the offender. That is, if the 

victim receives a “collateral sum” after the award has already been 

made by the board, then the victim must refund any duplicative 

amounts, which necessarily could only be compensable damages. 

¶ 33 In order to calculate the amount of any refund owed, a victim 

would necessarily need to determine whether the compensation he 

or she received from the defendant was used to reimburse the same 
20 

losses and expenses compensated by the CVCP and then to provide 

such information to the CVCP. Our General Assembly has deemed 

this information “confidential” under § 24-4.1-107.5, C.R.S. 2016, 

and, therefore, inaccessible to a defendant except in a narrow 

circumstance not applicable here.6 

¶ 34 Because the information needed to determine whether the 

victim has been fully compensated or has received any double 

recovery is known only by the victim, we conclude that once a 

defendant has shown that a civil settlement includes the same 

categories of losses or expenses as compensated by the CVCP and 

awarded as restitution, the defendant has met his or her burden of 

going forward, and the prosecution may then rebut the inference 

that a double recovery has occurred. The prosecution can do so by 

showing that the victim used or allocated the settlement proceeds 

for losses proximately caused by the defendant’s criminal conduct 

but which were not paid by the CVCP and covered by the restitution 

order. In sum, we affirm the trial court’s finding that Stanley met 

 

6 Under § 24-4.1-107.5(3), C.R.S. 2016, a defendant may request an 

in camera review to rebut the presumption of causation, but only 

based on a defendant’s proffer of a nonspeculative evidentiary 

hypothesis. 
21 

his burden of proving a setoff and remand for further proceedings to 

allow the prosecution to show that the victim did not receive a 

double recovery from the insurance settlement proceeds and the 

CVCP payment. The trial court should adjust the restitution order 

in accordance with that additional evidence, subject to further 

appeal by either party. 

¶ 35 Finally, because of our disposition, we need not address 

whether the CVCP properly considered the insurance settlement 

when compensating the victim for medical expenses and lost wages. 

III. Conclusion 

¶ 36 The order is affirmed and the case is remanded for further 

proceedings consistent with this opinion. 

JUDGE BOORAS concurs. 

JUDGE WEBB specially concurs. 
22 

JUDGE WEBB, specially concurring. 

¶ 37 While I agree with the majority’s disposition, I write separately 

to air the possibility of a legislative solution. 

¶ 38 On the one hand, a trial court may decrease a restitution 

award if a defendant has otherwise compensated a victim for the 

“pecuniary losses suffered.” § 18-1.3-603(3)(b)(II), C.R.S. 2016. 

But on the other, this phrase does not restrict the decrease based 

on overlap between that compensation and either losses 

compensable under the restitution statute or any specific item in 

the restitution award. Indeed, while section 18-1.3-603(6) applies 

to a setoff against a post-restitution civil judgment rather than 

against a restitution award, it too does not require any overlap 

between the items covered by a restitution award and the items 

“recovered as compensatory damages.” The breadth of the latter 

section could have significant consequences if the civil judgment 

included only noneconomic losses, such as pain and suffering, for 

which the restitution award could not have compensated the victim. 

¶ 39 At the restitution hearing in this case, the trial court found, 

“You’ll never see a release that says X number of dollars goes to 

paying the Kaiser bill and X number of dollars goes to paying Auto 
23 

Nation for repairs nor will you see this is earmarked for or 

designated for medical expenses.” This finding raises the dilemma 

that, in many cases, the defendant may be unable to meet even the 

burden imposed by the majority. 

¶ 40 True, the majority avoids this dilemma by focusing on 

language in the Release that corresponds to the two categories of 

loss identified by the victim compensation board. But that solution 

may be unavailable in many cases, just as it was unavailable in 

Lassek. And even here, the question is close because while the 

release expressly addresses “services,” it is silent as to “medical 

expenses.”1

¶ 41 To avoid further uncertainty, the General Assembly may wish 

to consider amending section 18-1.3-603(3)(b)(II) to clarify exactly 

what must be proven, and by whom, to invoke the trial court’s 

discretion to order a setoff under section 18-1.3-603(3), where a 

civil settlement predates a restitution hearing. 

 

1 This dilemma may be unique to settlements, because if a victim 

recovers a civil judgment, the jury may have apportioned damages 

among categories such as economic and noneconomic loss.