IN THE SUPREME COURT OF IOWA

No. 15–1758

Filed December 9, 2016

Amended February 16, 2017

STATE OF IOWA,

Appellee,

vs.

ROBERT LIONEL DUBOIS,

Appellant.

Appeal from the Iowa District Court for Marion County, Martha 

Mertz, Judge.

Defendant appeals from district court’s restitution order. 

AFFIRMED.

Mathew D. Zinkula of Booth Law Firm, Osceola, for appellant.

Thomas J. Miller, Attorney General, Martha E. Trout, Assistant 

Attorney General, Edward W. Bull, County Attorney, and Jared C. 

Harmon, Assistant County Attorney, for appellee.
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APPEL, Justice.

In this case, we consider the relationship between restitution in a 

criminal case under Iowa Code section 910.3 (2014) and the possible 

availability of insurance coverage of the loss. A district court ordered 

restitution in the full amount of loss without a deduction for potential 

insurance coverage. The defendant maintains that restitution should be 

limited to the amount of the insurance deductible and any other costs 

not covered by insurance. For the reasons expressed below, we affirm 

the restitution order of the district court.

I. Facts and Background Proceedings.

Lisa and Robert Dubois divorced in 2008. In September of 2014, 

their teenage son had been living with Lisa but decided he wanted to live 

with his father. Robert picked him up from Lisa’s residence on 

September 10. The teenager, however, left many of his belongings at his 

mother’s house.

The next day, Robert drove his son back to the residence to retrieve 

his belongings, but Lisa was not home and the door was locked. The 

teen entered the home through a second-story window. In addition to 

taking his belongings, the teen took savings bonds, stereo equipment, 

tire ramps, and a leaf blower with his father’s permission. When Lisa 

returned to the home, she saw that her stereo receiver and speakers were 

missing along with several pieces of jewelry, a necklace with a locket, 

diamond earrings, and a tennis bracelet.

Lisa called 911 and reported the break-in. Robert admitted he was 

present when some of the items were removed from the house. He 

eventually returned the ramps, the leaf blower, and the stereo speakers 

but did not return the receiver because he claimed to have paid for it. 
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Robert asserted he knew nothing about the jewelry or missing savings 

bonds.

The State charged Robert with burglary in the third degree. The 

defendant entered a guilty plea to theft in the third degree. The district 

court sentenced Dubois to a two-year prison term, suspended the 

sentence, and placed him on probation for a year.

The district court also entered an order of restitution. The order 

provided that Robert pay $2950 in restitution to Lisa. The defendant 

objected and the district court set the matter for hearing. At the hearing, 

Lisa stated she had an insurance policy in place that had a deductible in 

the amount of $1000. She stated that she had not filed a claim with her 

insurance company for the stolen items. After the hearing, the district 

court ordered the defendant to pay $2001 in restitution.

Robert appeals. On appeal, he claims that the restitution award 

should be limited to reflect only losses not covered by insurance.

II. Standard of Review.

We review restitution orders for corrections of errors at law. State 

v. Jenkins, 788 N.W.2d 640, 642 (Iowa 2010).

III. Discussion.

In this appeal, the fighting issue is whether the district court 

should have limited the restitution award to reflect only losses not 

covered by insurance.

We begin by examining the law of restitution. Restitution is a 

creature of statute. State v. Hagen, 840 N.W.2d 140, 149 (Iowa 2013). 

The framework for statutory restitution is provided in Iowa Code chapter 

910. Under the statute, “restitution” means “payments of pecuniary 

damages to a victim in an amount and in the manner provided by the 

offender’s plan of restitution.” Iowa Code § 910.1(4).
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Of particular importance to us in this case, the legislature has 

provided that “pecuniary damages” means “all damages to the extent not 

paid by an insurer, which a victim could recover against the offender in a 

civil action arising out of the same facts or event.” Id. § 910.1(3). The 

statutory language at the heart of this dispute is the meaning of the 

phrase “to the extent not paid by an insurer” in Iowa Code section 

910.1(3).

Robert maintains that this phrase can reasonably be read as 

referring to instances in which the victim has no applicable insurance 

policy in place which covers the loss for which he or she is seeking 

compensation in the restitution action. According to Robert, it does not 

matter whether an insurance claim has actually been filed or paid at the 

time of the restitution hearing. Robert argues that the phrase “not paid 

by an insurer” is a reference to amounts that the victim’s insurance 

policy does not or would not cover.

Robert claims his interpretation of the statute is consistent with 

the primary purpose of restitution orders, which is to make the victim 

whole. See State v. Ihde, 532 N.W.2d 827, 829 (Iowa Ct. App. 1995). He 

suggests that if the statute receives the interpretation advanced by the 

State, the crime victim may receive a windfall payment from the offender

and payment from the victim’s insurer. Robert argues that the statute 

was not designed to allow such double recovery.

The State focuses on the language of Iowa Code section 910.1(3), 

which provides that pecuniary damage recoverable by a victim includes 

“all damages to the extent not paid by an insurer, which a victim could 

recover against the offender in a civil action arising out of the same facts 

or event.” The State notes that the statutory language does not require a 

victim seeking pecuniary damages from an offender to file a claim with 
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her own insurance plan before restitution is ordered. According to the 

State, a victim with insurance has an option of seeking restitution from a 

defendant before he or she pursues other options, including potential 

insurance recovery.

The parties have found only one case from another jurisdiction of 

relevance to the issues here. In People v. Nystrom, a victim declined to 

make a coverage claim with an insurer on the ground that the property 

damage was less than $3000 and the event would have been his third 

accident of the year, thereby risking a loss of his insurance policy. 10 

Cal. Rptr. 2d 94, 97 (Ct. App. 1992). Under the statute in question, the 

victim was entitled to recover pecuniary loss for “expenses for which the 

victim has not and will not be reimbursed from any other source.” Id.

(quoting Cal. Gov’t Code § 13960(d)). The offender argued that because 

the victim had insurance coverage, he should not be required to pay 

restitution. Id.

The California appellate court disagreed. Id. at 97–98. According 

to the Nystrom court, the statute did not impose an affirmative duty on 

the victim to pursue all possible sources of reimbursement before 

claiming restitution. Id. at 97. The Nystrom court pointed out that in 

this case, the victim testified that he would not file a claim for the 

reasons cited above. Id. The Nystrom court emphasized that from the 

perspective of the defendant, the fact that the victim had insurance was 

purely fortuitous and should not entitle the defendant to benefit. Id.

Although the language of the statute involved in Nystrom is 

somewhat different than the Iowa restitution statute, we think the 

reasoning in Nystrom is persuasive. There is nothing in Iowa Code 

section 910.1(3) that requires a victim to seek insurance coverage for 

pecuniary damage. The statute simply provides that a victim is entitled 
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to restitution of all damages not paid by an insurer. According to 

ordinary usage, the term “all damages to the extent not paid by an 

insurer” means all amounts not actually paid. It does not mean amounts 

that might be paid, could be paid, will be paid, or even should be paid by 

the insurer.

No doubt, the legislature could have taken a different approach to 

the question of the role of insurance in determining restitution amounts. 

See generally George Blum, Annotation, Measure and Elements of 

Restitution to Which Victim Is Entitled Under State Criminal Statute, 15 

A.L.R. 5th 391 (1993 & Supp. 2016) (presenting a kaleidoscope of 

restitution cases, including those involving insurance proceeds). But the 

legislature in Iowa did not limit restitution to “amounts not covered” by 

insurance. We are not in the business of rewriting express statutory 

terms. See Teggatz v. Ringleb, 610 N.W.2d 527, 530 (Iowa 2000).

We should note that our interpretation does not produce absurd 

results. Whether or not certain losses are “covered” by an insurance 

policy can often be contested and can lead to protracted disputes. 

Whether or not a loss has been paid at the time of a restitution hearing, 

however, is a simple yes or no question. Thus, the interpretation offered 

by Robert, in addition to running counter to the express language of the 

statute, would present workability issues.

At the same time, we recognize the power in Robert’s general 

argument against double recovery. Under Iowa Code section 910.7(1), an 

offender during the period of probation, parole, or incarceration may 

petition the court on any matter related to the plan of restitution or plan 

of payment. In State v. Klawonn, the offender filed a motion to modify a 

restitution order in a vehicular homicide case when his insurer paid the 

estate of the decedent $275,000 after the restitution order was entered. 
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688 N.W.2d 271, 273 (Iowa 2004). We held that the offender was entitled 

to a reduction to the restitution in order to avoid a windfall to the estate. 

Id. at 275–76; see also State v. Driscoll, 839 N.W.2d 188, 192 (Iowa 2013)

(adjusting the restitution award in a vehicular homicide case when estate 

received settlement amount prior to entry of restitution order).

But we do not face a double recovery situation today, and there is 

nothing in the record to suggest that future insurance payments for 

Lisa’s loss will be forthcoming. At present, Lisa is entitled to seek full 

restitution from Robert for pecuniary damages “not paid” by her insurer. 

She is under no obligation to act for Robert’s benefit by seeking coverage 

for her losses. We need not engage in extended speculation about future 

insurance payment. If, however, Lisa actually receives insurance 

payments related to her loss, the offender would be entitled to seek 

adjustment of the restitution order under Iowa Code section 910.7. See

Driscoll, 839 N.W.2d at 192; Klawonn, 688 N.W.2d at 276.

IV. Conclusion.

For the above reasons, we conclude that the district court 

restitution order in this case must be affirmed.

AFFIRMED.