Opinion
Case No.: 1601002372
12-01-2016
RE: State of Delaware v. James E. Taulbee
Susan Schmidhauser, Esq. Deputy Attorney General Department of Justice 102 West Water Street Dover, DE 19901 Caitlin Gregory, Esq. Assistant Public Defender Office of the Public Defender Sykes Building 45 The Green Dover, DE 19901
Susan Schmidhauser, Esq.
Deputy Attorney General
Department of Justice
102 West Water Street
Dover, DE 19901 Caitlin Gregory, Esq.
Assistant Public Defender
Office of the Public Defender
Sykes Building
45 The Green
Dover, DE 19901 Cr. A. No.: 16-01-0561 (Theft < $1500) Decision After Restitution Hearing Dear Ms. Schmidhauser and Ms. Gregory:
The defendant for the above-referenced matter, James Taulbee, pled guilty to one count of Theft < $1500 on July 25, 2016. A condition of the sentencing order was that the defendant pay restitution as determined by the Court of Common Pleas Investigative Services Unit. Special language on the Court's sentencing order permitted the defendant the right to contest the determination of restitution. The Court of Common Pleas Investigative Services Unit determined that the victim of the defendant's theft, Robert Ball, was entitled to $500.00 in restitution to cover his insurance deductible for a stolen air compressor. The defendant contends that he should not be required to pay the insurance deductible as he returned the air compressor to the victim in its original condition. The Court held a restitution hearing for this matter. This correspondence constitutes the Court's decision after the restitution hearing.
When seeking restitution, the State bears the burden of proving the amount of loss by a preponderance of the evidence. Benton v. State, 711 A.2d 792 (Del. 1998). After a careful consideration of the evidence provided at the restitution hearing for this matter and an analysis of relevant law, the Court finds that the State has failed to prove that the victim has incurred any loss as a result of the defendant's theft. In fact, he has experienced a financial gain as a result of the theft. Therefore, the State's request for the award of restitution is denied.
In the present case, the defendant pled guilty to stealing an air compressor from the victim. When the air compressor was stolen, the victim filed an insurance claim and received reimbursement for the air compressor, less his $500.00 insurance deductible. The victim purchased a new air compressor once he received the insurance proceeds.
Next, the defendant returned the stolen air compressor. However, it was damaged and needed repairs totaling $200.00. In the end, however, the victim found himself in ownership of two working air compressors, each worth over $3,000.00.
It is the State's contention that the victim is still entitled to the $500.00 out of pocket loss that he sustained for the insurance deductible when he bought the new air compressor. The defendant contends that he should not have to pay any restitution to the victim as the victim ended up with two air compressors worth over $3,000.00, for the total cost of $500.00, the insurance deductible. Therefore, in total, he obtained a gain as a result of the theft and is not entitled to any restitution.
In general, the awarding of restitution in a criminal case is governed by 11 Del. C. § 4106, which provides, in pertinent part, as follows:
(a) Any person convicted of stealing ... property, shall be liable to each victim of the offense for the value of the property or property rights lost to the victim and for the value of any property which has diminished in worth as a result of the actions of such convicted offender and shall be ordered by the court to make restitution.
As best as this Court can determine, the issue of mitigation of damages in the context of restitution for criminal activity is a question of first impression in this state. Since the statutes requiring restitution in a criminal sentencing are based upon damages available in a "civil action," we look to our precedent in the fields of tort and contract law. Under the common law of contracts, the measure of damages has always been tempered by the rule requiring the injured party to minimize, that is, mitigate, the losses, although the party causing the breach must pay for the cost of mitigation. However, the duty to mitigate is subject to the rule of reasonableness under the circumstances. Mitigation requires reasonable action under the circumstances so as not to unduly enhance the damages caused by the breach. If the court decides the nondefaulting party has made reasonable efforts to minimize the damages, the award will not be limited by the doctrine of avoidable consequences.
Katz v. Exclusive Auto Leasing, Inc., 282 A.2d 866, 868 (Del. Super. 1971).
See, e.g., American General v. Continental Airlines, 622 A.2d 1, 11 (Del. Ch. 1992).
See Hanner v. Rice, 2000 WL 303458 (Del. Super. Jan. 3, 2000).
See Id. --------
In this case, the victim has not attempted to minimize his damages in the slightest. In fact, he has gained more than he originally lost. The victim not only recovered his original air compressor, albeit slightly damaged, but he also purchased a brand new air compressor with insurance proceeds that he recovered as a result of the defendant's theft. Now the victim seeks to recover $500.00 in restitution for his insurance deductible. Such recovery is not justifiable. Any victim seeking restitution as a result of a crime must attempt to mitigate their loss. Under the circumstances, the victim for this matter could easily sell one of the air compressors, resulting in him keeping one operational air compressor and recovering significantly more than what he claims he is owed. Therefore, it is the decision of this Court that the victim is not entitled to an award of any restitution as he has failed to mitigate his damages.
IT IS SO ORDERED.
Sincerely,
/s/
Charles W. Welch, III CWW:mek