                IN THE SUPREME COURT OF IOWA
                                No. 12–1636

                        Filed November 1, 2013


STATE OF IOWA,

      Appellee,

vs.

COREY DOUGLAS DRISCOLL,

      Appellant.


      Appeal from the Iowa District Court for Jackson County, Paul L.

Macek, Judge.



      A criminal defendant appeals the denial of his application for an

order satisfying restitution.     REVERSED AND REMANDED WITH

INSTRUCTIONS.



      Joshua J. Reicks and Steven J. Kahler of Schoenthaler, Bartelt,

Kahler & Reicks, Maquoketa, for appellant.


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

Attorney General, Christopher M. Raker, County Attorney, and Sara D.

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

      In this case, we consider whether amounts paid by an offender

pursuant to settlement agreements in civil wrongful-death actions prior

to the offender’s criminal conviction and sentencing should be set off

against restitution orders entered as a result of the criminal convictions.

The district court held that the amounts paid by the tortfeasor should

not be set off against the subsequent restitution order. We conclude the

criminal defendant is entitled to set off the amounts paid to settle the

civil claims. We therefore reverse and remand the case to the district

court with instructions.

      I. Factual and Procedural Background.

      On August 14, 1999, Corey Driscoll was the driver in a single-

vehicle accident that resulted in the deaths of Mark Empen and Lindsay

Gibbs. On September 24, the State charged Driscoll with two counts of

homicide by vehicle as a result of the accident.

      On April 26, 2000, prior to the resolution of his criminal

proceeding, Driscoll entered into a civil-settlement agreement with the

Estate of Mark Empen pursuant to which Driscoll agreed to pay

$130,000 in exchange for a release of claims resulting from the accident.

The release stated Empen’s estate

      do[es] hereby release, acquit and forever discharge Corey
      Driscoll of and from any and all actions, causes of action,
      claims, demands, costs, loss of services, loss of consortium,
      expenses and compensation, on account of, or in any way
      growing out of, any and all known and unknown personal
      injuries and property damage resulting or to result from an
      accident that occurred on or about the 14th day of August,
      1999, at or near Bellevue, Iowa.

The beneficiaries of Empen’s estate consented to the settlement.       The

district court approved the settlement and authorized the execution of

the release.
                                             3

        On May 8, Driscoll entered into a somewhat different settlement

with the Estate of Lindsay Anne Gibbs.                This release provided that in

exchange for Driscoll’s payment of $165,000, Gibbs’s estate and her

heirs

        do hereby forever release, acquit, and discharge, Corey
        Driscoll, his heirs, successors, and assigns, and Farm
        Bureau Mutual Insurance Company, and its agents and
        representatives, from all claims of every type and description
        which in any way arise out of or are related to an incident
        which occurred on or about August 14, 1999 . . . .

As with the Empen settlement, the district court approved the Gibbs

settlement.

        On August 25, Driscoll entered a guilty plea to both counts of

homicide by vehicle.           The district court sentenced Driscoll to an

indeterminate term of incarceration not to exceed ten years on each

count and ordered the sentences be served concurrently.                      The district

court also ordered Driscoll “to pay restitution to the families of the

victims in the amount of $150,000.00 on each count” and to pay fines,

penalties, and surcharges in the amount of $2600. In January 2001, the

department of corrections filed a restitution plan that increased the total

amount due by $210.85 for additional fines, penalties, and surcharges.

        In early July 2003, the department of corrections informed county

law enforcement officials that Driscoll would be released on parole in the

near future.       On October 16, Driscoll signed a restitution plan of

payment setting forth the restitution due as $301,638.79.1

        On April 13, 2004, the district court entered an order finding

Driscoll was unable to pay the $2810.85 due for court costs and fees.


        1This amount reflected the original court-ordered payments, the $210.85
additional court costs, and later-added sheriff’s fees less the total restitution paid as of
October 16, 2003.
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The district court ordered Driscoll to satisfy this obligation through

community service.    This order did not mention the $300,000 due for

victim restitution. Driscoll’s probation officer informed the district court

on April 6, 2005, that Driscoll had fulfilled the required community

service hours.

      On June 26, 2012, Driscoll applied to the district court for an

order stating he had satisfied his restitution obligation. Driscoll argued

that under Iowa Code section 910.8 and this court’s decision in State v.

Klawonn, 688 N.W.2d 271 (Iowa 2004), the settlement amounts paid to

the estates of Empen and Gibbs should be set off against the restitution

amounts ordered to be paid to the families by the district court.

      The State resisted the application. The State asserted Klawonn did

not provide for the setoff claimed by Driscoll under section 910.8

because Driscoll settled the civil suits before the district court ordered

him at sentencing to pay restitution.

      Following a hearing, the district court denied Driscoll’s application.

The district court reasoned that the settlements were not the result of a

civil action, occurred prior to the criminal sentencing, and thus could not

be the basis of a setoff against the restitution order. The district court

further reasoned that if the application were granted, Driscoll would not

receive the rehabilitative or punitive effects of restitution if his

automobile insurance carrier paid part or all of his restitution

obligations.

      Driscoll appeals.

      II. Scope of Review.

      We review a restitution order for correction of errors at law.

Klawonn, 688 N.W.2d at 274; State v. Watts, 587 N.W.2d 750, 751 (Iowa

1998).   In doing so, “ ‘we determine whether the court’s findings lack
                                    5

substantial evidentiary support, or whether the court has not properly

applied the law.’ ”     Klawonn, 688 N.W.2d at 274 (quoting State v.

Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001)).

      III. Discussion.

      Iowa Code section 910.8 (2011) provides in relevant part that “any

restitution payment by the offender to a victim shall be set off against

any judgment in favor of the victim in a civil action arising out of the

same facts or event.”    Driscoll concedes his settlement payments were

not pursuant to judgments entered in the civil actions.       Nonetheless,

Driscoll claims he is entitled to a setoff under section 910.8 in light of

Klawonn.

      In Klawonn, we considered whether a criminal defendant was

entitled to have the amount of a statutorily-mandated, court-ordered

restitution payment set off by the amount of a civil settlement that

occurred subsequent to the initial restitution order. 688 N.W.2d at 273–

74. Because the civil action did not result in the entry of a judgment, the

central issue was whether section 910.8 permitted a setoff where there

was a civil settlement, but no entry of judgment against the defendant.

Id. at 274.   We concluded a judgment was not required because the

purpose of section 910.8 was to coordinate a criminal-restitution

payment with a civil-damage award to prevent the victim from receiving a

windfall in the form of the restitution award.             Id. at 275–76.

Notwithstanding the literal language of the statute, we concluded the

legislature did not intend for a setoff to run on the technicality of

whether a judgment was entered.         Id. at 276.   We further noted the

settlement “was equivalent to a final judgment in the civil action”

because the settlement covered all civil damages that could have been
                                        6

recovered absent the parties’ express reservation of certain claims or

damages. Id. at 275.

      The State counters that Klawonn is distinguishable because it

dealt with a civil settlement that occurred after the restitution order had

been entered in the criminal case. The State maintains that where the

civil-settlement amounts are paid prior to criminal sentencing, the

defendant must advise the district court of the settlements. Further, the

State argues that to wait twelve years and raise the issue of a setoff is

improper and prejudicial to the victims’ estates.

      We find Driscoll has the better argument. Klawonn makes clear

the purpose of the statute is to coordinate civil recoveries with criminal

restitution to avoid double recovery. Id. at 275. The statutory purpose of

coordinating   civil   damages   with       criminal-restitution   payments   as

declared in Klawonn does not turn on the timing of the civil-settlement

and criminal-restitution orders.

      As in Klawonn, the release language in the Gibbs and Empen

settlement documents unambiguously show a desire to release all claims

against Driscoll related to the accident. See id. at 272, 275 (holding a

release containing substantively similar language to the releases at issue

here was a total release); see also Mensing v. Sturgeon, 250 Iowa 918,

920, 922, 97 N.W.2d 145, 146–47 (1959) (holding a release containing

language nearly identical to the Empen release barred a future action by

the releasee against the releasor for damages arising from the same

motor vehicle accident).     Although the language in each release is

different, they are broad-form releases commonly used in civil litigation.

In neither release did the estates of the deceased reserve any rights

against Driscoll arising out of the accident. See Klawonn, 688 N.W.2d at

275 (noting the victim’s widow and estate could have preserved their
                                     7

rights to receive restitution payments as additional consideration for the

release); see also In re Marriage of McNerney, 417 N.W.2d 205, 208 (Iowa

1987) (observing a “personal injury award is generally composed of three

potential elements: (1) those compensating the injured spouse for pain

and suffering, disability, disfigurement, or loss of limb; (2) those

compensating for lost wages, lost earning capacity, and medical and

hospital expenses; and (3) those compensating the noninjured spouse for

loss of services or loss of consortium”). Under Klawonn, what matters is

not whether the parties specifically intended to release a potential

restitution claim, but whether the parties intended to settle the matter in

a fashion with the same legal consequence as a preclusive civil judgment.

Id.; see also Mensing, 250 Iowa at 928, 97 N.W.2d at 150 (noting the

primary question in determining the preclusive effect of a release is what

the parties intended to accomplish by their settlement). As a result, we

conclude Driscoll is entitled to a setoff for the settlement payments made

to each estate.

      The State also suggests the delay in asserting the setoff gives rise

to a laches defense. The laches argument was not presented to or ruled

upon by the district court. As a result, the issue has not been preserved

on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It

is a fundamental doctrine of appellate review that issues must ordinarily

be both raised and decided by the district court before we will decide

them on appeal.”).

      As a result of the above analysis, we conclude Driscoll’s restitution

obligation to the Gibbs estate has been satisfied.           His $150,000

restitution obligation is extinguished when the settlement amount of

$165,000 is set off against it. He is entitled to an order of satisfaction of

his restitution obligation as to the Gibbs estate.
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      However, we cannot at this time conclude Driscoll’s obligation to

the Empen estate has been satisfied.         After setting off the $130,000

settlement against his $150,000 restitution obligation, a balance of

$20,000 remains.        Although it appears Driscoll has made some

restitution payments to the Empen estate, the record does not clearly

reveal the total amount of these payments. As a result, on remand the

district court must determine the total amount of payments Driscoll has

made to Empen’s estate beyond the amount of the settlement.               The

district court shall order Driscoll to pay Empen’s estate any outstanding

balance due after setting off the $130,000 settlement amount against the

$150,000    court-ordered    restitution   amount     and   subtracting   any

restitution payments Driscoll has already made. If no balance remains,

Driscoll is entitled to an order declaring his restitution satisfied.

      IV. Conclusion.

      For the above reasons, we conclude Driscoll is entitled to an order

declaring restitution satisfied with respect to the Gibbs estate and

reverse the district court with respect to that matter. With respect to the

Empen estate, we reverse the district court and remand for further

proceedings to determine any additional amount Driscoll owes under the

restitution order after setting off the settlement amount and subtracting

any restitution payments already made.        The district court shall order

Driscoll to pay any outstanding amount due and owing under the

restitution order.

      REVERSED AND REMANDED WITH INSTRUCTIONS.
