                                                                                             February 24 2015

                                           DA 13-0775
                                                                                           Case Number: DA 13-0775
                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2015 MT 56



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

CYNTHIA MAE HENDERSON,

              Defendant and Appellant.


APPEAL FROM:            District Court of the First Judicial District,
                        In and For the County of Lewis and Clark, Cause No. ADC 2012-122
                        Honorable Mike Menahan, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Kirsten H. Pabst, Attorney at Law, Missoula, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General, Tammy K Plubell, Assistant
                        Attorney General, Helena, Montana

                        Leo J. Gallagher, Lewis and Clark County Attorney, Helena, Montana

                        Mike Winsor, Special Deputy Lewis and Clark County Attorney, Office of
                        the Commissioner of Securities and Insurance, Montana State Auditor,
                        Helena, Montana



                                                    Submitted on Briefs: November 19, 2014
                                                               Decided: February 24, 2015


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia Cotter delivered the Opinion of the Court.

¶1     In May 2013, Cynthia Henderson entered a guilty plea to felony insurance fraud

and theft. In September 2013, the First Judicial District Court, Lewis and Clark County,

ordered her to pay restitution in the amount of $22,602.24 to Fire Insurance Exchange.

She appealed. We affirm.

                                          ISSUE

¶2     Did the District Court err when it ordered Henderson to pay restitution to Fire

Insurance Exchange?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶3     From August 2000 through January 8, 2008, Fire Insurance Exchange (FIE)

insured Henderson’s home in Clancy, Montana, against various perils including theft and

vandalism. In 2005, Henderson moved from the home and relocated out of state. She

left many personal items behind in the home. On May 1, 2007, Henderson contacted FIE

to initiate a claim under her homeowner’s policy. She asserted that family members had

notified her that her home had been broken into and robbed on two separate occasions.

These invasions were discovered on October 21, 2006, and April 23, 2007. The earlier

robbery was reported to and investigated by the Jefferson County Sheriff’s Department

but the Sheriff’s Department did not generate a criminal report or develop a suspect. The

second robbery was not reported.

¶4     In 2008, a suspect in possession of some of the stolen property was arrested, and

FIE therefore concluded that Henderson was a reliable witness. FIE paid Henderson

$22,602.24, representing property damage and actual cash value for the items Henderson


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claimed were stolen from the home. FIE retained a reservation of rights under the policy,

one such reservation being a provision that voided the entire policy in the event

Henderson knowingly concealed or misrepresented any material fact pertaining to the

claim.

¶5       Under Henderson’s policy, she was entitled to submit an additional claim for the

replacement cost of items stolen. On June 26, 2009, Henderson submitted a supplemental

claim in the amount of $23,102.72 for personal property she asserted she had replaced.

She provided numerous receipts to substantiate her replacement claims. FIE found the

receipts to be suspicious and upon investigation concluded they were fraudulent. It

denied the supplemental claim and made a referral for criminal charges.

¶6       Henderson was charged by information on May 2, 2012, with felony insurance

fraud and theft. The State demanded that Henderson repay to FIE, as restitution, the

$22,602.24 the insurer had paid to Henderson on her initial claim. Henderson challenged

the insurer’s right to repayment of the initial claim, arguing it was not a fraudulent claim;

however, she ultimately entered into a guilty plea attesting:

         That from on or about May 1, 2007, until on or about June 25, 2009,
         [Henderson] purposely and knowingly made false or misleading statement
         [sic] and presented a false receipt to my insurance company in support of
         my insurance depreciation claim for the purpose of obtaining money.

¶7       The District Court entered judgment on September 27, 2013, sentencing

Henderson to six years, deferred, and imposing various surcharges, costs and conditions.

The court also required Henderson to pay restitution to FIE in the amount of $22,602.24.

¶8       Henderson filed a timely appeal with respect to the restitution obligation.



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                               STANDARD OF REVIEW

¶9     The District Court’s imposition of restitution was based upon the court’s

interpretation of § 46-18-241, MCA.       We review a court’s conclusions of law and

interpretation of statutes de novo for correctness. State v. Petersen, 2011 MT 22, ¶ 8, 359

Mont. 200, 247 P.3d 731.

                                      DISCUSSION

¶10     Did the District Court err when it ordered Henderson to pay restitution to Fire
        Insurance Exchange?

¶11    Henderson argues that FIE is not entitled to restitution for the claims paid under

the policy because the initial claim was legitimate. She asserts that because FIE sought

criminal charges for her fraudulent claim for replacement value, and actually never paid

any sums for replacement value, the insurer has not sustained a pecuniary loss as a result

of her criminal conduct.

¶12    The State counters that the “Fraud and Concealment” policy provision establishes

that any fraudulent conduct on the part of the policy holder, either before or after a claim

has been submitted, voids the policy. Consequently, Henderson’s subsequent fraudulent

replacement value claim voided her policy and the insurer suffered a pecuniary loss in the

amount of her initial claim—$22,602.24.

¶13    We review a district court’s imposition of a criminal sentence to determine if the

sentence is statutorily authorized. State v. Thorpe, 2015 MT 14, ¶ 7, 378 Mont. 62, ___

P.3d ____. Section 46, chapter 18, MCA, directs a district court to order a defendant to

pay restitution to a victim who has suffered a pecuniary loss. Sections 46-18-201(5),

-241(1), MCA. We have previously interpreted the definition of pecuniary loss to require

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a “causal relation” between the defendant’s criminal conduct and the loss. Thorpe, ¶ 7

(citations omitted). Restitution may be imposed for losses caused by the facts or events

constituting “offenses to which the accused (1) has admitted, (2) has been found guilty, or

(3) has agreed to pay restitution.” Thorpe, ¶ 7. Here, in pleading guilty, Henderson

undisputedly attested to making false claims between May 1, 2007, and June 25, 2009.

In that Henderson submitted her fraudulent replacement value claim on June 26, 2009,

the time period specified in her plea clearly encompassed the timing of her initial

insurance claims. As a result, Henderson “has admitted” to a criminal offense that

resulted in a pecuniary loss to victim FIE and for which the District Court was statutorily

authorized to impose an obligation of restitution.

                                     CONCLUSION

¶14    For the foregoing reasons, we affirm the District Court’s order requiring

Henderson to pay restitution to Fire Insurance Exchange.


                                                 /S/ PATRICIA COTTER

We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ JIM RICE




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