                IN THE SUPREME COURT OF IOWA
                              No. 15–1758

                        Filed December 9, 2016


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.
                                     3

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 victim

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
                                    5

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
                                    6

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.
                                     7

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.
