COLORADO COURT OF APPEALS                                      2017COA121


Court of Appeals No. 16CA1612
Adams County District Court No. 15CR1433
Honorable Robert W. Kiesnowski, Jr., Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Steven Robert Paul Stanley,

Defendant-Appellee.


                        ORDER AFFIRMED AND CASE
                       REMANDED WITH DIRECTIONS

                                  Division III
                          Opinion by JUDGE FREYRE
                              Booras, J., concurs
                          Webb, J., specially concurs

                        Announced September 7, 2017


David J. Young, District Attorney, Cameron M. Munier, Senior Deputy District
Attorney, Brighton, Colorado, for Plaintiff-Appellant

Bendinelli Law Firm, PC, Mark G. Mayberry, Westminster, Colorado, for
Defendant-Appellee
¶1    In this prosecution appeal of a restitution setoff, we must

 reconcile the dual policy interests underlying the restitution statute,

 § 18-1.3-603, C.R.S. 2016, of fully compensating a victim on the

 one hand and of precluding double recovery by the victim on the

 other.

¶2    The prosecution asks us to reverse the trial court’s order

 awarding the defendant, Steven Robert Paul Stanley, a $25,000

 setoff against restitution of $30,000, an amount paid to the victim

 by the Crime Victim Compensation Program (CVCP). The setoff

 arose from a policy-limits settlement between the victim and

 Stanley’s automobile insurance company. Despite uncontroverted

 evidence of this settlement, the prosecution argues that Stanley

 failed to sufficiently prove entitlement to a setoff because he did not

 show that the settlement proceeds were “earmarked” for the same

 expenses reimbursed by the CVCP, leaving open the possibility that

 the victim used the proceeds for losses not compensated by the

 CVCP.

¶3    Because the level of specificity for apportioning urged by the

 prosecution would render meeting a defendant’s burden of proving

 a setoff under § 18-1.3-603(3) and (8)(c)(I) impractical — and in

                                    1
 some cases impossible — we conclude that a defendant sufficiently

 meets his or her burden of going forward to invoke the trial court’s

 discretion to award a setoff by showing that the settlement

 included one or more categories of loss (expenses) paid by the CVCP

 and covered by the restitution order.

¶4    Thus, we affirm in part the trial court’s ruling on

 apportionment. However, because the victim may have used some

 or all of the settlement proceeds for losses not compensated by the

 CVCP, we remand the case to permit the prosecution to respond by

 showing that the victim used or allocated settlement proceeds for

 losses proximately caused by Stanley’s criminal conduct but which

 were not paid by the CVCP and covered by the restitution order.

 This procedure gives effect to the restitution statute’s legislative

 intent “to make full restitution” to victims for their losses. § 18-1.3-

 601(1)(b), C.R.S. 2016. If the prosecution makes such a showing,

 the trial court should amend its restitution order by reducing the

 amount of the setoff.

                     I.     The Restitution Order

¶5    This case arises from a traffic accident that occurred on April

 11, 2015. On May 7, 2015, Stanley’s automobile insurer, Geico

                                    2
 Indemnity Co. (Geico), entered into a “Release in Full of All Claims”

 (the Release) with the victim and her husband. Under the

 settlement, Geico paid the victim $25,000 for all claims related to

 and stemming from the accident in exchange for a full and final

 release of all claims against Stanley and Geico. The Release

 released and forever discharged Stanley and Geico

           [f]rom any and every claim, demand, right or
           cause of action, of whatever kind or nature, on
           account of or in any way growing out of any
           and all personal injuries and consequences
           thereof, including, but not limited to, all
           causes of action preserved by the wrongful
           death statute applicable, any loss of services
           and consortium, any injuries which may exist
           but which at this time are unknown and
           unanticipated and which may develop at some
           time in the future, all unforeseen
           developments arising from known injuries, and
           any and all property damage resulting or to
           result from an accident that occurred on or
           about the 11th day of April, 2015 . . . .

¶6    On February 4, 2016, Stanley pleaded guilty to felony

 vehicular assault, driving under the influence, and careless driving.

 Under the plea agreement, the trial court deferred the entry of

 judgment and sentence on the felony for four years, and sentenced

 Stanley to four years of concurrent probation on the misdemeanor



                                   3
 convictions. The court gave the prosecution ninety days to submit

 a restitution request.

¶7    On May 3, 2016, the prosecution filed a motion to impose

 restitution and attached a report from the CVCP. It showed that

 the CVCP had paid the victim $30,000, the maximum amount

 allowable by statute, for pecuniary losses proximately caused by

 Stanley’s criminal conduct. See § 24-4.1-109(2)(b), C.R.S. 2016. It

 paid the victim $8048 for lost wages and $21,952 for medical

 expenses.1 The report stated that “[e]ach bill received by CVCP is

 verified to ensure that it is crime related; that no other funding

 source was responsible (insurance) and to verify the most up to

 date balance.”

¶8    Believing that the insurance Release and settlement satisfied

 his restitution obligation, Stanley never filed an objection to the

 prosecution’s motion for restitution. On June 14, 2016, the court

 granted the unopposed motion and ordered Stanley to pay the

 victim $30,000 in restitution. Later that same day, Stanley filed a


 1 The exact date of the CVCP’s payment to the victim is not clear
 from the record. The CVCP report contains a notation that it was
 printed on “2/9/2016” and was filed with the court on “May 3,
 2016.”
                                    4
  Motion for Reconsideration of the Restitution Order, explaining his

  misunderstanding and requesting a hearing and a setoff. The court

  granted Stanley’s hearing request.

¶9     At the hearing, the parties relied on two documents — the

  CVCP report evidencing the $30,000 payment and the Release

  evidencing the $25,000 settlement. Neither party presented any

  other evidence.

¶ 10   The prosecution argued that because the Release constituted

  an unapportioned settlement, Stanley bore the burden of proving

  that the settlement proceeds were intended to compensate the

  victim for the same lost wages and medical expenses compensated

  by the CVCP. Specifically, “[the Release] talks in no way about

  where this $25,000 is to be allocated. Is it supposed to go to

  medical or pay for the damages to the vehicle?” Relying on People v.

  Lassek, 122 P.3d 1029 (Colo. App. 2005), the prosecution argued

  that the “entire amount could have simply gone to [nonpecuniary

  losses not covered by the restitution statute]” and asked the court

  to find that Stanley had not met his apportionment burden.

¶ 11   Stanley agreed that he bore the burden of establishing the

  existence of a setoff. He asserted that the Release “broadly

                                    5
  apportioned” the proceeds through the language stating an intent to

  compensate for “any and every claim” for loss of services, as

  relevant to wage loss, and for personal injuries and all

  consequences of them, as relevant to medical expenses. He

  reasoned that the settlement proceeds necessarily included the

  medical and lost wages compensation the victim received from the

  CVCP. He further argued that the CVCP was remiss in failing to

  offset restitution by the settlement amount under § 24-4.1-110(1),

  C.R.S. 2016.

¶ 12   The trial court held that $30,000 in restitution was

  reasonable, due, and owing. It further held that the Release’s broad

  language was “all encompassing and [that] it include[d] every type

  of claim imaginable and any type of injury imaginable.” It found the

  Release “contemplate[d] payment for the very same categories that

  are set forth in the prosecution’s restitution report,” and noted that

  these types of releases never apportioned proceeds to specific loss

  categories. Therefore, it awarded Stanley a $25,000 setoff against

  restitution and ordered him to pay the $5000 net amount.2


  2 Stanley does not cross-appeal the court’s findings concerning the
  reasonableness of the $30,000 restitution award.
                                    6
                             II.    Analysis

¶ 13   Relying on Lassek and People in Interest of T.R., 860 P.2d 559

  (Colo. App. 1993), the prosecution urges us to reverse the court’s

  order, arguing that the Release is an unapportioned settlement that

  does not “earmark” the proceeds for the same expenses

  compensated by the CVCP, as required by these cases. While we

  acknowledge that Lassek and T.R. could be read to support this

  argument, for the reasons described below we conclude that these

  cases do not require the level of specificity urged by the

  prosecution.3

                        A.     Standard of Review

¶ 14   We review a trial court’s restitution award for an abuse of

  discretion. People v. Sieck, 2014 COA 23, ¶ 5. A trial court abuses

  its discretion when it misconstrues or misapplies the law, id., or

  when its decision fixing the amount of restitution is not supported

  by the record, see People v. Rivera, 968 P.2d 1061, 1068 (Colo. App.

  1997). “We will not disturb the district court’s determination as to




  3 In any event, we are not bound by decisions of other divisions of
  this court. People v. Smoots, 2013 COA 152, ¶ 20, aff’d sub nom.
  Reyna-Abarca v. People, 2017 CO 15.
                                     7
  the proper amount of restitution if it is supported by the record.”

  People v. Bohn, 2015 COA 178, ¶ 8.

¶ 15   We review and interpret statutes de novo. People v.

  Padilla-Lopez, 2012 CO 49, ¶ 7. When construing statutes, we aim

  to ascertain and give effect to the intent of the General Assembly.

  Id. We accord words and phrases their plain and ordinary

  meanings. Id. “Where the language is clear, it is not necessary to

  resort to other tools of statutory construction.” Goodman v.

  Heritage Builders, Inc., 2017 CO 13, ¶ 7.

                          B.    Applicable Law

¶ 16   As part of “[e]very order of conviction,” a trial court must order

  a defendant to pay restitution if the defendant’s conduct caused

  pecuniary loss to a victim. § 18-1.3-603(1); People v. Reyes, 166

  P.3d 301, 302 (Colo. App. 2007). Restitution means “any pecuniary

  loss suffered by a victim . . . proximately caused by an offender’s

  conduct and that can be reasonably calculated and recompensed in

  money.” § 18-1.3-602(3)(a), C.R.S. 2016. The General Assembly

  has declared restitution to be a mechanism for rehabilitating

  offenders, deterring future criminality, and reducing the financial

  burden on and compensating victims and their families for their

                                    8
  losses. § 18-1.3-601(1)(c)-(g). The restitution statute must be

  liberally construed to accomplish these goals. § 18-1.3-601(2).

¶ 17   The court bases its restitution order on information provided

  by the prosecuting attorney. § 18-1.3-603(2). The prosecution

  bears the burden of proving the amount owed by a preponderance

  of the evidence, People v. Smith, 181 P.3d 324, 328 (Colo. App.

  2007), while the defendant bears the burden of proving any setoff.

  Lassek, 122 P.3d at 1035.

¶ 18   Compensable losses are defined in §§ 24-4.1-109(1) and (1.5),

  and include the following:

            (a) Reasonable medical and hospital expenses
            and expenses incurred for dentures,
            eyeglasses, hearing aids, or other prosthetic or
            medically necessary devices;

            (b) Loss of earnings;

            (c) Outpatient care;

            (d) Homemaker and home health services;

            (e) Burial expenses;

            (f) Loss of support to dependents;

            (g) Mental health counseling;

            (h) Household support; except that household
            support is only available to a dependent when:


                                    9
         (I) The offender is accused of committing the
         criminally injurious conduct that is the basis
         of the dependent’s claim under this article;

         (II) As a result of the criminal event, the
         offender vacated any home the offender shared
         with the dependent; and

         (III) The dependent provides verification of
         dependency on the offender at the time of the
         criminal event.

         (1.5)(a) Losses compensable under this part 1
         resulting from property damage include:

         (I)(A) Repair or replacement of property
         damaged as a result of a compensable crime;
         or

         (B) Payment of the deductible amount on a
         residential insurance policy;

         (II) Any modification to the victim’s residence
         that is necessary to ensure victim safety; and

         (III) The rekeying of a motor vehicle or other
         lock that is necessary to ensure the victim’s
         safety.

Compensable losses do not include

         (a) Pain and suffering or property damage
         other than residential property damage or
         rekeying a lock pursuant to subparagraph (III)
         of paragraph (a) of subsection (1.5) of this
         section; or

         (b) Aggregate damages to the victim or to the
         dependents of a victim exceeding thirty
         thousand dollars.

                                10
  § 24-4.1-109(2).

¶ 19     Additionally, if a crime victim compensation board provides

  assistance to a victim, “the amount of assistance provided and

  requested by the crime victim compensation board is presumed to

  be a direct result of the defendant’s criminal conduct and must be

  considered by the court in determining the amount of restitution

  ordered.” § 18-1.3-603(10)(a). The amount of assistance provided

  may be established by either (1) a list of the amount of money paid

  to each provider; or (2) a summary data reflecting what total

  payments were made for medical and dental expenses, funeral or

  burial expenses, mental health counseling, wage or support losses,

  or other expenses, if the identity or location would pose a threat to

  the safety or welfare of the victim. § 18-1.3-603(10)(b)(II).

¶ 20     The restitution statute also furthers a second interest — that

  of avoiding double recovery. As pertinent here, a trial court may

  decrease a restitution award if the defendant has otherwise

  compensated the victim or victims for “the pecuniary losses

  suffered.”4 § 18-1.3-603(3)(b)(II). Indeed, “[a]ny amount paid to a



  4   The General Assembly has defined restitution as
                                     11
  victim under an order of restitution shall be set off against any

  amount later recovered as compensatory damages by such victim in

  any federal or state civil proceeding.” § 18-1.3-603(6); People v.

  Maxich, 971 P.2d 268, 269 (Colo. App. 1998); see also § 18-1.3-

  603(8)(c)(I) (a court may not award restitution to a victim

  concerning a pecuniary loss for which the victim has received or is

  entitled to receive benefits or reimbursement under a policy of

  insurance or other indemnity agreement).

¶ 21   When a victim receives compensation from a civil settlement

  against a defendant, the defendant may request a setoff against




            any pecuniary loss suffered by a victim and
            includes but is not limited to all out-of-pocket
            expenses, interest, loss of use of money,
            anticipated future expenses, rewards paid by
            victims, money advanced by law enforcement
            agencies, money advanced by a governmental
            agency for a service animal, adjustment
            expenses, and other losses or injuries
            proximately caused by an offender’s conduct
            and that can be reasonably calculated and
            recompensed in money. “Restitution” does not
            include damages for physical or mental pain
            and suffering, loss of consortium, loss of
            enjoyment of life, loss of future earnings, or
            punitive damages.

  § 18-1.3-602(3)(a), C.R.S. 2016.
                                     12
  restitution “to the extent of any money actually paid to the victim

  for the same damages.” Lassek, 122 P.3d at 1034. Moreover,

  “[w]here a civil claim precedes the restitution proceeding, the court

  must first determine the total amount of the victim’s pecuniary

  damages subject to restitution and then subtract ‘any proceeds

  attributable to those damages received by the victim’ from the civil

  claim.” Id. at 1034-35 (quoting People v. Acosta, 860 P.2d 1376,

  1382 (Colo. App. 1993)).

¶ 22   Still, for purposes of a setoff, the court cannot allocate

  proceeds from an unapportioned civil settlement agreement without

  “specific evidence that the settlement included particular categories

  of loss.” Lassek, 122 P.3d at 1035. This is so because, in civil

  cases, victims may recover both pecuniary losses covered by the

  restitution statute and other damages specifically excluded under

  the restitution statute, such as loss of future earnings and

  nonresidential property damages, as well as nonpecuniary damages

  for pain and suffering, inconvenience, or impairment of the quality

  of life. See id.; see also § 13-21-102.5, C.R.S. 2016; § 18-1.3-

  602(3)(a); § 24-4.1-109(2).



                                    13
¶ 23   When applying a setoff, the trial court must make specific

  findings on the apportionment of actual damages for which the

  defendant compensated the victim and set off that amount against

  any restitution ordered. T.R., 860 P.2d at 564. Thus, in the

  absence of evidence demonstrating that a civil settlement was

  intended to be allocated in a particular way, a trial court need not

  set off any amounts from that settlement against the ordered

  restitution. Lassek, 122 P.3d at 1035.

                             C.    Application

¶ 24   We begin with T.R. and Lassek, which we find informative but

  distinguishable from this case. In T.R., the victim’s estate and

  surviving spouse brought a civil action against T.R. that was

  defended by T.R.’s automobile liability insurer. T.R., 860 P.2d at

  564. The parties reached a settlement for the policy limit of

  $100,000 in exchange for a waiver of any further claims against

  T.R. Id. The settlement agreement did not designate the proceeds

  as being for any particular purpose. Id. Even so, the juvenile court

  apportioned some of the settlement proceeds to expenses incurred

  by the victim’s estate as a restitution setoff. Id. A division of this

  court reversed T.R.’s convictions on unrelated grounds and

                                     14
  instructed that if restitution were to arise on remand, the trial court

  should “make specific findings on the apportionment of actual

  damages that the victim’s estate was compensated for under the

  civil settlement agreement and to set off that amount against any

  restitution ordered.” Id.

¶ 25   Similarly, in Lassek, the defendant pleaded guilty to charges

  related to a fatal traffic accident. Lassek, 122 P.3d at 1031. The

  trial court ordered restitution that included costs for burial

  expenses and travel and lodging expenses incurred by the victim’s

  parents in attending the memorial service. Id. at 1034. Lassek

  sought a $50,000 setoff against restitution based on a settlement

  payment made by his automobile insurer to the victim’s family as

  part of a “Covenant Not to Execute” signed by the victim’s parents.

  Id. at 1035. But the Covenant “did not identify any particular

  losses covered by the payment.” Id.

¶ 26   The trial court concluded it could not make a setoff because it

  could not determine the amount of the settlement proceeds which

  compensated the parents for the burial and travel expenses. Id. A

  division of this court affirmed the trial court’s order, ruling the

  settlement proceeds “unapportioned” because the Covenant did not

                                     15
  identify any expenses covered by the restitution order. Id. It

  further concluded that the defendant bore the burden of

  establishing apportionment. Id.

¶ 27   In contrast to both of these cases, where the settlement

  agreements did not identify particular categories of losses, the plain

  language of the Release identifies “any and every claim, demand,

  right or cause of action . . . any and all personal injuries and

  consequences thereof . . . any loss of services . . . and any and all

  property damage resulting or to result from an accident” as

  encompassed within the settlement. (Emphasis added.) A

  settlement agreement is a contract. See H. W. Houston Constr. Co.

  v. Dist. Court, 632 P.2d 563, 565 (Colo. 1981). The primary goal of

  contract interpretation is to give effect to the intent of the

  parties. Ad Two, Inc. v. City & Cty. of Denver, 9 P.3d 373, 376

  (Colo. 2000). We discern the parties’ intent by looking to the plain

  and generally accepted meaning of the contractual

  language. Copper Mountain, Inc. v. Indus. Sys., Inc., 208 P.3d 692,

  697 (Colo. 2009). The meaning of a contract is found by examining

  the entire instrument and not by viewing clauses or phrases in

  isolation. Fed. Deposit Ins. Corp. v. Fisher, 2013 CO 5, ¶ 9.

                                     16
¶ 28   We conclude, therefore, that “personal injuries and the

  consequences thereof” include both physical and emotional harm

  arising from the costs of treatment for bodily injury (here, medical

  expenses for the victim’s injuries), and also from the several types of

  nonpecuniary damages recoverable by the victim in a civil claim

  based on those physical injuries, such as pain and suffering,

  inconvenience, and emotional distress. See Lassek, 122 P.3d at

  1035. Similarly, we conclude that “loss of services” includes

  the lost wages compensated by the CVCP. For these reasons, we

  agree with the trial court that Stanley met his burden of going

  forward with evidence that the Release identified “particular losses

  covered by the [CVCP] payment.” Id.

¶ 29   This conclusion does not end our analysis, however, because

  as argued by the prosecution, and as recognized by the division in

  Lassek, the victim “could allocate the entire settlement to

  noneconomic [i.e. noncompensable] damages.” Id. Indeed, the

  language “any and every claim, demand, right or cause of action”

  and “property damage” is broad enough to include noncompensable

  losses, such as automobile damage, and pain and suffering related

  to the victim’s physical injuries.

                                       17
¶ 30   How then does a trial court give effect to § 18-1.3-603(3)(II)

  and the underlying policy of preventing double recovery expressed

  in § 18-1.3-603(6) while simultaneously giving effect to the statute’s

  policy of making the victim whole? None of our cases has answered

  this question.

¶ 31   We are guided by a related statute from the Colorado Crime

  Victim Compensation Act (Act).5 Section 24-4.1-110 of this Act,

  titled “Recovery from collateral source,” provides as follows:

            (1) The board shall deduct from compensation
                it awards under this part 1 any payments
                received by the applicant from the offender
                or from a person on behalf of the offender,
                from the United States or any state, or any
                subdivision or agency thereof, from a
                private source, or from an emergency award
                under this part 1 for injury or death
                compensable under this part 1, excluding
                death or pension benefits.

            (2) If compensation is awarded under this part
                1 and the person receiving it also receives a
                collateral sum under subsection (1) of this
                section which has not been deducted from
                it, he shall refund to the board the lesser of

  5 Similar to the restitution statute, the General Assembly intended
  this Act “to provide protection and assistance to victims and
  members of the immediate families of such victims by declaring and
  implementing the rights of such persons and by lessening the
  financial burden placed upon such victims due to the commission
  of crimes.” § 24-4.1-101, C.R.S. 2016.
                                    18
                the sums or the amount of compensation
                paid to him under this part 1 unless the
                aggregate of both sums does not exceed his
                losses. The fund shall be the payor of last
                resort.


            (3) If a defendant is ordered to pay restitution
                under article 18.5 of title 16, C.R.S., to a
                person who has received compensation
                awarded under this part 1, an amount
                equal to the compensation awarded shall be
                transmitted from such restitution to the
                board for allocation to the fund.

¶ 32   As relevant here, under subsection (1), if the board knows

  about a collateral payment to the victim for a compensable damage,

  it must deduct that amount before issuing its award. Subsection

  (2) requires a person compensated by the CVCP (the victim here) to

  refund the CVCP for compensation paid to that person by the

  offender or by another on behalf of the offender. That is, if the

  victim receives a “collateral sum” after the award has already been

  made by the board, then the victim must refund any duplicative

  amounts, which necessarily could only be compensable damages.

¶ 33   In order to calculate the amount of any refund owed, a victim

  would necessarily need to determine whether the compensation he

  or she received from the defendant was used to reimburse the same


                                    19
  losses and expenses compensated by the CVCP and then to provide

  such information to the CVCP. Our General Assembly has deemed

  this information “confidential” under § 24-4.1-107.5, C.R.S. 2016,

  and, therefore, inaccessible to a defendant except in a narrow

  circumstance not applicable here.6

¶ 34   Because the information needed to determine whether the

  victim has been fully compensated or has received any double

  recovery is known only by the victim, we conclude that once a

  defendant has shown that a civil settlement includes the same

  categories of losses or expenses as compensated by the CVCP and

  awarded as restitution, the defendant has met his or her burden of

  going forward, and the prosecution may then rebut the inference

  that a double recovery has occurred. The prosecution can do so by

  showing that the victim used or allocated the settlement proceeds

  for losses proximately caused by the defendant’s criminal conduct

  but which were not paid by the CVCP and covered by the restitution

  order. In sum, we affirm the trial court’s finding that Stanley met


  6 Under § 24-4.1-107.5(3), C.R.S. 2016, a defendant may request an
  in camera review to rebut the presumption of causation, but only
  based on a defendant’s proffer of a nonspeculative evidentiary
  hypothesis.
                                   20
  his burden of proving a setoff and remand for further proceedings to

  allow the prosecution to show that the victim did not receive a

  double recovery from the insurance settlement proceeds and the

  CVCP payment. The trial court should adjust the restitution order

  in accordance with that additional evidence, subject to further

  appeal by either party.

¶ 35   Finally, because of our disposition, we need not address

  whether the CVCP properly considered the insurance settlement

  when compensating the victim for medical expenses and lost wages.

                            III.   Conclusion

¶ 36   The order is affirmed and the case is remanded for further

  proceedings consistent with this opinion.

       JUDGE BOORAS concurs.

       JUDGE WEBB specially concurs.




                                    21
       JUDGE WEBB, specially concurring.

¶ 37   While I agree with the majority’s disposition, I write separately

  to air the possibility of a legislative solution.

¶ 38   On the one hand, a trial court may decrease a restitution

  award if a defendant has otherwise compensated a victim for the

  “pecuniary losses suffered.” § 18-1.3-603(3)(b)(II), C.R.S. 2016.

  But on the other, this phrase does not restrict the decrease based

  on overlap between that compensation and either losses

  compensable under the restitution statute or any specific item in

  the restitution award. Indeed, while section 18-1.3-603(6) applies

  to a setoff against a post-restitution civil judgment rather than

  against a restitution award, it too does not require any overlap

  between the items covered by a restitution award and the items

  “recovered as compensatory damages.” The breadth of the latter

  section could have significant consequences if the civil judgment

  included only noneconomic losses, such as pain and suffering, for

  which the restitution award could not have compensated the victim.

¶ 39   At the restitution hearing in this case, the trial court found,

  “You’ll never see a release that says X number of dollars goes to

  paying the Kaiser bill and X number of dollars goes to paying Auto

                                      22
  Nation for repairs nor will you see this is earmarked for or

  designated for medical expenses.” This finding raises the dilemma

  that, in many cases, the defendant may be unable to meet even the

  burden imposed by the majority.

¶ 40   True, the majority avoids this dilemma by focusing on

  language in the Release that corresponds to the two categories of

  loss identified by the victim compensation board. But that solution

  may be unavailable in many cases, just as it was unavailable in

  Lassek. And even here, the question is close because while the

  release expressly addresses “services,” it is silent as to “medical

  expenses.”1

¶ 41   To avoid further uncertainty, the General Assembly may wish

  to consider amending section 18-1.3-603(3)(b)(II) to clarify exactly

  what must be proven, and by whom, to invoke the trial court’s

  discretion to order a setoff under section 18-1.3-603(3), where a

  civil settlement predates a restitution hearing.




  1 This dilemma may be unique to settlements, because if a victim
  recovers a civil judgment, the jury may have apportioned damages
  among categories such as economic and noneconomic loss.
                                    23
