10.5Interplay Between Restitution and Civil Damages

A restitution order entered in a criminal case does not act as a bar to the recovery of damages in a civil action arising out of the same incident. Aetna Casualty & Surety Co v Collins, 143 Mich App 661, 663 (1985); Pilgrim’s Rest Baptist Church v Pearson, 310 Mich App 318, 325-326 (2015). See also People v Orweller, 197 Mich App 136, 140 (1992) (recognizing that restitution is not a substitute for civil damages). “[T]he fact that civil damages are not available . . . does not necessarily mean that restitution is also unavailable.” People v Lee (Edward), 314 Mich App 266, 275 (2016) (“an award of restitution may [not] be precluded by the result of civil proceedings[]”).

“[T]he amount of civil damages to which one is entitled is not necessarily equivalent to the amount of loss that one has experienced for purposes of the CVRA, and ‘the statutory scheme for restitution is separate and independent of any damages that may be sought in a civil proceeding.” Lee (Edward), 314 Mich App at 278-279 (finding that the victim was not collaterally estopped from seeking restitution where the issue in the criminal case, “whether the [victim was] entitled under the CVRA to restitution as a victim that suffered a loss due to [the] defendant’s criminal conduct[,]” was not the same as the issue decided in the civil case that barred the victim from seeking civil damages because the victim’s claim arose out of a debt that was extinguished as a matter of law). The distinction between restitution and civil damages is reflected in the setoff provisions in the CVRA, MCL 780.766(9), MCL 780.794(9), and MCL 780.826(9), which “clearly recognize[] that the statutory scheme for restitution is separate and independent of any damages that may be sought in a civil proceeding.” People v Dimoski, 286 Mich App 474, 479 (2009),¹ quoting In re McEvoy, 267 Mich App 55, 67 (2005). Specifically, MCL 780.766(9), MCL 780.794(9), and MCL 780.826(9) provide, in relevant part, that “[a]ny amount paid to a victim or victim’s estate under an order of restitution shall be set off against any amount later recovered as compensatory damages by the victim or victim’s estate . . . .”

“Although [a] victim [may] have the benefit of both a civil judgment and a restitution order to obtain monetary relief from [a] defendant, the availability of two methods does not mean that the victim will have a double recovery, but merely increases the probability that the perpetrator of a crime will be forced to pay for the wrongdoing committed.” Dimoski, 286 Mich App at 482.