The opinion
Kline, Judge,
dissenting.
{¶ 18} I respectfully dissent from the majority’s judgment to reverse the judgment of the trial court.
{¶ 19} I believe that the indemnity agreement in this case, even if it technically encompassed criminal restitution, would be void as contrary to the purposes of imposing criminal restitution set forth in R.C. 2929.11(A). This conclusion is especially true in light of the fact that R.C. 2929.18(A)(1), the statute giving criminal courts the authority to impose restitution, protects a criminal defendant
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from the harm the indemnity clause seeks to avoid, i.e., having to pay the same damages twice. R.C. 2929.18(A)(1) states that “[a]ll restitution payments shall be credited against any recovery of economic loss in a civil action brought by the victim or any survivor of the victim against the offender.”
{¶ 20} Recognizing the concern of a victim’s potential double recovery from receiving both a civil recovery and criminal restitution, this court has held that “[restitution is limited to the actual loss caused by the defendant’s criminal conduct” and where a victim was already compensated for losses suffered as the result of the offender’s criminal conduct, the criminal offender could not “properly be ordered to pay restitution to the victim, since it would result in an economic windfall.”
State v. Martin
(2000), 140 Ohio App.3d 326, 337 , 747 N.E.2d 318 .
{¶ 21} In my view, any issue Brown has regarding multiple payments for the same damages must be addressed in the criminal court, not in a separate civil action. The onus is on the criminal defendant to “ask the court in the criminal case to credit any amounts” already recovered by the person awarded restitution.
State Farm Mut. Auto. Ins. Co. v. Hill,
Greene App. No. 2006 CA 24, 2007-Ohio-581 , 2007 WL 431475 , ¶ 12. Allowing Brown to forgo his potential right to a setoff under R.C. 2929.18(A)(1), and instead pursuing an action against the victim of his crime under an indemnity clause set forth in a civil settlement agreement should be prohibited.
{¶ 22} By dissenting, I do not intend to imply that Brown has, in fact, been ordered to pay the same damages twice. As noted by the majority, courts “need not assume that the victim has been fully compensated merely because the victim settled a civil claim with the defendant.”
State v. Gray,
Belmont App. No. 02 BA 26, 2003-Ohio-805 , 2003 WL 403561 , ¶ 21.
{¶ 23} Accordingly, for the above stated reasons, I dissent.