Restitution Damages Lawyers

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 What Is Restitution?

When one individual has benefited at the expense of another individual, they may be required to make the other individual whole by repaying them. Restitution can be awarded when a court tries to prevent a defendant from unjust enrichment.

In other words, the law does not want an individual to be rewarded for being dishonest. Even though it seems simple, it can be extremely powerful when restitution is awarded.

When Does Restitution Apply?

Usually, restitution can be awarded in numerous different areas of law. It can be a remedy for many different types of situations, including breach of contract.

When contracts are formed, one of the parties promises the other contracting party something in exchange for a benefit. If one party benefits from the promise but the other party receives nothing in return, then a breach has occurred, and, likely, the first party was unjustly enriched.

Restitution may serve as a remedy for that. In both criminal and civil law cases, an individual may be awarded restitution for physical injuries caused to them or for financial losses if they can show the court that the damage was a direct result of the defendant’s actions.

It is important to note that restitution is only available when a plaintiff is rightly entitled to the recovery. In other words, if the plaintiff did not recover, the defendant would wrongfully be enriched.

Restitution, however, will not be provided in a situation where an individual has benefited by mere coincidence. For example, suppose Bob adds a driveway to his home from a public road that makes Tom’s home more accessible, thereby increasing his property value.

Bob cannot require Tom to pay restitution based on this enrichment. The enrichment is purely coincidental and, therefore, is not unjust.

In addition, if another individual gains enrichment based on terms that were agreed to in a contract between the parties, restitution is an option.

What Kinds of Civil Cases Receive Restitution?

There are several types of civil liability cases in which restitution may be awarded, including:

  • Personal injury: Due to one individual’s conduct, another individual was physically injured or incurred out-of-pocket expenses. Examples of personal injury include:
    • car accidents;
    • assault and battery;
    • negligence in the workplace; and
    • medical malpractice;
  • Breach of contract: If an individual incurred out-of-pocket expenses due to a breach of contract by the other party, they may be entitled to restitution;
    • Expenses could have been incurred as a result of preparing for the contract or in anticipation of the contract, and then the other party failed to go through with the contract;
    • Expenses may also be incurred when the other party fails to perform under the contract; and
  • Conferring a benefit: If one individual aids another individual who is in distress and, in the process, they incur a loss, the helping party may be entitled to restitution;
    • For example, if they jump into a lake to save a person from drowning and incur an injury, the person saved may have to reimburse the expenses of the individual who saved them.

Any violation of civil law that causes an individual to incur an out-of-pocket expense may be repaid in the form of restitution during a civil lawsuit.

How Is Restitution Measured?

In general, determining the amount of restitution focuses on how the defendant benefited and what they gained, as opposed to what the plaintiff lost. It is important to note this is different from compensation.

Compensation, called compensatory damages, is calculated based on what the plaintiff financially lost and other issues. Restitution may be determined by:

  • The value of the benefit the defendant received;
  • Market value of the benefit;
  • The expense to the plaintiff in presenting the benefit; or
  • An innocent holding of benefits;
    • Typically, this arises when mistake is used as a defense to unjust enrichment. However, repayment is still expected.

It is ultimately up to the court to determine how much to award a victim. An award may be flexible, as other factors besides loss and gain are considered when determining what should be granted, including:

  • The seriousness of the offense;
  • Whether the defendant can pay restitution now or later; and
  • The financial hardship placed on the victim, the victim’s family, the government, or any other parties who may have been injured during the commission of the crime.

When Can Restitution Be Awarded?

As noted above, restitution is a common remedy in breach of contract cases. It may also be awarded in civil law cases involving:

  • Assault and battery;
  • Negligence;
  • Medical malpractice; or
  • Personal injury.

It is important to note that the victim is not the only individual who may recover a restitution award. A third party may also recover if they help the plaintiff.

Certain types of criminal cases also have a high likelihood of restitution payments. Victims of burglary and robbery will likely be entitled to repayment at the value of the goods stolen.

Similar to civil cases, third parties may also be entitled to restitution, for example, in homicide cases, where the victim’s death may cause the court to award restitution to the victim’s family.

If I Am a Victim of a Crime, Can I Receive Restitution?

Yes, if an individual is a victim of a crime, they can receive restitution. Courts frequently order a defendant who is convicted of a crime to pay restitution.

If, however, the defendant is found not guilty or if the state decides not to prosecute the case, the victim may not be able to receive an order for restitution. Criminal restitution requires that the crime the defendant is convicted of is directly related to the out-of-pocket expense.

For example, if a defendant is accused of assaulting a victim and stealing from them but they are only convicted of the assault, it may be difficult for the victim to recover for the loss of the theft when they request restitution.

However, many states provide a victim compensation fund in situations where the defendant is unable to pay the restitution or the state cannot obtain a restitution order.

Are There Any Limits on Restitution Awards?

Restitution is typically determined by what the victim or the victim’s family can accurately prove. If there is no evidence of how a defendant benefited, a court will not award restitution or may only award the proven amount.

It is important to note that there are, in some cases, choices in how the court will remedy a case. A court may allow the victim to choose between a damages award or restitution.

In those limited cases, the victim can choose one but not both.

Do I Need a Lawyer to Recover Restitution?

If you believe you are entitled to restitution, consulting with a local contract attorney who can help you pursue a claim is important. Your lawyer can advise you of the laws governing restitution in your state and what steps you should take to ensure that your restitution is maximized.

If you must file a lawsuit requesting restitution, your lawyer will guide you through the process and appear in court.

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