State of Iowa vs. Corey Douglas Driscoll

IN THE SUPREME COURT OF IOWA
No. 12–1636
Filed November 1, 2013
STATE OF IOWA,
Appellee,
vs.
COREY DOUGLAS DRISCOLL,
Appellant.
Appeal from the Iowa District Court for Jackson County, Paul L.
Macek, Judge.
A criminal defendant appeals the denial of his application for an
order satisfying restitution. REVERSED AND REMANDED WITH
INSTRUCTIONS.
Joshua J. Reicks and Steven J. Kahler of Schoenthaler, Bartelt,
Kahler & Reicks, Maquoketa, for appellant.
Thomas J. Miller, Attorney General, Martha E. Trout, Assistant
Attorney General, Christopher M. Raker, County Attorney, and Sara D.
Davenport, Assistant County Attorney, for appellee.

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APPEL, Justice.
In this case, we consider whether amounts paid by an offender
pursuant to settlement agreements in civil wrongful-death actions prior
to the offender’s criminal conviction and sentencing should be set off
against restitution orders entered as a result of the criminal convictions.
The district court held that the amounts paid by the tortfeasor should
not be set off against the subsequent restitution order. We conclude the
criminal defendant is entitled to set off the amounts paid to settle the
civil claims. We therefore reverse and remand the case to the district
court with instructions.
I. Factual and Procedural Background.
On August 14, 1999, Corey Driscoll was the driver in a single-
vehicle accident that resulted in the deaths of Mark Empen and Lindsay
Gibbs. On September 24, the State charged Driscoll with two counts of
homicide by vehicle as a result of the accident.
On April 26, 2000, prior to the resolution of his criminal
proceeding, Driscoll entered into a civil-settlement agreement with the
Estate of Mark Empen pursuant to which Driscoll agreed to pay
$130,000 in exchange for a release of claims resulting from the accident.
The release stated Empen’s estate
do[es] hereby release, acquit and forever discharge Corey
Driscoll of and from any and all actions, causes of action,
claims, demands, costs, loss of services, loss of consortium,
expenses and compensation, on account of, or in any way
growing out of, any and all known and unknown personal
injuries and property damage resulting or to result from an
accident that occurred on or about the 14th day of August,
1999, at or near Bellevue, Iowa.
The beneficiaries of Empen’s estate consented to the settlement. The
district court approved the settlement and authorized the execution of
the release.

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On May 8, Driscoll entered into a somewhat different settlement
with the Estate of Lindsay Anne Gibbs. This release provided that in
exchange for Driscoll’s payment of $165,000, Gibbs’s estate and her
heirs
do hereby forever release, acquit, and discharge, Corey
Driscoll, his heirs, successors, and assigns, and Farm
Bureau Mutual Insurance Company, and its agents and
representatives, from all claims of every type and description
which in any way arise out of or are related to an incident
which occurred on or about August 14, 1999 . . . .
As with the Empen settlement, the district court approved the Gibbs
settlement.
On August 25, Driscoll entered a guilty plea to both counts of
homicide by vehicle. The district court sentenced Driscoll to an
indeterminate term of incarceration not to exceed ten years on each
count and ordered the sentences be served concurrently. The district
court also ordered Driscoll “to pay restitution to the families of the
victims in the amount of $150,000.00 on each count” and to pay fines,
penalties, and surcharges in the amount of $2600. In January 2001, the
department of corrections filed a restitution plan that increased the total
amount due by $210.85 for additional fines, penalties, and surcharges.
In early July 2003, the department of corrections informed county
law enforcement officials that Driscoll would be released on parole in the
near future. On October 16, Driscoll signed a restitution plan of
payment setting forth the restitution due as $301,638.79.1
On April 13, 2004, the district court entered an order finding
Driscoll was unable to pay the $2810.85 due for court costs and fees.
1 This amount reflected the original court-ordered payments, the $210.85
additional court costs, and later-added sheriff’s fees less the total restitution paid as of
October 16, 2003.

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The district court ordered Driscoll to satisfy this obligation through
community service. This order did not mention the $300,000 due for
victim restitution. Driscoll’s probation officer informed the district court
on April 6, 2005, that Driscoll had fulfilled the required community
service hours.
On June 26, 2012, Driscoll applied to the district court for an
order stating he had satisfied his restitution obligation. Driscoll argued
that under Iowa Code section 910.8 and this court’s decision in State v.
Klawonn, 688 N.W.2d 271 (Iowa 2004), the settlement amounts paid to
the estates of Empen and Gibbs should be set off against the restitution
amounts ordered to be paid to the families by the district court.
The State resisted the application. The State asserted Klawonn did
not provide for the setoff claimed by Driscoll under section 910.8
because Driscoll settled the civil suits before the district court ordered
him at sentencing to pay restitution.
Following a hearing, the district court denied Driscoll’s application.
The district court reasoned that the settlements were not the result of a
civil action, occurred prior to the criminal sentencing, and thus could not
be the basis of a setoff against the restitution order. The district court
further reasoned that if the application were granted, Driscoll would not
receive the rehabilitative or punitive effects of restitution if his
automobile insurance carrier paid part or all of his restitution
obligations.
Driscoll appeals.
II. Scope of Review.
We review a restitution order for correction of errors at law.
Klawonn, 688 N.W.2d at 274; State v. Watts, 587 N.W.2d 750, 751 (Iowa
1998). In doing so, “ ‘we determine whether the court’s findings lack

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substantial evidentiary support, or whether the court has not properly
applied the law.’ ” Klawonn, 688 N.W.2d at 274 (quoting State v.
Bonstetter, 637 N.W.2d 161, 165 (Iowa 2001)).
III. Discussion.
Iowa Code section 910.8 (2011) provides in relevant part that “any
restitution payment by the offender to a victim shall be set off against
any judgment in favor of the victim in a civil action arising out of the
same facts or event.” Driscoll concedes his settlement payments were
not pursuant to judgments entered in the civil actions. Nonetheless,
Driscoll claims he is entitled to a setoff under section 910.8 in light of
Klawonn.
In Klawonn, we considered whether a criminal defendant was
entitled to have the amount of a statutorily-mandated, court-ordered
restitution payment set off by the amount of a civil settlement that
occurred subsequent to the initial restitution order. 688 N.W.2d at 273–
74. Because the civil action did not result in the entry of a judgment, the
central issue was whether section 910.8 permitted a setoff where there
was a civil settlement, but no entry of judgment against the defendant.
Id. at 274. We concluded a judgment was not required because the
purpose of section 910.8 was to coordinate a criminal-restitution
payment with a civil-damage award to prevent the victim from receiving a
windfall in the form of the restitution award. Id. at 275–76.
Notwithstanding the literal language of the statute, we concluded the
legislature did not intend for a setoff to run on the technicality of
whether a judgment was entered. Id. at 276. We further noted the
settlement “was equivalent to a final judgment in the civil action”
because the settlement covered all civil damages that could have been

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recovered absent the parties’ express reservation of certain claims or
damages. Id. at 275.
The State counters that Klawonn is distinguishable because it
dealt with a civil settlement that occurred after the restitution order had
been entered in the criminal case. The State maintains that where the
civil-settlement amounts are paid prior to criminal sentencing, the
defendant must advise the district court of the settlements. Further, the
State argues that to wait twelve years and raise the issue of a setoff is
improper and prejudicial to the victims’ estates.
We find Driscoll has the better argument. Klawonn makes clear
the purpose of the statute is to coordinate civil recoveries with criminal
restitution to avoid double recovery. Id. at 275. The statutory purpose of
coordinating civil damages with criminal-restitution payments as
declared in Klawonn does not turn on the timing of the civil-settlement
and criminal-restitution orders.
As in Klawonn, the release language in the Gibbs and Empen
settlement documents unambiguously show a desire to release all claims
against Driscoll related to the accident. See id. at 272, 275 (holding a
release containing substantively similar language to the releases at issue
here was a total release); see also Mensing v. Sturgeon, 250 Iowa 918,
920, 922, 97 N.W.2d 145, 146–47 (1959) (holding a release containing
language nearly identical to the Empen release barred a future action by
the releasee against the releasor for damages arising from the same
motor vehicle accident). Although the language in each release is
different, they are broad-form releases commonly used in civil litigation.
In neither release did the estates of the deceased reserve any rights
against Driscoll arising out of the accident. See Klawonn, 688 N.W.2d at
275 (noting the victim’s widow and estate could have preserved their

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rights to receive restitution payments as additional consideration for the
release); see also In re Marriage of McNerney, 417 N.W.2d 205, 208 (Iowa
1987) (observing a “personal injury award is generally composed of three
potential elements: (1) those compensating the injured spouse for pain
and suffering, disability, disfigurement, or loss of limb; (2) those
compensating for lost wages, lost earning capacity, and medical and
hospital expenses; and (3) those compensating the noninjured spouse for
loss of services or loss of consortium”). Under Klawonn, what matters is
not whether the parties specifically intended to release a potential
restitution claim, but whether the parties intended to settle the matter in
a fashion with the same legal consequence as a preclusive civil judgment.
Id.; see also Mensing, 250 Iowa at 928, 97 N.W.2d at 150 (noting the
primary question in determining the preclusive effect of a release is what
the parties intended to accomplish by their settlement). As a result, we
conclude Driscoll is entitled to a setoff for the settlement payments made
to each estate.
The State also suggests the delay in asserting the setoff gives rise
to a laches defense. The laches argument was not presented to or ruled
upon by the district court. As a result, the issue has not been preserved
on appeal. See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It
is a fundamental doctrine of appellate review that issues must ordinarily
be both raised and decided by the district court before we will decide
them on appeal.”).
As a result of the above analysis, we conclude Driscoll’s restitution
obligation to the Gibbs estate has been satisfied. His $150,000
restitution obligation is extinguished when the settlement amount of
$165,000 is set off against it. He is entitled to an order of satisfaction of
his restitution obligation as to the Gibbs estate.

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However, we cannot at this time conclude Driscoll’s obligation to
the Empen estate has been satisfied. After setting off the $130,000
settlement against his $150,000 restitution obligation, a balance of
$20,000 remains. Although it appears Driscoll has made some
restitution payments to the Empen estate, the record does not clearly
reveal the total amount of these payments. As a result, on remand the
district court must determine the total amount of payments Driscoll has
made to Empen’s estate beyond the amount of the settlement. The
district court shall order Driscoll to pay Empen’s estate any outstanding
balance due after setting off the $130,000 settlement amount against the
$150,000 court-ordered restitution amount and subtracting any
restitution payments Driscoll has already made. If no balance remains,
Driscoll is entitled to an order declaring his restitution satisfied.
IV. Conclusion.
For the above reasons, we conclude Driscoll is entitled to an order
declaring restitution satisfied with respect to the Gibbs estate and
reverse the district court with respect to that matter. With respect to the
Empen estate, we reverse the district court and remand for further
proceedings to determine any additional amount Driscoll owes under the
restitution order after setting off the settlement amount and subtracting
any restitution payments already made. The district court shall order
Driscoll to pay any outstanding amount due and owing under the
restitution order.
REVERSED AND REMANDED WITH INSTRUCTIONS.

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