The South Dakota Supreme Court deals a blow to victim's rights (Legislators, are you listening?)
Crime victims are not entitled to full replacement value for property that is damaged or destroyed, the South Dakota Supreme Court ruled Wednesday.Read it all here. And am I the only one who thinks that's crazy talk? This one is going to need to be fixed in the legislature, and fast.
The decision came in a Custer County case that involved Jerrold Ray Martin. He pleaded guilty last year to destroying property owned by Michael and Paula Kear of Buffalo Gap.
After Martin got into an argument with the couple at a bar, he went to their home and destroyed virtually everything in it on Christmas Eve 2004. Among things smashed and destroyed were bookcases, a computer, antique lamps, several guns, an aquarium, an oriental rug and a couch.
“None of the listed values were a reflection of fair market value, nor did they contain any diminution for wear and tear,” wrote Chris Beesley, Martin’s attorney.
The Kears are not owed the original prices they paid for things or current prices to replace them as new, Beesley continued.
The Supreme Court agreed, sending the issue back to Tice for refigured damages
Deputy Attorney General Craig Eichstadt had argued that restitution should place people in basically the same position as they were in before becoming crime victims.
“It would be unjust to force them to accept secondhand or substandard items as a replacement for their destroyed property,” the state lawyer wrote.
“The victims are not being unjustly enriched, but it would be unjust to force them to accept secondhand or substandard items as replacement for destroyed property,” Eichstadt added.
If, for example, I have a couple of juvenile delinquents in the neighborhood who lack for parenting, and they decide to come in and destroy my belongings, aside from making sure they're incarcerated, I'm going to turn in a claim for my property to my insurer.
I carry replacement value coverage for my property, so aside from my deductible, I'll be made whole. But now, it's my insurer (and their premium payers) who will be screwed. Because while they'll pay replacement to me, the State Supreme Court is saying that all they can possibly recover from the criminals is A.C.V. (Actual Cash Value), which can leave a huge gap that all premium payers will have to make up for in higher insurance premiums.
And what about the people who carry no insurance, or only actual cash value coverage? They're even worse off. Because now they won't at least have an insurer going to bat for them. And now they're going to be victimized twice.
While the court is noting that they can recover the actual cash value of the property, from spending several years as an investigator for the Division of Insurance, and over 15 years as an auctioneer (who has done personal property appraisals myself), I can tell you with first hand knowledge that while something might be worth "X" it is not a guarantee that you can find one of equal age and wear for that cost. So, while an adjuster or appraiser might value your big screen TV at $500 because of age and depreciation, just try to go buy one in Buffalo Gap (as the victims in this case were from) for that price. It isn't going to happen.
And so not only are they left without their property because of a crime, now they can't afford to replace it because of a system that is more interested in being fair to the criminal than the victim.
Believe me, as a member of a family being reimbursed over $160,000 (taken criminally) at the nominal rate of $250 a month, I've got plenty of issues with how victims are taken care of in South Dakota.
Hopefully legislators can fix this problem before many other victims are re-victimized by the system that's supposed to support them.