Does a person who has had personal property stolen(say, perhaps, a motorcycle) have any civil recourse against the thief, or against a shop knowingly selling the stolen bike(cut into parts)?
Does it matter if that person had insurance?
The term you need to research is the tort of conversion, which is the civil equivalent of theft. You can file a civil suit for conversion. IANAL, although I’m sure one will be in here shortly.
fuzzy…memories…becoming clearer…
I remember now always asking WTF conversion was when I read lawsuit results in the paper…and someone was finally able to actually tell me once, I just forgot all about it until you mentioned it…
no wonder “civil suit theft” failed to turn much up on EBAY.
I mean google…not ebay
As Scarlett67 mentioned, you can sue a thief for conversion, which is actually much broader than theft. It applies to the wrongful taking/ possession of another’s property without good title, even without malice. A man who takes the wrong coat from the coatcheck while leaving a restaurant is technically a convertor, although I doubt you would need to sue him to get it back.
Furthermore, serial conversion is possible, again without malice. He who buys a stolen watch, even unknowingly, is a convertor. But the UCC makes an exception for goods entrusted to a merchant who deals in that type of goods. So if the Bike Shop sells it to someone else, that individual isn’t liable to you anymore. But the Bike Shop and the original thief would be.
As for having insurance, everything above still applies, but the Insurance Company may be the one to sue if they’ve already compensated you for your loss. If you had to meet a certain deductible, or your rates have gone up as a result, then you’re beyond my limited area of expertise.
BTW, IANAL(Y!).
Basically what Opus1 said. If your loss is covered by insurance, then your policy probably says that the insurance company has the right to sue the converter in your place. This is known as “subrogation.” The insurer is subrogated to your rights as against the converter.
Many states have passed laws that let a sentence for conviction of criminal theft include an order for restitution to the victim, saving the victim the hassle of prosecuting a separate civil lawsuit.
If a victim of theft does pursue a civil remedy, that remedy can be either a claim for conversion, which seeks relief in the form of money damages; or a claim for replevin, which seeks the return of specific property. (Some states have adopted more modern names for the old common-law terms “conversion” and “replevin,” such as “civil theft” and “claim and delivery.”)
It would really
There is a civil cause of action, which may or may not be conversion, but will almost certainly be for theft (as spefically defined in your state’s laws). The exact causes of action would depend upon the way in which the bike was originally acquired by the thief; i.e. whether he simply took it or whether he borrowed it with permission and then did not give it back, for example. If you sue the thief, you should specifically ask for punitive damages, which could likely be more in amount than the cost of the bike itself. I would also seek attorney’s fees. I would also file a cause of action under state or federal RICO statutes, which enable you to recover three times the actual damages proven, plus punitive damages, plus attorneys fees, plus three times the normal amount of interest.
You can also be involved on the criminal charges, asking the prosecutor to include a provision for restitution in the sentence (which is typically done, but you can show the value that you lost). Even if you are ordered restitution, you can still file a civil action.
As for suing the shop, there is a cause of action if you can prove they knew the bike was stolen (although this might be difficult). If they did not know, and did not have a reason to know, the bike was stolen, then they would be a bonafide purchaser for value, and would not be liable to you.
As for insurance, typically insurance does not cover intentional acts. If you had comprehensive coverage on the bike, then your insurance company should pay you for your loss.
They will probably expect you to sign over any causes of action to them, up to the amount they paid, but you can generally recover the amount in excess of the amount your insurance company paid, if any.
Of course, every state is different, but these are general principles that are probably applicable almost everywhere.
Nothing in the OP supports a claim for attorney’s fees. Every state in the United States follows the so-called American rule, under which each party in a lawsuit bears its own legal fees, win or lose. A successful plaintiff can recover attorney’s fees only if a contract or a statute authorizes them in a particular case. It seems unlikely that the thief would have entered into a contract with the victim for the theft of the motorcycle. And I don’t know of any state that allows attorney’s fees in a suit for conversion, replevin, or theft. serenitynow, can you cite a case or a statute anywhere that would allow attorney’s fees here?
Sorry, but this one is out in left field. “RICO” stands for the Racketeer Influenced & Corrupt Organizations act, a federal statute aimed at organized crime. Some states have adopted “little RICO” acts. A claim under RICO requires a “pattern of racketeering activity” including at least three predicate acts. Stealing a motorcycle does not qualify. See http://www4.law.cornell.edu/uscode/18/pIch96.html. A RICO claim is extremely difficult.
Why would you? An order for restitution is just as good as a civil judgment. The point of an order for restitution is that it saves the victim the hassle of prosecuting a separate civil lawsuit. And I would think that a thief who is already subject to an order for restitution can use that fact as a defense to a separate civil action, since the civil suit would then result in a double recovery.
Insurance usually does not cover an intentional act by the insured. It usually does cover an intentional act by a thief. Your policy ought to provide coverage whether or not it is a “comprehensive” policy.
well here is the entire situation as it stands now:
My motorcycle was stolen on Thur. night( a 99 Yamaha R1-retail value 7400 + around 4K in racing and performance parts)
The parts showed up on Ebay Saturday morning, with a contact number…which rings to a local bike shop. (This shop has been suspected as being a front for a chop shop, but has never been proven)…I can definately prove the parts listed on Ebay are mine, due to aftermarket changes I have made, as well as damage that occurred to them when I wrecked at North Florida Motorsports Park. There were a few parts missing on Ebay–the exhaust system, the bodywork, the wheels, and the steering damper.
I put pics of my bike up on several websites, but did not put any info up about seeing the parts on Ebay…
today I got a phone call from someone who saw my pics on a website, he saw a bike at a stunt show today, which happened to have the exact same custom tail work done on the body, as well as the exact same exhaust system(which is very distinctive)…the kicker was when he told me what the liscence plate holder on the bike said—it was from the same shop who is attempting to sell my parts on Ebay. I can now account for the body and exhaust(on another bike), and all of the other parts except the wheels(which I can see in one of the Ebay auctions sitting in the picture), all with ties to the same shop.
it seems to be a basically open and shut case, my concerns are that I want the shop gone. I want to sue them civilly and bankrupt them. I want to take their bike inventory and raffle them off to others who have had bikes stolen…if they did not directly steal the bike, they purchased it knowing it was stolen, as they have chopped it up to sell, and I fear that have put my bodywork and exhaust on another frame(perhaps also stolen).
Oh—I should also mention that I do have full coverage, the ins. company will pay retail value plus pay to purchase any other parts I had added, providing I can prove their existence with receipts and pictures(which I can).
I really don’t want the civil suit to pay for my bike, I want it to result in bankruptcy for the shop responsible.
Have you called the police? By putting the parts up for sale on ebay, the case would probably warrant FBI involvement, as well. I would call the local police first, and if you don’t get cooperation from them, then call the FBI. I would also save the ebay pages on your computer immediately, and after talking to the police and confirming with them that it is the appropriate course of action, I would notify ebay that you have reason to believe the parts being sold on their site in auction number ### are stolen.
I hate to say it, but the civil action would probably be more expensive than the bike, unless you can absolutely prove that the bike shop knew that the bike in question was stolen. That is not easy to do, and I would let the police build your case for you, rather than having to pay to do it yourself.
Good luck, and let us know how it turns out.
ok recovered the bike in pieces…owner of shop is in jail…he lied the entire time and kept getting caught(where the engine was, when he took delivery, etc etc)…
as I understand civil law, I wouldn’t have to prove beyond a reasonable doubt that they knew it was stolen, just have to prove my case better than they do(similar to how OJ lost civil case but won the criminal)…I printed the pages on Ebay and gave them to the cops…I actually walked in the door with the first officer to arrive to make the ID of the parts.
Good job! You might want to get a lawyer to file suit. If you sue this guy before the criminal charges are disposed of, then you can depose him and (depending on the laws in your state) force him to plead the fifth to a lot of very specific questions. In civil cases, some states hold that taking the fifth leads to an inference that the answer would have been unfavorable, so obviously it would be to your benefit to depose him quickly if that is the law in your state.
The other advantage of hiring a layer is that you might be able to get them to take the case on a contingency, which would mean you are not out of pocket for any expenses. On the whole, not a bad deal, especially if collection is going to be tricky. I would stay in touch with the police (it sounds like you have a good department there, since a lot of jurisdictions would not make such a case a priority) and perhaps there will be some information forthcoming there regarding what this guy knew, or knows, and whether he has done this before.
Keep us posted!
I think they jumped on this case quickly because the shop is suspected around town(in the sportbike community, anyway) of being a chop shop. Maybe this is the first time they have been caught red-handed though.
I wonder if the business is up for sale cheap…
I probably could if I wanted to do the research. Certainly RICO does, and many states do where the litigation is brought about by the bad faith of the losing party. Fencing stolen merchandise would certainly fall into this category. Under the facts stated, I don’t think getting an award of attorney’s fees is outside the realm of possibility. Of course, RICO aside, YMMV by state.
I’m a left field kind of guy. 
Actually, I think the Supreme Court disagrees with you on the organized crime part. In H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229 (1988) the court said that the idea that the RICO is limited to organized crime “finds no support in the act’s text, and is at odds with the tenor of its legislative history.” Also, I would argue that a chop shop falls within the definition of organized crime.
Did they change this? IIRC 18 U.S.C. 1961 says a pattern of racketeering requires at least two acts of racketeering activity.
Are you sure? Most states that have RICO statutes adopt the federal predicate crimes (and/or their state’s equivalent) and also include theft.
There are at least three potential predicate acts involved in stealing and selling motorcycle parts on the federal level that are specifically enumerated in 1961:
18 U.S.C. 2312 (transport of stolen vehicles)
18 U.S.C. 2313 (receipt of stolen vehicles)
18 U.S.C. 2321 (sale of vehicle parts with id #s removed, which covers many stolen parts that are fenced)
The interstate commerce provisions are removed by most states, and the law is clear that the selling of each individual part or the receipt of each individual part is a separate predicate act. Further, if this is indeed a chop shop, then there are doubtlessly numerous other acts that are arguably predicate acts.
There are many reasons one would prefer a civil judgment to a restitution order. Here are just a few:
First, an order of restitution may or may not ever come, and may be worthless when it does. If a person is sentenced to twenty years in prison, you will be lucky if he ever gets around to paying restitution, or can afford to. Meanwhile, his company’s assets are being depleted. A civil judgment allows the victim to lien assets and to increase the likelihood of recovery.
Second, the amount of restitution is often less than the amount of the actual loss, and will not include provisions for punitive damages or general trouble or expense. A punitive damage award against a defendant with a history of crime could be enormous. At least with RICO you get three times your proven damages.
Third, vengence. Not the most noble perhaps, but certainly a consideration. Jax wants to put this shop out of business, and rightfully so. He won’t do that with a $5,000 restitution order. Also, he may be able to find out who the chop shop got the motorcycle from and then he could sue them as well. (A long shot, but stranger things have happened).
There are also a number of strategic reasons to file a suit sooner rather than later, but that is another topic for another day.
Double recovery is not really an issue since the amount of the civil judgment is offset by restitution payments that are made.
A point well taken. My original statement was not clear that I was thinking of the wrongdoer’s insurance policy. The victim’s policy would cover theft (assuming it was provided for in the coverage, which varies by state and by company, I think), but the tortfeasor’s (or more aptly criminal’s) policy would most likely exclude his intentional acts as well as intentional acts by anyone else.
No, it wouldn’t. The bad-faith exception to the American rule on attorney’s fees is limited to bad faith in the conduct of litigation. Pre-litigation bad faith cannot support an award of fees. Attorney’s fees are unavailable here unless you assume facts beyond the OP.
I said only that RICO is “a federal statute aimed at organized crime,” not that RICO is limited to organized crime. RICO can certainly apply to crimes not committed by the mob. But the courts have been extremely cautious about expanding RICO’s scope. Again, RICO would not apply unless you assume facts beyond the OP.
Sorry, my mistake, it is two predicate acts and not three.
Yes it would. 
The “American Rule” is a starting point, not an ending point. It is a baseline that is flooded with exceptions. Florida alone has over 200 statutes that provide for an award of attorney’s fees for the winning party. Pre-litigation bad faith can often support an award of attorneys fees. It’s not worth your spending a lot of time researching, but I would like to see authority to the contrary if you have it at hand.
Fair enough. With regard to expanding RICO’s scope, I think the post Sedima record is pretty clear. If RICO’s language is plain, it controls; if ambiguous in sytax or in context, the construction that would provide for enhanced sanctions and new remedies is to be adopted.
The question is not whether one would have to assume facts beyond the OP to win on each cause of action. The question is whether the facts known would provide a good faith basis for making those claims. I think it would on all counts. To get a proper verdict in this case would take a lot of discovery and whole lot of work, not a simple recitation of what we know so far.
You just have to think like a plaintiff 
. Hopefully, Jax will let us know how he handles it. Maybe by the time his case is over and done, we will have finished arguing the issue of attorney’s fees and RICO.
Sure. I just litigated this issue in federal court last year: “A court’s inherent power to award attorney fees pursuant to the bad faith exception ‘depends not on which party wins the lawsuit, but on how the parties conduct themselves during the litigation.’” Lamb Eng’g & Constr. Co. v. Neb. Pub. Power Dist., 103 F.3d 1422, 1437 (8th Cir. 1997) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 53 (1991)). A court’s power to award attorneys’ fees as a sanction for bad-faith conduct therefore does not extend to pre-litigation conduct. Id. A court may not base an award of attorneys’ fees “on the conduct that led to the substantive claim.” Id. The bad-faith doctrine is “designed to punish the abuse of the judicial process rather than the original wrong,” so that “[a] person who harms another in bad faith is nonetheless entitled to defend a lawsuit in good faith” without incurring additional liability for fees. Id. at 1435.