Tso v. Nevarez

1
UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEW MEXICO
ANDRES A. NEVAREZ, 	Case No. 7-07-11731 MA
Debtor.
__________________________________________________________________________
CALVERT TSO,
Plaintiff,
v. 	Adversary No. 07-1131 M
ANDRES A. NEVAREZ,
Defendant.
MEMORANDUM OPINION
Plaintiff, Calvert Tso, by and through his attorney of record, Richard R. Marquez, filed a
Complaint to Determine Dischargeability of Debts (“Complaint”) against Defendant, Andres
Nevarez, asserting that certain damages suffered by Plaintiff as a result of a motor vehicle
collision in which Defendant was the driver are non-dischargeable under 11 U.S.C. § 523(a)(6)
as arising from Defendant’s willful, malicious injury to Plaintiff. 	Defendant filed a Motion for
Summary Judgment with supporting memorandum and affidavit, asserting that in accordance
with Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L. Ed.2d 90 (1998), the accident
which forms the basis of Plaintiff’s Complaint cannot support a determination of non-
dischargeability under 11 U.S.C. § 523(a)(6) when Defendant did not intend to injure Plaintiff.
Plaintiff opposes the Motion, asserting that summary judgment should not be granted
when an issue of intent is central to the cause of action. 	Plaintiff further argues that willful and
malicious injury under 11 U.S.C. § 523(a)(6) is not limited to situations in which a debtor
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1See In re Patch, 526 F.3d 1176, 1180 (8th Cir. 2008)(stating that it is sufficient for
purposes of § 52(a)(6) “[i]f the debtor knows that the consequences are certain, or substantially
certain to result from his conduct.”)(citing Geiger v. Kawaauhau (In re Geiger), 113 F.3d 848,
852 (8th Cir. 1997)(en banc)(citing the Restatement (Second) of Torts § 8A, cmt. A (1965)),
aff’d, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998)).
2 See Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). (“[A]
party seeking summary judgment always bears the initial responsibility of informing the . . .
court of the basis for its motion, and . . . [must] demonstrate the absence of a genuine issue of
material fact.”).
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intends to bring about the consequences of his or her actions, but also encompasses intentional
acts that the debtor knows are certain or substantially certain will result in injury. 1 After
consideration of the Defendant’s Motion, the Plaintiff’s response thereto, and the supporting
affidavit and documents offered by both parties, the Court finds that the evidence submitted does
not establish that Plaintiff’s claim is the result of Defendant’s willful and malicious injury within
the meaning of 11 U.S.C. § 523(a)(6). Consequently, the Court will grant Defendant’s Motion.
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate when there are no genuine issues of material fact, and
the moving party is entitled to judgment as a matter of law. Rule 56(c), Fed.R.Civ.P., made
applicable to bankruptcy proceedings by Rule 7056, Fed.R.Bankr.P. 	The party requesting
summary judgment must demonstrate to the Court that the undisputed facts entitle the movant to
judgment as matter of law. 2 The party opposing summary judgment may not rest upon
allegations or denials contained in its own pleading, but must “set out specific facts showing a
genuine issue for trial.” Rule 56(e)(2), Fed.R.Civ.P.. To successfully defend against a motion for
summary judgment, the affidavits and/or other documentation offered by the party opposing
summary judgment must contain probative evidence that would allow a trier of fact to find in
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3Anderson v. Liberty Lobby, 477 U.S. 242, 249-250, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986).
4Harris v. Beneficial Oklahoma, Inc., (In re Harris), 209 B.R. 990, 995 (10th Cir. BAP
2007)(“When applying this standard, we are instructed to ‘examine the factual record and
reasonable inferences therefrom in the light most favorable to the party opposing summary
judgment.’ ”))Wolf v. Prudential Ins. Co. of America, 50 F.3d 793, 796 (quoting Applied
Genetics Int'l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir.1990)(internal
quotation marks omitted); Henderson v. Inter-Chem Coal Co., 41 F.3d 567, 569 (10 th Cir.
1994)(stating that the court must “view all facts and any reasonable inferences that might be
drawn from them in the light most favorable to the nonmoving party . . .”).
5That section provides, in relevant part:
Any person who drives any vehicle carelessly and heedlessly in willful or wanton
disregard for the rights or safety of others and without due caution and
circumspection and at a speed or in a manner so as to endanger or be likely to
endanger any person or property is guilty of reckless driving.
N.M.S.A. 1978 § 66-8-113(A)(Repl. Pamp. 2004)
6Those sections provide, in relevant part:
B. Great bodily harm by vehicle is the injuring of a human being . . . in the
unlawful operation of a motor vehicle.
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Defendant’s favor.3 In determining whether summary judgment should be granted, the Court
must view the facts in the light most favorable to the party opposing summary judgment. 4
UNDISPUTED FACTS
It is not disputed that Defendant and Plaintiff were in a serious motor vehicle collision on
October 5, 2005 in which Defendant was driving, that Plaintiff was Defendant’s passenger, and
that Plaintiff was seriously injured as a result. See Complaint, ¶ 4; Answer ¶ 3; Affidavit of
Andres Nevarez (acknowledging that he gave Mr. Tso a ride, and that he remembers opening his
eyes after the auto accident and waking at the hospital). 	Nor does Defendant dispute that he
faces criminal charges for two counts of great bodily injury by vehicle resulting from reckless
driving in violation of N.M.S.A § 66-8-113 (Repl. Pamp. 2004) 5 contrary to N.M.S.A. 1978 §
66-8-101(B) and (C) (Repl. Pamp. 2004) 6, and one count for failure to stop for a red light
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C. A person who commits . . . great bodily harm by vehicle . . . while violating
Section 66-8-113 NMSA 1978 is guilty of a third degree felony and shall
be sentenced pursuant to the provisions of Section 31-18-15 NMSA 1978,
provided that violation of speeding laws as set forth in the Motor Vehicle
Code . . . shall not per se be a basis for violation of Section 66-8-113
NMSA 1978.
N.M.S.A. 1978 § 66-8-101(B) and (C) (Repl. Pamp. 2004).
7That section provides, in relevant part:
A. The driver of any vehicle shall obey the instructions of any official traffic-
control device applicable thereto placed in accordance with the provisions of
Article 7 of Chapter 66 NMSA 1978, unless otherwise directed by a traffic or
police officer[.]
N.M.S.A. 1978 § 66-7-104(A) (Repl. Pamp. 2004).
8See Mitsubishi Motors Credit of America, Inc. v. Longley (In re Longley), 235 B.R. 651,
655 (10 th Cir. BAP 1999)(stating that “[i]n the Tenth Circuit, the phrase ‘willful and malicious
injury’ has been interpreted as requiring proof of two distinct elements - that the injury was both
‘willful’ and ‘malicious.’”).
9See also, Coats State Bank v. Grey (In re Grey), 902 F.2d 1479, 1481 (10th Cir.1990)
(“maliciousness is established if the debtor possesses actual knowledge, or it is reasonably
foreseeable, that his conduct will result in injury to the creditor” ).
4
contrary to N.M.S.A. 1978 § 66-7-104 (Repl. Pamp. 2004). 7 See Complaint, ¶ 5; Answer ¶ 5.
DISCUSSION
Pursuant to 11 U.S.C. § 523(a)(6), debts resulting from a debtor’s willful and malicious
injury to another are not dischargeable in the debtor’s bankruptcy proceeding. 11 U.S.C. §
523(a)(6). 	To be non-dischargeable under this section, the injury must be both willful and
malicious.8 The “willful” component of 11 U.S.C. § 523(a)(6) requires “a deliberate or
intentional injury, not merely a deliberate or intentional act that leads to injury.” Geiger, 523
U.S. at 61 (emphasis in original). “Malicious” requires that an intentional act be “performed
without justification or excuse.” America First Credit Union v. Gagle (In re Gagle), 230 B.R.
174, 181 (Bankr.D.Utah 1999).9 Plaintiff raises two arguments in opposition to the Motion: 1)
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10See Gelb v. Bd. of Elections, 224 F.3d 149, 157 (2nd Cir. 2000)(“[S]ummary judgment is
generally inappropriate where questions of intent and state of mind are implicated.”); Bryant v.
Tilley (In re Tilley), 286 B.R. 782, 792 (Bankr.D.Colo. 2002)(acknowledging that in
dischargeability litigation “great circumspection is required where summary judgment is sought
on an issue involving state of mind.”).
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that a debtor’s intent is central to a non-dischargeability action for willful and malicious injury
under 11 U.S.C. § 523(a)(6) that should not be determined on summary judgment when
Defendant’s credibility is at issue; and 2) that willful and malicious injury under 11 U.S.C. §
523(a)(6) includes actions the debtor knows will cause substantially certain consequences.
Whether Issues of Intent Preclude Summary Judgment.
In support of his Motion, Plaintiff filed an Affidavit stating that he has no memory of the
events leading up to the auto accident, nor the auto accident itself, that he had no ill will toward
Defendant Tso and had no intention to injure him. See Affidavit of Andres Nevarez, pp. 1 and 2.
Plaintiff argues that these self-serving statements fail to establish a lack of willful and malicious
intent. 	Further, Plaintiff attached a copy of Defendant’s deposition testimony wherein
Defendant invoked his Fifth Amendment right. 	Plaintiff asserts that by refusing to answer
questions at the deposition, but claiming no memory of the accident in his Affidavit in support of
the Motion, Defendant has taken inconsistent positions, raising questions about his credibility.
In general, questions involving a defendant’s intent or state of mind are not susceptible to
summary judgment.10 Nevertheless, non-dischargeability actions under 11 U.S.C. § 523(a)(6)
may be susceptible to summary judgment when the facts and circumstances surrounding a
debtor’s actions leave no room for a trier of fact to conclude that the debtor wilfully and
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11See, e.g., In re Patch, 526 F.3d 1176 (8th Cir. 2008)(reversing determination granting
summary judgment to plaintiff, holding that no rational trier of fact could have found defendant’s
action/inaction willful within the meaning of § 523(a)(6)); Guthrie v. Kokenge (In re Kokenge),
279 B.R. 541 (Bankr.E.D.Tenn. 2002)(granting defendant’s motion for summary judgment in §
523(a)(6) action).
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maliciously harmed the plaintiff. 11
As discussed below, reckless driving does not rise to the level of willful and malicious
intent necessary to a non-dischargeability action under 11 U.S.C. § 523(a)(6) when there is no
evidence presented that Defendant had any ill will toward Plaintiff, nor that Defendant had any
belief that the consequences of his actions were substantially certain to occur. 	Plaintiff has
offered no evidence that Plaintiff disliked Defendant or intended to injure Defendant, or himself.
Any perceived inconsistency between Defendant’s deposition testimony in refusing to answer
questions that might be used as evidence against him in subsequent criminal proceedings as an
admission that he was driving recklessly and his Affidavit stating that he has no recollection of
the events leading up to the accident nor the accident itself is insufficient to raise a genuine issue
of material fact relevant to Plaintiff’s non-dischargeability action under 11 U.S.C. § 523(a)(6).
Whether Defendant’s Reckless Driving Falls Within the Scope of 11 U.S.C. § 523(a)(6).
Plaintiff attached a copy of the police report filed as a result of the collision which
reported that the speed limit for the road upon which Defendant was driving was 35mph, that
Defendant was traveling at an estimated pre-impact speed of 47mph, that he proceeded through a
red light, and that Defendant was driving in a reckless manner. 	See Exhibit A attached to
Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary Judgment.
Plaintiff contends that because Defendant was driving twelve miles over the speed limit and ran
a red light, it was substantially certain that an automobile collision would occur and cause
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12See, e.g., Sparks v. Adams (In re Adams), 147 B.R. 407 (Bankr.W.D.Mich.
1992)(finding that debtor’s actions in speeding and accelerating through red light at congested
intersection were willful and malicious within the meaning of 11 U.S.C. § 523(a)(6) since debtor
should have known that his acts were substantially certain to result in serious injury to another);
Edgman v. Farfalla (In re Farfalla), 132 B.R. 628 (Bankr.D.Neb. 1991)(holding that state court
conviction of debtor for felony motor vehicle homicide could be given collateral estoppel effect
to establish that the resulting debt to victim’s estate arose from debtor’s willful and malicious
injury within the meaning of 11 U.S.C. § 523(a)(6)).
13See, e.g., In re Fate, 100 B.R. 141 (Bankr.D.Mass. 1989)(holding that debtor who drove
recklessly and without insurance acted with malice, but not with willfulness necessary to a non-
dischargeability claim under 11 U.S.C. § 523(a)(6); acts committed with reckless disregard for
the safety of another is insufficient); Oregon Ford, Inc. v. Claburn, 89 B.R. 629 (N.D.Ohio
1987)(reversing bankruptcy court’s determination that debt arising from auto accident that
resulted from debtor’s violation of statute proscribing reckless driving was non-dischargeable
under § 523(a)(6)).
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serious injury to a passenger or other drivers, and that such objective substantial certainty of
injury is sufficient to sustain a cause of action under 11 U.S.C. § 523(a)(6). 	This Court
disagrees.
Prior to Geiger, some courts held that reckless driving could support a non-
dischargeability action under 11 U.S.C. § 523(a)(6) 12
, while others concluded that reckless
driving did not meet the requirements that a defendant’s actions be both willful and malicious.13
Courts continuing to struggle with the “willfulness” element under 11 U.S.C. § 523(a)(6) after
Geiger have articulated a subjective intent standard that results in non-dischargeability either
when the debtor has the subjective intent to cause harm, or when the debtor knows that harm is
substantially certain to occur. See, e.g., In re Su, 290 F.3d 1140, 1145 n.3 (9th Cir. 2002); In re
Markowitz, 190 F.3d 455, 464 (6th Cir. 1999)(holding that “unless ‘the actor desires to cause the
consequences of his act, or . . . believes that the consequences are substantially certain to result
from it,’ he has not committed a ‘willful and malicious injury’ as defined under §
523(a)(6).”)(quoting RESTATEMENT (SECOND) OF TORTS § 8A (1964)). 	This standard
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falls short of an objective standard, which would disregard the debtor’s state of mind and
consider whether a reasonable person would have known that the actions at issue were
substantially certain to cause injury. Su, 290 F.3d at 1146. 	This result is consistent with the
Tenth Circuit’s position in In re Compos, 768 F.2d 1155, 1158 (10 th Cir. 1985) that rejected the
“reckless disregard” standard, defining “‘willful’ for purposes of § 523(a)(6) to mean deliberate
or intentional.’”
Here, even though it seems reasonable to expect that an accident is likely to occur when a
driver speeds and runs a red light, Plaintiff has presented no evidence that Defendant knew the
harm to Plaintiff was substantially certain to occur. Thus, even under the substantial certainty
standard, Plaintiff has not raised a genuine issue of material fact that would defeat Defendant’s
Motion. Non-dischargeability under 11 U.S.C. § 523(a)(6) was not intended to cover reckless or
negligent behavior. Geiger, 523 U.S. at 64 (“[D]ebts arising from recklessly or negligently
inflicted injuries do not fall within the compass of § 523(a)(6).”). 	Finding that the debt at issue
is non-dischargeable based on an inference that the Defendant knew or should have known that
his reckless driving would result in injury inappropriately expands the scope of non-
dischargeability under 11 U.S.C. § 523(a)(6) to include acts of negligence under an objective,
reasonable person standard.
The circumstances of this case are similar to In re Kokenge, 279 B.R. 542
(Bankr.E.D.Tenn. 2002). 	In Kokenge, the debtor drove at speeds in excess of 90 m.p.h. down a
winding, snowy mountain, while allegedly racing another car, resulting in injuries to the
passengers. Id. at 543. In granting the debtor’s motion for summary judgment, the Court rejected
plaintiffs’ invitation to infer, based on the “outrageousness” of the debtor’s driving, that the
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debtor “willfully” wrecked his vehicle and caused injury to plaintiffs. Id. at 544. 	The
bankruptcy court found that the plaintiffs’ evidence showed “only that the Debtor intentionally
drove his car in an irresponsible and unjustified manner at high speeds while intentionally racing
on a winding mountain road.” 	Id. 	Because plaintiffs offered no evidence that the debtor either
intended to injure plaintiffs or believed that the injury was substantially certain to occur as a
result of his actions, the court granted the debtor’s motion for summary judgment. Id.
In this case the police report establishes that Defendant drove in excess of 10 miles per
hour faster than the posted speed limit, ran a red light, and collided with another car. 	Driving in
such a manner is undoubtedly reckless, but absent any evidence that Defendant believed
Plaintiff’s injuries were substantially certain to occur as a result of his action, Defendant is
entitled to summary judgment.
Based on the foregoing, the Court concludes that Defendant’s Motion for Summary
Judgment should be granted. An order and judgment consistent with this memorandum opinion
will be entered accordingly.
_______________________________________
MARK B. McFEELEY
United States Bankruptcy Judge
Date entered on docket: February 25, 2009
COPY TO:
Richard R. Marquez 	Steven J. Clark
Attorney for Plaintiff 	Attorney for Defendant
503 Slate Ave. NW 	PO Box 1108
Albuquerque, NM 87102 	Peralta, NM 87042
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