KATHY A. SURRATT-STATES, Chief Judge.
The matter before the Court is the Complaint to Determine the Dischargeability of
Defendant James Arthur Clampitt (hereinafter "Defendant") filed a Voluntary Petition under Chapter 7 of the Bankruptcy Code on January 18, 2011. Defendant is a 41 year old attorney licensed to practice law in the State of Missouri. He is approximately 5'10" and 235 lbs. On June 13, 2010, Defendant weighed over 260 lbs. Defendant has represented clients in several Driving While Intoxicated (hereinafter "DWI") matters in the past and testified that he has received DWI training that he has used in defense of his clients. Defendant testified that in his career, he has handled between 50 and 100 DWI cases.
On July 8, 2011, Plaintiffs Ashley Cobb, by and through her Next Friend, Jan Cobb, Marci Cobb and Gemma Carrol (hereinafter "Plaintiffs") filed the Complaint seeking to except any debt owed by Defendant for the wrongful death of Richard Cobb (hereinafter "Decedent") pursuant to Section 523(a)(6) or (a)(9). Plaintiff Ashley Cobb is Decedent's 14 year old daughter, Jan Cobb is a relative of Decedent, Marci Cobb is the Decedent's wife of only five (5) weeks and Gemma Carrol is Decedent's mother. Decedent is also survived by his 15 year old son Matthew Cobb.
At approximately 4:30 p.m. on June 13, 2010, Defendant and Ms. Angela Bagley
While at Dos Arcos, Defendant sent numerous text messages. A few of those text messages were sent to and received by Ms. Sarah Gleeson (hereinafter "Ms. Gleeson"). Ms. Gleeson was at Dos Arcos during a portion of the time that Defendant was there with Ms. Bagley but Ms. Gleeson did not dine with Defendant and Ms. Bagley. Defendant and Ms. Gleeson got into an altercation-of-sorts via text message.
Defendant received the bill for his and Ms. Bagley's meal at approximately 9:09 p.m. Defendant and Ms. Bagley departed Dos Arcos after Defendant paid the bill by credit card and then proceeded to Ms. Bagley's home in Defendant's 2007 Chevrolet Suburban, a full-size Sports Utility Vehicle (hereinafter "SUV"). At approximately 9:15 p.m., Defendant received a text message from Ms. Gleeson asking Defendant to return to Dos Arcos to talk to
On route to Dos Arcos, Defendant drove on North Jefferson Street in Mexico, Missouri. At approximately 9:30 p.m., Decedent was operating a riding lawnmower in the 800 block of North Jefferson Street in Mexico, Missouri.
Defendant struck the riding lawnmower while Decedent was operating it. There is no evidence that Defendant applied his brakes before the crash occurred. The impact of the SUV and the riding lawnmower caused the riding lawnmower to be pushed back at least 31 feet and 10 inches.
Decedent was responsive on the scene and became considerably combative with the Emergency Medical Technicians (EMTs).
The airbags in the SUV did not activate at any time due to the impact with the riding lawnmower.
The loud crash caused numerous residents to exit from their homes. One witness testified that he heard a riding lawnmower, then he heard a crash that was quite loud — loud enough to overpower the fans and tv in his home — then he no longer heard the riding lawnmower.
Defendant arrived at Dos Arcos and Ms. Gleeson was sitting on the tailgate of her friend Christine Mahler's truck. Christine Mahler and Mike Finch were also sitting on the tailgate of the truck. Defendant pulled up such that the passenger side of the SUV was closest to the tailgate of Christine Mahler's truck, however, Defendant stopped the SUV such that the front was past where Ms. Gleeson, Christie Mahler and Mike Finch were seated. Defendant remained in the SUV. Ms. Gleeson spoke to Defendant first through the passenger-side window and then through the driver-side window.
In an interview held on July 7, 2010, Ms. Gleeson informed Detective Fuenfhausen that the amount of alcohol in the drinks at Dos Arcos "differs" from time to time.
Defendant left Dos Arcos and returned home to retrieve his daughter Abigail Clampitt's (hereinafter "Abigail") laptop. Abigail resides with her mother, Defendant's ex-wife. Abigail asked Defendant to bring her the laptop via text message sent at approximately 9:23 p.m. that evening.
Defendant then proceeded to Rebecca Lottinville's (hereinafter "Ms. Lottinville") house and arrived at approximately 10:25 p.m.
At approximately 6:26 a.m. on June 14, 2010, Defendant sent the following text message: "Very hung over my friend ... Not gonna make it ... Very sorry"
Defendant brought the SUV to be repaired by Pearl Motor Company between 7:30 and 8:00 a.m. on June 14, 2010. Defendant informed Pearl Motor Company that the damage was caused when his daughter was driving with Defendant in the SUV.
Detective Fuenfhausen immediately proceeded to Defendant's law office. Defendant denied being in the area of the accident.
On July 2, 2010, Defendant faxed an Affidavit to the Mexico Department of Public Safety in which Defendant essentially states that he was momentarily distracted by his phone while he was driving on North Jefferson, at which time his vehicle "felt like it struck the curb of the street."
Defendant testified that from 2006 through 2011, he had a prescription for Lexapro (Escitalopram). Lexapro is an anti-depression and anti-anxiety medication.
Not a single witness interviewed or deposed indicated that they saw Defendant appear intoxicated, to the inclusion of Ms. Bagley who was with Defendant at Dos Arcos when he consumed the rum and coke drinks. Because Defendant left the scene of the crash, no Blood Alcohol Content Test (hereinafter "BAC Test") or other chemical analysis was ever conducted. As a result of this collision involving Decedent, Defendant was charged and indicted with a Class B Felony of Involuntary Manslaughter in the First Degree, Class C Felony of Involuntary Manslaughter in the First Degree and Class D Felony of Leaving the Scene of a Motor Vehicle Accident.
Defendant submitted his responses to Plaintiffs' interrogatories, requests for production of documents and requests for
Plaintiffs argue that they are entitled to an adverse inference where Defendant previously asserted the Fifth Amendment because Plaintiffs argue that Defendant is using the Fifth Amendment as a sword not a shield. Plaintiffs argue that Defendant was only willing to be deposed and appropriately respond to Plaintiffs' discovery requests once Defendant knew the deposition testimony of the other witnesses and such, Defendant could craft his testimony. Next, Plaintiffs argue that in any scenario presented by Defendant, there is sufficient evidence to determine that Defendant was intoxicated when he struck Decedent after drinking an amount equivalent to five (5) alcoholic beverages: either Defendant was too drunk from the use of alcohol or too high from the use of Lexapro, or both, to realize his actions or care; Defendant was aware of his actions so he fled the scene because he did not want any witnesses; or Defendant was intoxicated but through his DWI experience, Defendant knew that if he stopped, he ran the risk of a chemical analysis being conducted and therefore he fled the scene of the crash. Plaintiffs argue that the evidence presented is sufficient to meet the required standards.
Defendant argues that in order for Plaintiffs to obtain a negative inference, there must be a prima facie finding that the inference is proper and the circumstances for such a finding do not exist. Defendant further argues that there are no witnesses of intoxication and as such, Plaintiffs cannot meet the required standard to except a debt from discharge pursuant to Section 523(a)(9). Further, there is no evidence of any wilful or malicious intent against Decedent in that Defendant had never met Decedent as such, Plaintiffs cannot meet the required standard to except a debt from discharge pursuant to Section 523(a)(6).
This Court has jurisdiction of this matter pursuant 28 U.S.C. §§ 151, 157 and 1334 (2011) and Local Rule 81-9.01(B) of the United States District Court for the Eastern District of Missouri. This is a core proceeding under 28 U.S.C. § 157(b)(2)(I) (2011). Venue is proper in this District under 28 U.S.C. § 1409(a) (2011).
The parties raised preliminary matters which the Court will address at this time. The first such matter is whether this Court should draw a negative inference from Defendant's sporadic invocation of the Fifth Amendment during discovery. The second matter is whether some of the questions posed to Ms. Bagley and Ms. Gleeson during their depositions were proper. The Court will address each matter in turn.
Defendant submitted his responses to Plaintiffs' interrogatories, requests for production of documents and requests for admissions on March 30, 2012. Defendant invoked his Fifth Amendment privilege in response to several of Plaintiffs' requests. After Plaintiffs deposed numerous witnesses, Defendant changed his position and on November 1, 2012, answered several
In a civil proceeding, it is permissible, not mandatory, for the trial court to draw a negative inference from a party's invocation of the Fifth Amendment. Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1557, 47 L.Ed.2d 810 (1976); In re Carp, 340 F.3d 15, 23 (1st Cir.2003) (citing Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 678 (1st Cir.1996)). Ultimately, the trial court must determine whether a party's actions warrant a negative inference. In re Carp, 340 F.3d at 23.
Here, the Court concludes that while Defendant certainly used the Fifth Amendment as a sword, Plaintiffs were nonetheless able to present their evidence. Plaintiffs were able to depose the witnesses they sought to depose. The testimony of the witnesses who have personal relationships with Defendant was not likely going to be different from that which was ultimately given. Defendant's testimony was in large part consistent with the affidavit he provided to the Mexico Department of Public Safety on July 2, 2010. Defendant's discovery responses and deposition testimony ultimately speak to Defendant's credibility and as such, this Court will not draw a negative inference where Defendant initially invoked the Fifth Amendment. So too, the Court will not strike Defendant's testimony for the same reason.
Upon the admission of Ms. Bagley's September 28, 2012 Deposition, Plaintiffs' Exhibit 13, Ms. Bagley's November 1, 2012 Deposition, Plaintiffs' Exhibit 14, and Ms. Lottinville's September 28, 2012 Deposition, Plaintiffs' Exhibit 20, Defendant requested that this Court rule on the objections raised by counsel for Defendant during those depositions. Counsel for Defendant had no basis to make any objection during those three depositions because counsel for Defendant only represents Defendant; counsel for Defendant does not represent Ms. Bagley or Ms. Lottinville. Ms. Bagley was not represented by counsel during her depositions. Neither was Ms. Lottinville. Neither Ms. Bagley nor Ms. Lottinville at any point objected to any of the questions posed by Plaintiffs' counsel. Rather, during Ms. Bagley's September 28, 2012, counsel for Defendant objected to questions and thereafter made a leading statement of why he did not want Ms. Bagley to answer. When counsel for Plaintiffs would instruct Ms. Bagley to answer, she would refuse.
To except a debt from discharge under Section 523(a)(9), a creditor must prove the following:
11 U.S.C. § 523(a)(9) (2011); In re Pair, 264 B.R. 680, 684 (Bankr.D.Idaho 2001). An action under Section 523(a), to the inclusion of Section 523(a)(9), must be proven by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 289, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991).
Under bankruptcy law, the unlawful operation of a motor vehicle while intoxicated is determined by substantive state law. In re Barnes, 266 B.R. 397, 402-03 (8th Cir. BAP 2001) (citing Whitson v. Middleton (In re Middleton), 898 F.2d 950, 952 (4th Cir.1990)). There is no requirement that the debtor be criminally convicted of unlawful operation of a motor vehicle. In re Pair, 264 B.R. at 684. Under Missouri law, a person unlawfully operates a motor vehicle if that individual drives a motor vehicle while in an intoxicated or drugged condition. Mo.Rev.Stat. § 577.010.1 (2011). "A person is in an `intoxicated condition' when he is under the influence of alcohol, a controlled substance, or drug, or any combination thereof." Mo. Rev.Stat. § 577.001.3 (2011). A person is under the influence of alcohol when "his use of alcohol impairs his ability to operate an automobile." State v. Schroeder, 330 S.W.3d 468, 475 (Mo.2011) (citations omitted).
Missouri Statute Section 577.037.5 states:
Mo.Rev.Stat. § 577.037.5 (2011).
The actual measure of the defendant's blood alcohol content is not required to establish that defendant was driving while intoxicated. State v. Adams, 163 S.W.3d 35, 37 (Mo.App.2005). "In the absence of a chemical analysis showing a defendant's blood alcohol content, the State may meet its burden of proof solely through the testimony of a witness who had a reasonable opportunity to observe the defendant." State v. Rose, 86 S.W.3d 90, 105 (Mo.App.2002); State v. Edwards, 280 S.W.3d 184, 189 (Mo.App.2009) ("Intoxication may be proven by any witness who had a reasonable opportunity to observe Defendant's physical condition."). The Court must therefore determine whether the evidence is sufficient to find guilt of intoxication beyond a reasonable doubt. See State v. Seitz, 384 S.W.3d 384, 387 (Mo.App.2012) (citing State v. Belton, 153 S.W.3d 307, 309 (Mo.2005)).
Missouri appellate courts typically affirm a trial court's determination of intoxication if "there was sufficient evidence from which reasonable persons could have found the defendant guilty of the charged offenses." Edwards, 280 S.W.3d at 189 (citation omitted). "When reviewing the sufficiency of the evidence, we review all evidence and inferences reasonably draw[n] from the evidence in the light most favorable to the verdict and disregard all contrary evidence and inferences." State v. Burse, 231 S.W.3d 247, 251 (Mo. App.2007) (citations omitted) (where Missouri Court of Appeals discusses the standard of review on appeal).
"Although the bankruptcy court must apply state law to resolve the substantive issues under section 523(a)(9), the Federal Rules of Evidence apply in all proceedings under the Bankruptcy Code, including adversary proceedings." In re Barnes, 266 B.R. at 403; Fed. R. Bankr.P. 9017 (2011); Fed.R.Evid. 1101(a) (2011). "Thus, even when the bankruptcy court applies state law to resolve substantive issues, it must apply the Federal Rules of Evidence to resolve evidentiary questions." In re Barnes, 266 B.R. at 403 (citing Hirsch v. Lopreato (In re Colonial Realty Co.), 209 B.R. 819, 822 (Bankr.D.Conn. 1997)); see also Sprynczynatyk v. General Motors Corp., 771 F.2d 1112 (8th Cir.1985) (general questions of admissibility of evidence are governed by federal law in cases where state substantive law applies).
Plaintiffs have brought forth two bases for this Court to determine that Defendant was intoxicated when he struck the riding lawnmower that was operated by Decedent. First, Plaintiffs argue that there is sufficient evidence to determine that Defendant was under the influence of the drug Lexapro, which, in combination with a high quantity of alcohol, is sufficient for this Court to determine that Defendant was intoxicated under Missouri Statute Section 577.037.5(2). Defendant admits that at the time of the incident which ultimately caused the death of Decedent, Defendant held a prescription for Lexapro, an anti-depressant medication which should not be taken while driving and should not be combined with alcohol.
The Court has combed through the record in this case. There is not a single witness that has stated, or testified during a deposition or before this Court, that they observed Defendant in an intoxicated state on June 13, 2010. Not surprisingly, Ms. Bagley stated that she did not believe Defendant to be intoxicated while they were together. So too, Ms. Gleeson testified that Defendant appeared normal while she spoke to him outside Dos Arcos after Defendant had struck Decedent. Abigail, Defendant's daughter, testified that her father appeared normal to her and she did not detect an odor of alcohol while he was at her home dropping off her laptop. Finally, Ms. Lottinville stated that she did not smell any alcohol on Defendant's breath when he visited her the night of June 13, 2010.
The Court is also presented with Defendant's admission that he consumed one 32 ounce free-poured double rum and coke, as well as almost half of a small single rum and coke. No evidence was presented on how many ounces are in the small alcoholic drink at Dos Arcos. Even if this Court were to conclude that while a large alcoholic drink contains 32 ounces, a small alcoholic drink at Dos Arcos contains eight (8) ounces, this would lead the Court to reasonably conclude that Defendant consumed at least 36 ounces of free-poured rum and coke within approximately two and a half (2.5) hours. Plaintiffs argue that this is the amount of five (5) ordinary-sized alcoholic beverages and this Court accepts this characterization.
Further, the Court is presented with Defendant's "Not sure ... Drunk & sad" text message which was sent to Ms. Gleeson at approximately 8:34 p.m. on June 13, 2010, and Defendant's "Very hung over my friend ... Not gonna make it ... Very sorry" text message which was sent allegedly to Mr. Garcia at approximately 6:24 a.m. on June 14, 2010.
The above is also coupled with Defendant's DWI experience as an attorney in Missouri, having handled between 50 and 100 DWI cases over the course of his legal career. Defendant knows the standard of proof for DWI cases in Missouri, to the inclusion of the importance of a chemical analysis of any DWI suspect and the need for witnesses of intoxication. There is no dispute that Defendant did not stop at the scene of the crash and that a chemical analysis was not conducted. To circumvent the lack of a chemical analysis, Plaintiffs presented the testimony of several witnesses who saw Defendant hit the riding lawnmower that was operated by Decedent, heard a loud crash and saw Defendant drive away without stopping at the scene.
What does this all mean? What can this Court reasonably conclude? It means that at 8:34 p.m. on June 13, 2010, Defendant likely felt drunk and sad, despite his rather ridiculous testimony that this text message was intended to repel Ms. Gleeson's advances. As such, this Court can merely conclude that it is possible that this text message means that at 8:34 p.m., almost one hour before the relevant time — 9:30 p.m., when Defendant actually struck Decedent — Defendant may have been drunk and sad. It means that at approximately 6:34 a.m. on June 14, 2010, Defendant may have been hung over. Despite Defendant's
Defendant arrived at Dos Arcos at approximately 6:30 p.m. and left shortly after 9:09 p.m. — a period of over 2.5 hours. At that time, Defendant, weighing over 260 lbs, consumed some food and at least 36 ounces of free-poured rum and coke. It is unknown when during that 2.5 hour period Defendant consumed those beverages in that it is unknown if Defendant passively drank throughout the time at the restaurant or if he consumed the majority of the drinks within minutes of leaving Dos Arcos and getting into his SUV. None of this is known, and frankly, none of these facts will ever be known. Is the evidence presented by Plaintiffs sufficient for this Court to subjectively determine that based on the totality of circumstances, Defendant was intoxicated at approximately 9:30 p.m. when he struck Decedent? Simply put, yes; however, that is not the standard under the relevant Missouri statute. Alas, of all that has been presented, what is missing is the what is needed: substantial evidence of intoxication from physical observations of witnesses or admissions of the defendant at the relevant time — around 9:30 p.m. on June 13, 2010. The Court concludes that Plaintiffs have not met their burden pursuant to Missouri Statute Section 577.037.5(3) and as such, any debt for the wrongful death of Decedent will not be excepted from discharge pursuant to Section 523(a)(9).
Debts arising from wilful and malicious injury by a debtor are excepted from discharge under Section 523(a)(6). 11 U.S.C. § 523(a)(6) (2011). Wilfulness and maliciousness are two distinct elements of Section 523(a)(6). In re Patch, 526 F.3d 1176, 1180 (8th Cir.2008) (citing In re Scarborough, 171 F.3d 638, 641(8th Cir.1999), cert. denied, 528 U.S. 931, 120 S.Ct. 330, 145 L.Ed.2d 258 (1999)). The Eighth Circuit Court of Appeals has set a high bar for certainty of harm regarding wilful and maliciousness for the purposes of Section 523(a)(6). In re Adams, 349 B.R. 199, 203 (Bankr.W.D.Mo.2006) (citing In re Hartley, 869 F.2d 394 (8th Cir.1989) (citations omitted)). To prove wilfulness, the creditor must show by a preponderance of the evidence that debtor intended the injury, not just a deliberate or intentional act leading to injury. Kawaauhau v. Geiger, 523 U.S. 57, 61-62, 118 S.Ct. 974, 977, 140 L.Ed.2d 90 (1998); Grogan v. Garner, 498 U.S. 279, 280, 111 S.Ct. 654, 655, 112 L.Ed.2d 755 (1991). Debts arising from recklessly or negligently inflicted injuries do not fall within the compass of Section 523(a)(6). Kawaauhau, 523 U.S. at 64, 118 S.Ct. at 978. "If the debtor knows that the consequences are certain, or substantially certain, to result from his conduct, the debtor is treated as if he had, in fact, desired to produce those consequences." In re Patch, 526 F.3d at 1180.
"In cases under section 523(a)(6), the prevailing view holds that debts arising from drunk-driving liability are dischargeable absent a showing that the debtor acted with intent to inflict injury." Cassidy v. Minihan, 794 F.2d 340, 343 (8th Cir.1986). "Section 523(a)(6) excepts from discharge intentional injuries, not liability resulting from intentional acts which lead to injury,"
At the outset, the standard for maliciousness has not been met by Plaintiffs in that there is no evidence that Defendant specifically intended any harm to Decedent. There is no evidence that Defendant even knew Decedent. Decedent was simply in the wrong place at the wrong time and it ultimately cost him his life. As such, this Court has no choice but to conclude that any debt for the wrongful death of Decedent will not be excepted from discharge under Section 523(a)(6).
Decedent may not have been a model citizen. Nevertheless, he leaves behind his daughter Ashley who will never have her father to walk her down the aisle when she gets married and his son Matthew who will forever be deprived of the advice of his father. Decedent also leaves behind his wife Marci who will be denied of Decedent's companionship for the rest of her life. Decedent's mother, Gemma bore the unnatural burden of laying her son to rest. Additionally, the remaining members of Decedent family have also suffered this awful loss. Plaintiffs' recourse against Defendant henceforth will be through the criminal justice system and the Court sincerely hopes that in that, Plaintiffs will find some solace.
By separate Order, judgment will entered accordingly.
The matter before the Court is the Complaint to Determine Dischargeability of a Particular Debt Pursuant to 11 U.S.C. § 523. For the reasons set forth in this Court's Findings of Fact and Conclusions of Law entered separately,