SUPPLEMENTAL OPINION CLARIFYING BANKRUPTCY COURT'S PRIOR OPINION

Rebecca B. Connelly, U.S. Bankruptcy Judge.

The matter before the Court comes on the District Court's remand for clarification of the memorandum decision this Court published on January 28, 2014.1 In that opinion, this Court granted the defendant's motion for partial judgment on the pleadings, because the Court found that after the plaintiff rested her case, she had failed to meet her burden of proving by a preponderance of the evidence that the debt Mr. Clyde A. Long, Jr., owed her met the criteria required by Bankruptcy Code section 523(a)(6) to be excepted from discharge.2 Particularly, the Court found that she had failed to make any showing of two of the necessary elements of section 523(a)(6). On remand, the District Court has posed the limited question of whether:

After review of the cases and the Court's prior decision, and as more fully set forth below, the Court clarifies that it disagrees with the rulings of the Alaska and Missouri courts in Fleetwood and Love.

DISCUSSION

a) The Fleetwood and Love Decisions

The District Court's request for clarification specifically cited two cases — Doe v. Fleetwood and T.K. v. Love. Accordingly, a basic understanding of the facts and reasoning from those cases is important. The Court will consider each in turn.

The Fleetwood case dealt with the dischargeability of a civil judgment against a chapter 7 debtor for sexual assault of a minor as well as intentional infliction of emotional distress, which the Superior Court of Palmer, Alaska, entered by default judgment.6 Thereafter, the court held a hearing to determine the amount of damages, at which Fleetwood and his attorney appeared and presented argument as to why the court should set aside its prior default judgment and hear argument in the case.7 Based on Fleetwood's arguments, the state court set aside the default judgment, and Fleetwood filed an answer to the complaint denying all allegations against him.8

After a contested hearing, at which Fleetwood appeared and represented himself, the court entered findings of fact and conclusions of law, in which it found by clear and convincing evidence that Fleetwood had sexually assaulted Doe and that he did so "intentionally and with reckless disregard for Doe's welfare."9 Accordingly, the court entered judgment in Doe's favor and awarded her damages.10

Thereafter, Fleetwood petitioned for bankruptcy relief under chapter 7 of the Bankruptcy Code, at which time Doe initiated an adversary proceeding to declare the debt Fleetwood owed her nondischargeable under section 523(a)(6).11 In analyzing the dischargeability of the debt, the bankruptcy court acknowledged Doe had the burden of establishing that "Fleetwood had a subjective motive to inflict injury or believe[d] that injury [was] substantially certain to result from his own conduct."12 The court then reasoned, however, "[w]here the damages arise from sexual abuse, willfulness is apparent because the subjective motive to inflict harm `is self evident [sic], either because the tortfeasor knows his conduct is certain or almost certain to cause harm, or because he should know and therefore the intent is inferred as a matter of law.'"13 The court then went on to discuss maliciousness, opining, "the nature of the wrongful act necessarily establishes malice because sexual abuse of a minor is inherently an intentional, wrongful act which unquestionably causes damage."14 Accordingly, the bankruptcy court inferred both willfulness and malice based on the nature of Fleetwood's offense and declared the debts arising therefrom nondischargeable under section 523(a)(6).15

Next, and similarly, in the Love case, the bankruptcy court had to determine the dischargeability of a debt arising from the debtor's sexual molestation of a minor, upon the victim's motion for summary judgment.16 After a contested hearing at which Love was represented by an attorney, the Circuit Court of Laclede County, Missouri, convicted him of sexual misconduct in the first degree.17

Thereafter, Love petitioned for bankruptcy relief, and the creditor initiated an adversary proceeding against him to have the bankruptcy court declare the debt nondischargeable under section 523(a)(6).18 The court, in discussing the issue of Love's intent to harm the plaintiff, addressed willfulness and maliciousness separately. First, in discussing willfulness, the court acknowledged the United States Supreme Court's mandate that "[t]he word `willful' in (a)(6) modifies the word `injury,' indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury."19 Nevertheless, and without further explanation, the Love court held, "[t]hat Debtor's actions were intentional and deliberate is buttressed by the fact that he was convicted of sexually molesting four children.... There was nothing accidental or merely reckless about his actions."20

Similarly, in discussing maliciousness, the court reasoned that although "the pleadings, affidavits and exhibits on file may not demonstrate that the state court necessarily decided that Debtor intended to cause injury to Plaintiff or independently establish that fact,"21 "intent to harm is established as a result of Debtor's conviction because, given the nature of the crime, the conviction either establishes that the Debtor knew that his conduct was certain or almost certain to cause harm or permits the Court to infer harm as a matter of law."22 Important to the Love court's ruling was the Eighth Circuit's decision in B.B. v. Continental Insurance Co., in which that court adopted an inferred-intent theory for sexual molestation in the context of whether a homeowner's insurance policy would indemnify the insured from a civil judgment for child molestation.23 Accordingly, the Love court determined the civil debt Love owed to the creditor was nondischargeable as a matter of law.24

b) Ms. Lewis's Nondischargeability Suit

Ultimately, the Court disagrees with both of the aforementioned cases' reasoning,25 as this Court does not believe that it may imply intent for the purposes of Bankruptcy Code section 523(a)(6), based on its understanding of the Supreme Court's ruling in Kawaauhau v. Geiger. In the case at bar, Ms. Lewis has relied upon several theories for establishing Mr. Long's intent. First, at the hearing, counsel for Ms. Lewis seemed to suggest Mr. Long's intent was not relevant at all to the question of dischargeability.26 Later in the hearing, after the Court ruled that Mr. Long's intent was relevant to the controversy, Ms. Lewis's counsel asserted the doctrine of collateral estoppel established Mr. Long's intent as a matter of law.27 Now, upon appeal, Ms. Lewis appears to have abandoned these theories entirely and, instead, relies solely upon the argument that the nature of Mr. Long's offense necessarily implies his intent to willfully and maliciously cause an injury.28 Based on the posture of the case and limited scope of the remand, however, the Court will only clarify its opinion with respect to Ms. Lewis's current assertion that the Court must imply intent in strict liability instances under section 523(a)(6).

As enacted by Congress, section 523(a)(6) expressly states, "[a] discharge [under specific provisions of this title] ... does not discharge an individual debtor from any debt ... for willful and malicious injury by the debtor to another entity or to the property of another entity."29 Thus, the statute expressly requires, without qualification, the moving party to demonstrate by a preponderance of the evidence that any resultant injury stems from the debtor's willful and malicious intent to injure.30

Indeed, as mentioned above, in analyzing this provision, the Supreme Court of the United States explained:

This Court understands these statements to abrogate a bankruptcy court's discretion to infer or imply a debtor's intent to cause an injury based on his or her intent to act alone, regardless of the nature of the conduct.

Notably, the Supreme Court in Geiger specifically considered the question of whether the mere fact an actor's conduct was "deliberate" satisfied the requirements of section 523(a)(6) and ultimately held it did not. In that case, the movants sought to have a debt for a medical malpractice judgment deemed nondischargeable based on the fact that the doctor's actions were "intentional," in that he deliberately acted in a certain manner.32 In so arguing, the movants relied heavily upon the Supreme Court's reasoning in its decision in Tinker v. Colwell.33

In Tinker, the Supreme Court ruled that a debt arising from "criminal conversation" — defined as "a violation of the marital rights of the husband in the person of his wife, to the exclusion of all others" arising from adultery34 — satisfied the 1898 Bankruptcy Act's discharge exception, which also required a finding of willful and malicious conduct.35 In so ruling, the Supreme Court in Tinker held that criminal conversation is "wilful [sic] ... in the sense that it is intentional and voluntary, and we think that it is also malicious within the meaning of the statute."36

In reconciling its decision with Tinker, the Supreme Court in Geiger limited Tinker to its facts and clarified:

Thus, the Supreme Court limited the scope of the holding of the Tinker opinion only to the fact that criminal conversation was, in fact, an intentional tort, while emphasizing that the express language of section 523(a)(6) requires the movant prove more than merely an intent to act — i.e., an intent to injure. In so ruling, the Supreme Court also held that section 523(a)(6) mandates a movant establish the debtor's intent when the injuries arose from a strict liability offense, such as criminal conversation.38

Accordingly, the Court understands the Geiger opinion to require a movant under section 523(a)(6) to establish the debtor's willful and malicious intent to injure by a preponderance of the evidence and, in this case, begrudgingly does not believe Ms. Lewis has done so. The statutory framework of section 523(a)(6) and subsequent case law is unambiguous in its requirement that the movant must prove the debtor's willful and malicious intent in causing the injury sought to be deemed nondischargeable.39

As the Supreme Court reasoned in Geiger, "we are hesitant to adopt an interpretation of a congressional enactment which renders superfluous another portion of that same law."40 If the Court were to follow the Fleetwood and Love courts' rulings,41 it would not only effectively declare any strict liability offense per se nondischargeable, but it would also render any intentional tort for which another court has already entered a judgment nondischargeable as a matter of law. Moreover, such an understanding of section 523(a)(6) would render various other subparts of section 523(a) unnecessary, including (a)(4) for defalcation or (a)(9) for personal injury or death resulting from the debtor's driving while intoxicated.

Furthermore, an understanding of section 523(a)(6) as the Fleetwood and Love courts champion undermines the fundamental purpose of section 523(a)(6). By including the qualifier "willful and malicious" in section 523(a)(6), Congress placed the additional requirement on the movant to meet a burden beyond merely what the underlying cause of action required and to establish that the debtor unambiguously sought to cause the damages inflicted upon the victim. Although the Court acknowledges such intent may be established in certain situations by collateral estoppel,42 when the underlying cause of action does not necessitate a finding of intent to injure, the Court does not believe it is able to imply such intent based on the public policy considerations of the antecedent action.43

In this case, the Court sympathizes with Ms. Lewis and recognizes the egregious nature of Mr. Long's criminal conviction; however, it declines to look to the policy considerations of state statutory rape laws44 and find that such considerations essentially obliterate the specific language Congress enacted in the Bankruptcy Code.45 The Court understands and appreciates the policy considerations for such statutes, but it emphasizes that section 523(a)(6) is an entirely separate statute with its own particular elements and underlying public policy considerations.

In Ms. Lewis's case, the state court made no special finding that Mr. Long acted intentionally or willfully, and her counsel provided the Court with no evidence of, and made no showing of, Mr. Long's intent to cause her injuries. Instead, Ms. Lewis relied solely on the criminal conviction, default judgment, and promissory note in her case in chief. Nevertheless, the criminal conviction did not include an element of intent; the default judgment made no special finding of intent; and the promissory note included an admission the obligation was in settlement of an intentional tort46 but did not include an admission of intent. In fact, during the plaintiff's case in chief, she did not provide any evidence from which the Court could make a finding regarding the debtor's mens rea.

At the close of her evidence, counsel for Mr. Long moved for a Judgment on Partial Findings under Federal Rule of Bankruptcy Procedure 7052.47 At that time, the Court took the matter under advisement and allowed Mr. Long to put on evidence. During the defendant's case was the only time Ms. Lewis attempted unsuccessfully to introduce any evidence regarding Mr. Long's intent.48 Prior to Mr. Long's motion, however, the plaintiff merely supplied the Court with the state court statutory rape criminal conviction, default judgment, and promissory note.49 Furthermore, the plaintiff provided no authority regarding the Court's ability to find Mr. Long's intent either though collateral estoppel or implication.50

Accordingly, based on the Supreme Court's ruling in Kawaauhau v. Geiger, and with pensiveness, the Court finds that the plaintiff failed to carry her burden of establishing by a preponderance of the evidence that her resulting injuries stemmed from Mr. Long's willful and malicious intent to injure her.

CONCLUSION

The Court clarifies its prior ruling to expressly state that it disagrees with the opinions of Doe v. Fleetwood and T.K. v. Love and holds that in order for a creditor to have a debt declared nondischargeable under section 523(a)(6), he or she must prove by a preponderance of the evidence that the debtor willfully and maliciously caused the injury resulting in the particular debt, and the Court is not permitted to infer such elements.