David M. Larsen v. David Nicolai, et al

Filing

Filed opinion of the court by Judge Posner. AFFIRMED. Frank H. Easterbrook, Chief Judge; Richard A. Posner, Circuit Judge and Diane S. Sykes, Circuit Judge. [6390675-3] [6390675] [11-1256]

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In the

United States Court of Appeals
For the Seventh Circuit
No. 11-1256
T ERI JENDUSA -N ICOLAI, et al.,
Plaintiffs-Appellants,
v.
D AVID M. L ARSEN,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 2:10-cv-00204-JPS—J.P. Stadtmueller, Judge.

S UBMITTED M ARCH 28, 2012—D ECIDED A PRIL 18, 2012

Before E ASTERBROOK, Chief Judge, and P OSNER and
S YKES, Circuit Judges.
P OSNER, Circuit Judge. The defendant in this adversary
proceeding in bankruptcy, David Larsen, attempted to
murder his ex-wife, Teri Jendusa-Nicolai. He was convicted of state and federal crimes and sentenced to life
in prison. Although his attempt had failed, he had
inflicted severe injuries that resulted in her suffering a
miscarriage and the amputation of all her toes; for after

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beating her with a baseball bat he had sealed her in a
garbage can filled with snow and left it (and therefore
her) in an unheated storage facility, causing severe frostbite. In a tort suit that she brought together with her
present husband and her two daughters, a Wisconsin
state court awarded her a $3.4 million judgment against
Larsen for battery, false imprisonment, and intentional
infliction of emotional distress, and her husband and
daughters $300,000 for loss of consortium.
Larsen filed for bankruptcy under Chapter 7 of the
Bankruptcy Code (liquidation), seeking to discharge
these judgment debts. Collateral estoppel precluded his
challenging in the bankruptcy proceeding the findings
underlying the Wisconsin judgment. Grogan v. Garner,
498 U.S. 279, 284 n. 11 (1991). The bankruptcy judge
ruled that his debts were nondischargeable because
those findings established that they were debts “for
willful and malicious injury by the debtor to another
entity or to the property of another entity” within the
meaning of 11 U.S.C. § 523(a)(6). The district court
affirmed the bankruptcy judge.
An injury is willful within the meaning of section
523(a)(6) only if intended; if it’s the result but not the
intended result of an intentional act, the debt arising
from the injury is dischargeable, Kawaauhau v. Geiger,
523 U.S. 57, 61-62 (1998) (“nondischargeability takes a
deliberate or intentional injury, not merely a deliberate
or intentional act that leads to injury,” id. at 61), even
if the injury was the result of a reckless act. Id. at 61;
Maxfield v. Jennings, 670 F.3d 1329, 1334 (11th Cir. 2012)

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(per curiam). Indeed, not even all intentional torts
are covered. Williams v. International Brotherhood of
Electrical Workers Local 520, 337 F.3d 504, 508 (5th Cir. 2003);
Miller v. J.D. Abrams Inc., 156 F.3d 598, 603-04 (5th Cir.
1998); Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986).
Debts resulting from fraud, for example, are covered
in different sections of the Bankruptcy Code. Berkson v.
Gulevsky, 362 F.3d 961, 963-64 (7th Cir. 2004). And an
intentional tort needn’t involve an intent to cause injury. Wheeler, for example, involved a debt for libel, and
libel can be committed by someone who believes, though
negligently or even recklessly, that his libelous statement is privileged because it’s true; such a debt is
therefore dischargeable.
Larsen doesn’t have that excuse, but he argues that
the Wisconsin court did not decide that he’d intended
to inflict the specific injuries, such as the loss of his exwife’s toes, that resulted from his attack on her. But
obviously he intended to injure her—he was convicted
of attempted murder, after all—and the destruction of
her toes and the miscarriage were foreseeable consequences of the intentional torts that gave rise to the
debt he seeks to discharge.
He argues that at least the punitive-damages component of the debt ($1.5 million) is not for “willful and
malicious injury” but rather for punishment and deterrence. But punitive damages are a debt owed by a tortfeasor to his victim, and in this case they are a debt consequent upon a willful and malicious injury. See
Fischer v. Scarborough, 171 F.3d 638, 644-45 (8th Cir.

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1999); Hagan v. McNallen, 62 F.3d 619, 626-27 (4th Cir.
1995).
And finally he argues that he didn’t intend to injure
his ex-wife’s husband or her children; their claims are
claims for loss of consortium and are therefore derivative from her claims. Indeed they are derivative—and,
like the award of punitive damages, derivative from
the injury that the debtor committed intentionally.
Phelps v. Physicians Ins. Co., 768 N.W.2d 615, 634-36
(Wis. 2009); Finnegan ex rel. Skoglind v. Wisconsin Patients
Compensation Fund, 666 N.W.2d 797, 804-05 (Wis. 2003).
We can’t find an appellate case on this precise point—the
nondischargeability of a claim for loss of consortium
derivative from a willful and malicious injury. But that
it is not dischargeable follows directly not only from
the cases dealing with punitive damages but also
from cases that hold that debts arising from wrongfuldeath suits are not dischargeable even when the
creditor fighting discharge is not the victim of the
wrongful death but the victim’s estate or the estate’s
representative. Fezler v. Davis, 194 F.3d 570, 574 (5th Cir.
1999); Smith v. Pitner, 696 F.2d 447, 447-49 (6th Cir.
1982) (per curiam).
So Larsen loses—and loses regardless of the precise
meaning of “willful and malicious.” But in the course
of our research we have discovered to our surprise
that courts are all over the lot in defining this phrase
in section 523(a)(6). It is the same kind of pseudoconflict among circuits that we encountered in
Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC,

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626 F.3d 958, 960-63 (7th Cir. 2010): different legal definitions of the same statutory language that probably don’t
generate different outcomes.
The Second Circuit defines “malicious” as “ wrongful
and without just cause or excuse, even in the absence
of personal hatred, spite, or ill-will.” Ball v. A.O. Smith
Corp., 451 F.3d 66, 69 (2d Cir. 2006), quoting Navistar
Financial Corp. v. Stelluti, 94 F.3d 84, 87 (2d Cir. 1996). The
Fifth Circuit equates “willful and malicious injury” to
“either an objective substantial certainty of harm or a
subjective motive to cause harm.” Williams v. International
Brotherhood of Electrical Workers Local 520, supra, 337 F.3d
at 509, quoting Miller v. J.D. Abrams, Inc., supra, 156 F.3d at
606. The Sixth Circuit, in Wheeler v. Laudani, supra, 783
F.2d at 615, defined “willful” as “deliberate and intentional,” and “malicious” as “in conscious disregard of
one’s duties or without just cause or excuse; it does not
require ill will or specific intent to do harm.” After the
Supreme Court’s decision in Kawaauhau v. Geiger, the
Sixth Circuit, without questioning the definition in
Wheeler, said that the debtor “must will or desire
harm, or believe injury is substantially certain to occur
as a result of his behavior.” Markowitz v. Campbell, 190
F.3d 455, 465 n. 10 (6th Cir. 1999). Yet the Eleventh
Circuit continues to use a formula almost identical to
that in the Sixth Circuit’s Wheeler opinion: “ ‘Malicious’
means wrongful and without just cause or excessive
even in the absence of personal hatred, spite or ill-will.
To establish malice, a showing of specific intent to
harm another is not necessary.” Maxfield v. Jennings,
supra, 670 F.3d at 1334 (internal quotations and citations

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omitted). We too had quoted Wheeler’s formula approvingly, in In re Thirtyacre, 36 F.3d 697, 700 (7th Cir. 1994),
but we have not revisited the issue since Kawaauhau v.
Geiger.
The Eighth Circuit says that conduct is “malicious”
only if it is “certain or almost certain . . . to cause harm.”
Fischer v. Scarborough, supra, 171 F.3d at 643, quoting
Johnson v. Miera, 926 F.2d 741, 743-44 (8th Cir. 1991). The
Ninth Circuit requires, for willfulness, a showing
“either that the debtor had a subjective motive to inflict
the injury or that the debtor believed that injury was
substantially certain to occur as a result of his conduct,”
while “a ‘malicious’ injury involves ‘(1) a wrongful act,
(2) done intentionally, (3) which necessarily causes
injury, and (4) is done without just cause or excuse.’ ”
Petralia v. Jercich, 238 F.3d 1202, 1208-09 (9th Cir. 2001)
(emphasis in original), quoting In re Bammer, 131 F.3d
788, 791 (9th Cir. 1997) (en banc). The Tenth Circuit in
Panalis v. Moore, 357 F.3d 1125, 1129 (10th Cir. 2004),
fused “willful” and “malicious,” saying that “willful”
means “the debtor must ‘desire . . . [to cause] the consequences of his act or . . . believe [that] the consequences
are substantially certain to result from it’ ” (quoting
Mitsubishi Motor Credit of America, Inc. v. Longley, 235
B.R. 651, 657 (10th Cir. BAP 1999), quoting in turn Restatement (Second) of Torts § 8A (1965)), while “malicious”
requires “proof ‘that the debtor either intend the
resulting injury or intentionally take action that is substantially certain to cause the injury’ ” (quoting Hope
v. Walker, 48 F.3d 1161, 1164 (11th Cir. 1995)).

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Notice the redundancies—“deliberate and intentional,”
“objective . . . certainty” (“subjective certainty” is an oxymoron; the proper term is “certitude”—confidence, often
misplaced, in the correctness of one’s belief), “subjective
motive,” “will or desire,” “wrongful act . . . done without
just cause or excuse.” Notice the ambiguity of a phrase
like “specific intent to do harm”—how does that differ
from “intent to do harm,” the latter being required by
Kawaauhau v. Geiger? And what does “necessarily causes
injury” mean? And is “objective substantial certainty
of harm” really intended to substitute for intent to harm,
or is the point rather that if harm is certain we
disbelieve that it was inflicted accidentally? Notice that
the Eighth Circuit, in defining “malicious” as “certain or
almost certain . . . to cause harm,” confused a state of
mind (malice) with the consequence of an act (harm).
Notice finally that each circuit seems content to go its
own way, without attempting to reconcile its verbal
formulas with those of the other circuits.
But whatever the semantic confusion, we imagine that
all courts would agree that a willful and malicious
injury, precluding discharge in bankruptcy of the debt
created by the injury, is one that the injurer inflicted
knowing he had no legal justification and either desiring
to inflict the injury or knowing it was highly likely to
result from his act. To allow him to shirk liability by
discharging his judgment debt in those circumstances
would undermine the deterrent efficacy of tort law
without serving any policy that might be thought to
inform bankruptcy law. “The principal purpose of the
Bankruptcy Code is to grant a fresh start to the honest

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but unfortunate debtor.” Marrama v. Citizens Bank of Massachusetts, 549 U.S. 365, 367 (2007) (emphasis added, internal
quotation marks omitted); see also Disch v. Rasmussen, 417
F.3d 769, 774 (7th Cir. 2005). Actually it’s not the principal
purpose of the Bankruptcy Code; it’s a principal purpose—another is to minimize creditors’ losses from
defaults. No matter; an honest but unfortunate debtor
Larsen is not. And “in the same breath that we have
invoked this ‘fresh start’ policy, we have been careful to
explain that the [Code] limits the opportunity for a completely unencumbered new beginning to the ‘honest but
unfortunate debtor.’ ” Grogan v. Garner, supra, 498 U.S. at
286-87, quoting Local Loan Co. v. Hunt, 292 U.S. 234, 244
(1934).
The bankruptcy judge was right not to discharge the
debts arising from Larsen’s brutal attack on his ex-wife.
A FFIRMED.

4-18-12