639 B.R. 1
Bankr. D. Mass.2022Background
- On December 3, 1994, Nancy McGinn ran over Gregory Eno with her car three times on Main Street in Bourne, MA; Gregory suffered severe, long‑term injuries and later died in 2015.
- Eyewitness Nancy Sprague credibly testified McGinn ran over Gregory once, backed up over him, looked under the car, then accelerated forward and ran over him a third time; McGinn left the scene and later turned herself in.
- McGinn was criminally convicted (admitting sufficient facts) of leaving the scene and negligent operation; Gregory obtained a default civil judgment in 1997 for $1,350,000, later amended with interest to about $4.8 million.
- McGinn filed Chapter 7 bankruptcy in 2019; Walter Eno (Gregory’s father and personal representative) sued under 11 U.S.C. § 523(a)(6) to except the judgment from discharge as a debt for willful and malicious injury.
- The bankruptcy court found McGinn not credible on key points, concluded the first two passes were not willful/malicious (she did not know Gregory was under the car), but the third pass was deliberate and committed with substantial certainty of harm.
- The court apportioned the judgment equally among the three passes and held one‑third of the judgment (plus corresponding interest and costs) nondischargeable; the balance discharged.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the entire civil judgment is excepted from discharge under § 523(a)(6) (willful and malicious injury) | All three times McGinn ran over Gregory (and her leaving the scene) were willful and malicious, so the full judgment is nondischargeable | The acts were negligent or without the requisite intent/substantial certainty; at most criminal leaving‑the‑scene conviction does not establish § 523(a)(6) willfulness for all passes | Only the third pass satisfied the willful‑and‑malicious standard; one‑third of the judgment nondischargeable, remainder discharged |
| Whether McGinn’s leaving the scene rendered additional injury such that that portion of the judgment is nondischargeable | Leaving the scene was part of willful/malicious conduct supporting nondischargeability | No evidence leaving the scene caused additional or exacerbated injury; immediate reports permitted timely aid | Leaving the scene did not produce further injury and is not a basis for nondischargeability |
| Whether the state criminal conviction precludes relitigation of willfulness (issue preclusion) | The conviction establishes the requisite scienter and precludes contrary findings | Massachusetts preclusion law requires identical issues and necessity; the state statute’s scienter differs from § 523(a)(6) willfulness | Issue preclusion inapplicable: state conviction did not decide the identical willfulness issue necessary to a § 523(a)(6) determination |
| How to apportion the civil judgment among the three runs over Gregory | Judgment for Gregory covers all injuries; whole judgment should be excepted | If only one pass was willful/malicious, only the attributable portion should be excepted | Court apportioned the judgment equally among the three passes; one‑third of principal, interest, and costs are nondischargeable |
Key Cases Cited
- Palmacci v. Umpierrez, 121 F.3d 781 (1st Cir. 1997) (plaintiff bears burden to prove § 523 elements by preponderance; doubts resolved for debtor)
- Boroff v. Tully (In re Tully), 818 F.2d 106 (1st Cir. 1987) (fresh‑start policy favors debtor)
- Kawaauhau v. Geiger, 523 U.S. 57 (1998) ("willful" in § 523(a)(6) requires intent to injure or substantial certainty of injury)
- Printy v. Dean Witter Reynolds, Inc., 110 F.3d 853 (1st Cir. 1997) (malice requires objective wrongfulness and conscious disregard of duty)
- Cohen v. de la Cruz, 523 U.S. 213 (1998) ("debt for" includes principal and related interest, fees, and costs)
- Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373 (1985) (federal courts must apply state law to determine preclusive effect of state judgments)
- Tuper v. North Adams Ambulance Serv., Inc., 428 Mass. 132 (Mass. 1998) (issue preclusion requires identity of issues and necessity to prior judgment)