593 B.R. 832
Bankr. D.N.M.2018Background
- Plaintiff (a registered nurse) and Defendant (software analyst) met via Tinder in late 2015, began a sexual relationship, and had unprotected sex after Defendant expressly told Plaintiff he had nothing to worry about regarding STDs.
- Defendant actually had a prior diagnosis of genital herpes (HSV‑II) known to him before intercourse; Plaintiff contracted herpes and tested positive in February 2016.
- Plaintiff sued in state court; Defendant filed bankruptcy before trial and this adversary proceeding followed seeking a determination the debt is nondischargeable.
- The court found Defendant knowingly lied about his condition to induce sex, that Plaintiff reasonably relied and was injured, and that Plaintiff proved fraud and civil battery by clear and convincing (fraud) and preponderance (battery) evidence.
- Damages awarded: medical and counseling expenses plus pain and suffering and punitive damages, totaling $246,768.
- Court held the fraud claim did not fall under § 523(a)(2)(A) (because fraud did not obtain money/property/services), but the damages were nondischargeable under § 523(a)(6) as willful and malicious injury.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Liability for fraud (misrepresentation of STD status) | Defendant knowingly misrepresented his health to induce sex; Plaintiff reasonably relied and was injured | Denied requisite state of mind for fraud; claimed intoxication and lack of intent | Court: Fraud proven by clear and convincing evidence; Defendant lied to induce sex and Plaintiff reasonably relied |
| Civil battery (nonconsensual touching induced by misrepresentation) | Consent was vitiated by Defendant's misrepresentation about infection | Argued consent/denied intent to harm | Court: Consent invalid because induced by lie; elements of battery satisfied |
| Damages (compensatory & punitive) | Sought medical costs, counseling, pain & suffering, punitive damages | Disputed extent of damages | Court: Awarded $49,192 medical, $147,576 pain & suffering, $50,000 punitive = $246,768 total |
| Dischargeability under bankruptcy law (§ 523) | Damages arise from willful and malicious personal injury and are nondischargeable under § 523(a)(6) | Argued lack of willful/malicious intent; fraud claim should not convert to § 523(a)(6) relief | Court: Fraud damages not within § 523(a)(2)(A) (no money/property obtained); battery and fraud caused willful and malicious injury → nondischargeable under § 523(a)(6) |
Key Cases Cited
- Kawaauhau v. Geiger, 523 U.S. 57 (1998) (willful means deliberate or intentional injury; § 523(a)(6) requires intent to cause the injury)
- Husky Int’l Elecs., Inc. v. Ritz, 578 U.S. 356 (2016) (recognizes overlap can exist between fraud‑based exceptions and § 523(a)(6) for willful and malicious injury)
- Grogan v. Garner, 498 U.S. 279 (1991) (discusses relation of fraud judgments and § 523(a)(6) for personal‑injury torts)
- Panalis v. Moore (In re Moore), 357 F.3d 1125 (10th Cir. 2004) (applies subjective standard for willful and malicious injury under § 523(a)(6))
- Unser v. Unser, 86 N.M. 648 (N.M. 1974) (elements of common‑law fraud under New Mexico law)