In Re Thomas
ORDER
THIS MATTER сame before the Court upon three separate Motions for Relief from the Automatic Stay pursuant to
After considering all the evidence, the Court makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
On June 14, 1996, Thomas filed a voluntary Chapter 11 petition. At the time of the filing of the Chapter 11 petition, there were three lawsuits pending against Thomas in State Court. Copies of the complaints in these State Court actions were attached to the three separate Motions.
Attached to Hardy’s Motion is a copy of the complaint in the State Court action
Grandee R. Hardy v. Calhoun Thomas, Jr. And Yacht Cove Plantation Real Estate Corporation,
Civil Action Number 94-CP-07-1646. Thе causes of action included in this complaint are: Intentional Infliction of Emotional Harm — Outrage, Criminal Conspiracy, and Civil Conspiracy. All three causes of action seek monetary damages and appear to stem from the facts primarily associated with the intentional infliction of emotional harm cause of action. The complaint alleges dam
Attached to Prezioso’s Motion is a copy of the complaint in the Statе Court action Charles S. Prezioso, Jr. v. Calhoun Thomas, Jr., Civil Action Number 95-CP-07-14. The causes of action included in this complaint are: Intentional Infliction of Emotional Distress and Invasion of Privacy by Wrongful Intrusion/Harm. Both causes of action seek monetary damages and appear to stem from the facts primarily аssociated with the intentional infliction of emotional distress cause of action, including an assertion of damages for sever emotional distress and humiliation.
Attached to Franei and Rymal’s Motion is a copy of the complaint in the State Court action Dolorеs Franei and Cheryl Rymal v. Calhoun Thomas, Jr. And Yacht Cove Plantation Real Estate Corporation, Civil Action Number 95-CP-07-95. The causes of action included in this complaint are: breach of contract (for each plaintiff), breach of contract accompanied by a fraudulent act, breach of implied covenant of good faith and fair dealing, breach of express contract of good faith and fair dealing, fraud, slander per se (for just Franei), unpaid wages, assault (for just Franei), battery (for just Franei) and intentional infliction of emotional distress. All of these causes of action seek monetary damages and appear to stem from the allegations primarily associated with the intentional infliction of emotional distress cause of action alleging damages for humiliation, mental pain and anguish and sleeplessness as a result of acts of sexual harassment and offensive touching by the Debtor. For the most part, the other causes of action appear to arise because of the allegation that the Debtor’s actions also arose in the work environment.
All of the Movants filed proofs of claims with this Court against Thomas based upon these State Court actions. Thomas filed objections to the proofs of claims and takes the position that this Court should determine the merits of the State Court actions through the claims objection process pursuant to
CONCLUSIONS OF LAW
As it relates to the jurisdiction of this Court, as stated in
The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as dеtermined by the district court in which the bankruptcy case is pending.
The federal cases dealing with the term “personal injury tort” in the context of a bankruptcy court’s authority to determine the merits of actions under
As for those cases advocating a broad definition, the term “personal injury tort” is said to include a broad category of civil wrongs for which a court provides a remedy in the form of an action for damages.
The term “personal injury tort” embraces a broad category of private or civil wrongsor injuries for which a court provides a remedy in the form of an action for damages, and includes damage to an individual’s pеrson and any invasion of personal rights, such as libel, slander and mental suffering, BLACK’S LAW DICTIONARY 707,1335 (5th ed.1979).
... The Court, acknowledging the lack of legislative history, finds the statute and the Code silent on any repudiation or limitation of this broad reading of “personal injury tort” within the meaning of28 U.S.C.A. § 157(b)(5) . See In re Poole Funeral Chapel, Inc.,63 B.R. 527 , 530-532 (Bankr.N.D.Ala.1986). Accordingly, the Court construes§ 157(b)(5) to encompass federal and state causes of action for all personal injury tort claims, including those exclusively commenced under §§ 1983 and 1985.
In re Boyer,
On the other hand, there are cases that advocate “that Congress intended this exception [personal injury tort claims] for a ‘narrow range’ of claims”.
See In re Cohen,
For the most part, in either of these approaches, the question is whether the emotional trauma is the gravamen of the complaint or merely an element of damages. Some courts follоwing the more narrow range hold that the allegations of “consequential damages for emotional or physical distress [do] not trigger the application of
Similarly, in the case of
Bertholet v. Harman,
I believe the better rule is that if a mental distress claim does not involve physical injury, then only if the claim is the gravamen of a complaint would§ 157(b)(5) be invoked.
Id.
at 416. Thus, that court recognizes that
Based upon a review of the State Court complaints attached to the Motions, this Court finds that the gravamen of the State Court complaints in this proceeding is emotional distress and fits within the definí
Having determined that the complaints at issue fit within either the broad or the narrow definition of “personal injury tort”, this Court need not choose at this time whether to formally adopt either approach. Both approaches indicate intentional infliction of emotional distress as pled in these complaints is a personal injury tort claim that is not within the jurisdiction of this Court.
To further support this determination, the Court also finds guidance from South Carolina state case law which broadly defines the term “personal injury.” Whеn a more narrow definition is required, South Carolina requires the use of the term “bodily injury.”
The South Carolina Supreme Court has distinguished the terms “bodily injury” and “personal injury.” The court held the term “bodily injuries” was much narrower than the term “personal injuries.” (Citation omitted). Damages for medical expenses and loss of consortium suffered by an individual due to injuries to his or her spouse are “personal injuries” and not “bodily injuries.” (Citation omitted). Injuries recoverable under the Wrongful Death Act such as pecuniary loss, mental shock and suffering, wounded feelings, grief, sorrow, and loss оf society and companionship are not “bodily injuries” but are “personal injuries.”
State Farm Mutual Auto. Ins. Co. v. Ramsey,
South Carolina recognized the tort of intentional infliction of emotional distress in the case of
Ford v. Hutson,
intentional infliction of emotional distress, assault and battery ... constitute personal injuries....
Loges v. Mack Trucks, Inc.,
The State Court complaints before the Court appear to be primarily grounded upon a cause of action for intentional infliction of emotional distress and thus, under South Carolina common law, would constitute a claim for a personal injury tort.
Having found that these actions do constitute personal injury tort claims, pursuant to
However, lifting the automatiс stay to allow these actions to proceed in State Court does not necessarily mandate that the actions remain in State Court.
The language ofSection 157(b)(5) is silent as to where an action must be filed or commenced, it merely provides that the District Court in which the bankruptcy ease is pending shall determine which district court, either itself or the court in which the claims arose, shall try the ease. Clearly other possibilities exist which undercut plaintiffs interpretation of the statute. What of the tort of personal injury case filed in state court prior to a debtоr filing for bankruptcy? Under such circumstances the Plaintiff, after the stay is lifted, will be privileged to continue the action in the state court, or, if he chooses, to commence an action in the appropriate federal district court. If the action is renewed in thе state court, the debtor has the right to remove to federal court based upon his status as a debtor under Title 11 of the United States Code. And, if the debtorchooses to remove, plaintiff may petition the district court to do one of three things, (1) preside over the personal injury action; (2) transfer the action for resolution in the district court in which the claim arose; or (3) abstain from hearing the action in favor of the state court pursuant to 28 U.S.C. § 1334(c)(1) . See In re Littlejohn [Little-ton] Colombus Hudgins,102 B.R. 495 , 498 (Bankr.E.D.Va.1989).
This Court is convinced that, pursuant to28 U.S.C. § 157(b)(5) , these three procedural forum-selection options are the only ones available in all personal injury tort and wrongful death claims against debtors subject to bankruptcy proceedings in the District Court in which the bankruptcy case is pending.
Stokes v. Southeast Hotel Properties,
Therefore, based upon the requirements of
CONCLUSION
For the reasons stated within, it is therefore,
ORDERED, that cause exists to grant the Motions for Relief from the Automatic Stay pursuant to
AND IT IS SO ORDERED.
Notes
. Further references to the Bankruptcy Code,