BEFORE: *1 DAUGHTREY , McKEAGUE, Circuit Judges; and McCALLA . [*] McKEAGUE , Circuit Judge . Plaintiff-appellant Brenda Slone McGee appeals the district court’s decision upholding the bankruptcy court’s finding that her judgment against defendant is a dischargeable debt under the bankruptcy code. For the reasons that follow, the order of the district court is affirmed.
I. BACKGROUND
On November 9, 1989, James Slone died in a “roof-fall” accident while working at a coal mine co-owned and operated by defendant, Thomas Wayne Marcum. Following Slone’s death, defendant pleaded guilty to criminal charges for violations of the Federal Mine Safety and Health Act (“FMSHA”), 30 U.S.C. § 820(d) (dealing with willful violations of mandatory health and safety standards) on November 10, 1993.
Plaintiff, acting individually and as Marcum’s executrix, brought a wrongful death action against the defendant and others, alleging negligence and gross negligence. Following trial in Floyd Circuit Court, Floyd County, Kentucky, the plaintiff was awarded a judgment in the amount of $1,255,559.20 on April 11, 2002. On December 19, 2003, defendant filed for Chapter 7 bankruptcy. Plaintiff filed an adversary proceeding on March 19, 2004, challenging the discharge of the judgment pursuant to 11 U.S.C. § 523(a)(6). The bankruptcy court granted the defendant’s motion for summary judgment, finding that there was no evidence in the record that defendant intentionally injured Slone. Plaintiff appealed this decision to the district court. The district court affirmed the ruling of the bankruptcy court on April 20, 2005. This timely appeal followed.
II. JURISDICTION
The district court exercised jurisdiction pursuant to 28 U.S.C. 158(d) following the bankruptcy court’s entry of the dismissal of plaintiff’s adversary proceeding on August 12, 2004. This court has jurisdiction pursuant to 28 U.S.C. § 1291, because the district court entered a final decision when it affirmed the bankruptcy court’s dismissal on April 20, 2005.
This court reviews an order granting summary judgment
de novo
.
Johnson v. Karnes,
398
F.3d 868, 873 (6th Cir. 2005). Summary judgment is proper “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c). The “mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of
material
fact.”
Anderson v. Liberty Lobby, Inc
., 477
U.S. 242, 247-48 (1986) (emphasis added);
see also Weaver v. Shadoan
,
III. ANALYSIS
Plaintiff brings three issues on appeal. First, she claims that there is a genuine issue as to whether the actions of Marcum, which resulted in the death of James Slone, were willful and malicious pursuant to 11 U.S.C. § 523(a)(6). Second, she alleges that the bankruptcy filings do not properly indicate the value of the appellee’s property, and third, she asserts the bankruptcy should have been converted to a Chapter 13 proceeding.
A. “Willful and Malicious Injury”
Under 11 U.S.C. § 523(a)(6), a debt must be the result of a “willful and malicious injury” in order to be nondischargeable in bankruptcy. In this case, both the bankruptcy court and the district court found that plaintiff’s judgment was not for a “willful and malicious injury.” The courts below found that defendant incurred this debt as a result of negligent and/or grossly negligent behavior, and found the debt to be dischargeable. [1]
Plaintiff contends that there is a genuine issue of material fact as to whether the actions of
defendant were “willful and malicious” as described in 11 U.S.C. § 523(a)(6). She asserts that
defendant was convicted of willfully violating the FMSHA, and this conviction shows that defendant
“acted wantonly against what any person of reasonable intelligence would know to be his duty.”
See id.
Plaintiff claims that, according to
Tinker v. Colwell
,
The district court properly affirmed the bankruptcy court’s discharge of the debt. The governing statute states, in relevant part:
a) A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt--
* * *
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
11 U.S.C. § 523(a)(6). The Supreme Court interpreted this provision of the code in Kawaauhau v. Geiger, 523 U.S. 57 (1998). In Geiger , the Court ruled that a debt arising from a medical malpractice judgment, which sounded in negligent or reckless conduct, did not fall within the statutory exception of 11 U.S.C. § 523(a)(6). Id . at 63-64. In so deciding, the Supreme Court stated:
the 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. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead “willful acts that cause injury.” Or, Congress might have selected an additional word or words, i.e., “reckless” or “negligent,” to modify “injury.”
Geiger
The plaintiff claims that Geiger is distinguishable from the facts here, because the action in Geiger sounded in medical malpractice, and the defendant here pleaded guilty to criminal violations of a federal statute specifically intended to prevent the type of injury that happened to Slone. This argument is unavailing, however, because the proper inquiry under Geiger is whether the defendant inflicted a willful injury on the plaintiff. There is no evidence in the record to support the contention that Marcum willfully injured Slone.
The Sixth Circuit applied
Geiger
in
In re Markowitz
,
Here, the district court applied Geiger and Markowitz , finding no issue of material fact as to whether Marcum committed an intentional tort. The allegations in the plaintiff’s brief, including Marcum’s knowledge of the dangerous conditions in the mine, and his willful violations of the FMSHA, do not rise to the level of intent required for an intentional tort. There is no evidence in the record that Marcum desired, intended, or was substantially certain that Slone’s death would occur. The plaintiff never asserted any claim for an intentional tort, and the judgment against Marcum is for negligence and gross negligence only. Even though Marcum pleaded to a willful violation of the FMSHA, this does not equate to the “willful injury” requirement enunciated in Geiger. Thus, there is no issue of material fact as to whether Marcum’s actions caused a “willful and malicious injury” as required by § 523(a)(6) and as interpreted by Geiger and Markowitz .
B. Valuation of Appellee’s Property
The district court found that this issue was not included in the order entered by the bankruptcy court on August 12, 2004, and therefore, the issue was not properly before the district court. In fact, the plaintiff did not raise the issue in the adversary proceedings before the bankruptcy court. The issue is not properly before this court.
C. Chapter 13
Likewise, plaintiff’s assertion that the bankruptcy should have been converted to a Chapter 13 bankruptcy was not presented to the bankruptcy court, nor is it discussed in the district court opinion. Further, plaintiff cites no legal authority in support of this proposition. The issue is not properly before this court.
V. CONCLUSION
For the aforementioned reasons, the ruling of the district court is AFFIRMED.
Notes
[*] The Honorable Jon P. McCalla, United States District Judge for the Western District of Tennessee sitting by designation.
[1] The Supreme Court has ruled that res judicata does not apply to dischargeability
proceedings in a bankruptcy court.
Brown v. Felsen
,