  |
  |
  |
    
  
   |
 | |||
|
|
|
|
| |||
knew that [boyfriend] intended to either kill Dillon or so abuse him that he would later die as a result of the abuse. . . . [T]hat [boyfriend] had abused Dillon in the past may have made it probable that [boyfriend] would abuse Dillon again on this particular occasion, but a rational fact finder cannot infer that [debtor] was substantially certain that Dillon would die based solely on the risk or likelihood that [boyfriend] would abuse him that evening. Finally, we find nothing in this record that would support a finding that [debtor] was substantially certain that Dillon would die as a result of her failure to summon medical help on the morning of Dillon's death. . . . [The] facts have little bearing on [debtor's] knowledge of Dillon's actual medical condition on the morning of Dillon's death, and they are insufficient to support the speculative inference that [debtor] was substantially certain that Dillon would die without immediate medical attention.").
Lockerby v. Sierra, 535 F.3d 1038 (9th Cir. 2008 ) ("An intentional breach of contract cannot give rise to nondischargeability under S 523(a)(6) unless it is accompanied by conduct that constitutes a tort under state law." Attorney/debtor entered into out-of-court settlement of potential malpractice claim. Debtor then decided client didn't have valid malpractice action and breached the settlement agreement. Client filed complaint to except breach of settlement agreement from discharge under S 523(a)(6). Citing Gieger and Petralia v. Jercich (In re Jercich), 238 F.3d 1202 (9th Cir. 2001): "Something more than a knowing breach of contract is required before conduct comes within the ambit of S 523(a)(6), and Jercich defined that 'something more' as tortious conduct. . . . [C]onduct is not tortious under S 523(a)(6) simply because injury is intended or 'substantially likely to occur,' but rather is only tortious if it constitutes a tort under state law. . . . [I]n contract law, '[t]he motive for the breach commonly is immaterial in an action on the contract.' . . . The concept of 'efficient breach' is built into our system of contracts, with the understanding that people will sometimes intentionally break their contracts for no other reason than that it benefits them financially. The definition of intent to injure as the commission of an act 'substantially certain' to cause harm was born from tort principles, not contract law principles. . . . Conflating tortious conduct with intent to injure also conflicts with core principles of bankruptcy law [fresh start]. . . . [Additionally,] [t]he Bankruptcy Code expressly permits intentional breaches of contract that are substantially certain to result in injury. . . . Section 365(g) expressly refers to this rejection as a breach. . . . The conduct at issue here involves an 'ordinary debt,' and the conduct would not be tortious under Arizona law. . . . [T]here is no indication that lack of just cause alone renders a breach of contract tortious under the law of Arizona. . . . [P]arties often breach contracts simply because it si to their financial benefit. Such a reason may not be 'just,' but that does not render it tortious.").
8. Other wrongful acts
Sells v. Porter (In re Porter), 539 F.3d 889 (8th Cir. 2008) (Jury award of actual and punitive damages in sexual harassment, retaliation and constructive discharge case collaterally estopped debtor in S 523(a)(6) action. Debtor's business partner engaged in ongoing sexual harassment of plaintiff. Debtor demanded that plaintiff and business partner sign memo in which both admitted
©2009 Keith M. Lundin
