In re Tulloch

• Decision Date: 28 August 2007
• Docket Number: Adversary No. 06-1657 (MS).,Bankruptcy No. 05-52915 (MS).
• Citation: 373 B.R. 370
• Parties: In re Michael TULLOCH, Debtor. Jerry Birdsall, as Administrator of the Estate of Meghan P. Birdsall, Plaintiff, v. Michael Tulloch, Defendant.
• Court: U.S. Bankruptcy Court — District of New Jersey

373 B.R. 370

In re Michael TULLOCH, Debtor Jerry Birdsall, as Administrator of the Estate of Meghan P. Birdsall, Plaintiff, v. Michael Tulloch, Defendant.

Bankruptcy No. 05-52915 (MS).

Adversary No. 06-1657 (MS).

United States Bankruptcy Court, D. New Jersey.

August 28, 2007.

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Robert M. Rich, Esq., Verona, NJ, for Plaintiff.

Keith O.D. Moses, Esq., Jersey City, NJ, for Defendant.

OPINION

MORRIS STERN, Bankruptcy Judge.

I. Introduction.

Plaintiff Jerry Birdsall sues debtor-defendant Michael Tulloch to except from bankruptcy discharge a debt arising out of the tragic 1998 death of plaintiffs twenty-year-old daughter, Meghan. The exception-to-discharge allegations are grounded in 11 U.S.C. § 523(a)(6) (willful and malicious injury to Ms. Birdsall) and § 523(a)(9) (personal injury and death of Ms. Birdsall caused by operation of a motor vehicle while debtor was unlawfully intoxicated). Meghan, a Boston University student, was the victim of a hit-and-run driver; that driver was determined by a Massachusetts court to have been Mr. Tulloch. The court awarded the Birdsall family $2,077,146.51 in its wrongful death action against Tulloch. Nevertheless, Tulloch testified before the bankruptcy court that he was not the hit-and-run driver (and was not in Boston, the locale of the accident, on the critical date). Thus, the degree to which the Massachusetts court decision is preclusive in the bankruptcy court is central to this court's consideration.

II. Procedural History.

The events of June 19-22, 1998 (Friday night to the early hours of Monday morning) were the subject of a summary judgment liability decision of September 2, 2005, by Hon. Diane M. Kottmyer, Justice of the Superior Court (Suffolk County) of the Commonwealth of Massachusetts (the "Liability Decision") and her damages decision of October 31, 2005 (the "Damages Decision"). Tulloch, represented throughout in the state court case, did not offer a substantive defense to the ultimate dispositive motion on liability, nor to damages, relying instead on his Fifth Amendment privilege and announcing his refusal to appear at trial. He did not appeal the state court Judgment.

In the years since the 1998 death, there has been no criminal prosecution or motor vehicle violation asserted by Massachusetts authorities against the debtor.

On October 14, 2005 debtor filed a Chapter 7 bankruptcy petition. Initially, the Birdsall claim was not scheduled by Tulloch (though the litigation was listed as pending in his Statement of Financial Affairs).¹ Amended schedules were eventually filed, Birdsall was notified of the bankruptcy case, and he filed a timely complaint initiating this adversary proceeding. The complaint was answered by Tulloch, pro se. Some weeks before the ultimate trial date (June 14, 2007), Tulloch retained trial counsel. Trial proceeded on that date.

III. Jurisdiction.

Exception-to-discharge adversary proceedings are "core proceedings" arising under title 11 and, as such, bankruptcy judges may "hear and determine" such matters and "enter appropriate orders and judgments" therein. See 28 U.S.C. § 157(b)(1); and see also § 157(b)(2)(I) (rendering "determination as to dischargeability of particular debts" core). Compare and contrast § 157(b)(2)(B) (excepting from core proceedings those otherwise core matters of allowance or disallowance of claims requiring "the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11"); § 157(b)(5) ("personal injury tort and wrongful death claims shall be tried in the district court") (emphasis added): This court thus has jurisdiction to hear and determine this adversary proceeding as to the dischargeability of the Birdsall debt, given that the state court has already liquidated the wrongful death damages.

IV. Trial Exhibits and Testimony.

The one-day trial included a threshold "Statement of Uncontested Facts" stipulated to by counsel. Included in the Statement as "true copy" exhibits were the state court complaint, the Liability Decision and the Damages Decision and Judgment.² The latter three items bore indications of a 2001 Superior Court docket number. The only other documentary evidence was a car repair estimate issued to Tulloch by a Nashua, New Hampshire auto collision repair shop (P-1) and Meghan Birdsall's death certificate (P-2).

Tulloch, initially called by the plaintiff as an adverse witness, provided the only trial testimony.

A. Liability Decision.

The September 2, 2005 Liability Decision was rendered on the Birdsall motion for summary judgment.³ Given the significance of this Decision and the paucity of other documentary evidence and testimony in this case, the Summary Judgment Record (as that term was used in the Decision) is included hereinafter, in toto.

On Monday, June 22, 1998, at about 1:50 a.m., Meghan Birdsall was found lying in the service lane of Commonwealth Avenue at or near the intersection of Commonwealth Avenue and Brighton Avenue. Her bicycle was found on the ground near her. Meghan Birdsall was unconscious; she had suffered serious injuries, including a severe break of her left leg and blunt trauma to her head. She did not regain consciousness and was pronounced dead on June 25, 1998.

On June 30, 1998, the Defendant, Michael Tulloch, brought his vehicle to Gate City Collision in Nashua, New Hampshire ("Gate City") to obtain an estimate for the repair of damage to a fender and door. Cynthia Graham-Borden an appraiser with approximately twenty years experience, evaluated the damage. She observed that the fender was caved in and there was damage to the lower part of the door and the rocker panel.^[FN2] The damage extended from the fender behind the right wheel to the middle of the rear door. Graham-Borden saw what appeared to be dried blood and tissue on the vehicle. There was no fur, hair or other indication that the blood and tissue resulted from contact with an animal. She asked: "What is this, blood and guts?" The defendant said he did not know what it was. Graham-Borden asked if he knew that he had hit something other than an animal. He told Graham-Borden that he let "a friend" borrow his car and the friend had an accident. He said he didn't know whether the car hit a persona The defendant said that he wanted to pay cash for the repairs and wanted to have the car fixed immediately. He said that he did not intend to make an insurance claim because he did not know how the accident happened. Graham-Borden could not schedule the repairs immediately and Tulloch did not wait for the next available date. Gate City had repaired Tulloch's car on several previous occasions. On past occasions, Tulloch was relaxed and friendly with Graham-Borden and other. Gate City employees. On this occasion, he appeared to be nervous.

^[FN2] The record is unclear as to which side of the vehicle was damaged. The rocker panel is the section of the car immediately beneath the door and is made of strong metal as it is part of the body of the car.

A company called MAACO repaired the damage to Tulloch's vehicle. Graham-Borden saw the car after it had been repaired by Maaco. Although on previous occasions Tulloch had been very particular about the condition of his car and the quality of repairs performed by Gate City, she observed, that the quality of the repair work performed by Maaco was poor.

Gate City notified the Nashua, New Hampshire police of Graham-Borden's observations of damage on Tulloch's car and they got in touch with officers investigating Meghan Birdsall's death who interviewed the defendant on two occasions. At the initial interview, defendant told investigating police officers that on the Friday, June 20, 1998, he was drinking and did not remember driving home as he had been drinking so heavily that he reached a blackout state. He said that he "may have hit someone." In a subsequent interview, the defendant said that on June 20, 1998, he was with friends in Boston, at a party, was intoxicated when he left the party and "hit a wall", that he slept in his car and awoke the next morning with vomit on his clothing.^[FN3]

^[FN3] On both occasions Tulloch told police that he was at the VFW playing cards on the Sunday night in question. He is, however, precluded from offering evidence of an alibi as a result of discovery violations.

Tulloch has asserted his Fifth Amendment privilege against self-incrimination and has refused to provide discovery in this case, including documents, answers to interrogatories and deposition testimony seeking evidence, inter alia, as to whether Tulloch was intoxicated on the night of June 21-22, 1998, and whether he struck Ms. Birdsall with his car. It is stipulated that he will not attend the trial and will not testify. He is precluded from calling an expert or presenting alibi witnesses as a result of discovery violations.

On this record, the Superior Court concluded that Tulloch had not complied with court rules, and his counsel's request for a continuance (apparently based upon exercise of the privilege) was deemed nonresponsive to Birdsall's summary judgment motion.⁴ Moreover, it was held that Massachusetts law provides that "[i]n a civil case, an inference adverse to the party asserting the privilege against self-incrimination may be drawn."

In the Decision's key paragraph, the Superior Court found as follows:

The evidence adduced by the Plaintiff, including the type and location of damage to the vehicle, the presence of blood and tissue on the defendant's vehicle on June 30, 1998, the defendant's conduct in connection with repairs, his statements that he drank to the extent that he reached a blackout stage and may have hit someone on the Friday night preceding the accident, his statement that he lent the car to a friend which he subsequently contradicted, in...