In re Cope

280 B.R. 516, 2001 Bankr. LEXIS 1943, 2001 WL 1910852
CourtUnited States Bankruptcy Court, D. Oregon
DecidedAugust 10, 2001
DocketNo. 300-37575-tmb7
StatusPublished
Cited by1 cases

This text of 280 B.R. 516 (In re Cope) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Cope, 280 B.R. 516, 2001 Bankr. LEXIS 1943, 2001 WL 1910852 (Or. 2001).

Opinion

MEMORANDUM OPINION

PATRICIA M. BROWN, Bankruptcy Judge.

This matter came before the court on the Debtors’ objection to the Trustee’s notice of intent to settle Mr. Cope’s unlawful employment practices lawsuit against his employer and the Trustee’s objection to the Debtors’ claim of exemption in $10,000 to be paid to Mr. Cope as “emotional distress damages” as part of that settlement.

FACTS

At the time this bankruptcy was filed Mr. Cope had a pending lawsuit against his employer for unlawful employment practices. The Debtors valued the lawsuit at $130,000 and claimed 75% of those funds as exempt under ORS 23.185 which allows a debtor to exempt 75% of any wages due owing at the time of a bankruptcy filing.

On November 2, 2000, the Trustee filed objections to the claimed exemption stating “Discrimination Claim is of Record, suit claims only part of damages and lost wages. Trustee has no objection to 75% of wage portion of any award being exempt.” The Debtors did not respond to the Trustee’s objection and, therefore, the Debtor’s exemption was disallowed.

On December 13, 2000, The Trustee then filed a Motion to Settle and Compromise the state court lawsuit on “terms that the defendants insist on remaining confidential.” The Motion also stated that “[t]he proceeds from the settlement are sufficient to pay all the debtors’s scheduled claims.” The Motion further stated that the settlement included an award of statutory attorney fees that would be paid directly to the Debtors’ state court counsel and that the balance of the settlement funds would be paid to the trustee for distribution to creditors.

The Debtors timely objected to the Motion to Settle and Compromise on the grounds that 1) the settlement required them to waive exemptions and forfeit their interest in otherwise exempt property and 2) their bankruptcy counsel had not been informed of any settlement negotiations between their personal injury attorney and the trustee nor of the agreement to waive the Debtors’ claim of exemption. The Debtors also moved for an extension of time to amend their exemptions.

On February 1, 2001, the Debtors filed amended schedules in which they claimed 75% of the proceeds of the lawsuit exempt as wages and claimed an additional $10,000 exempt as payment for personal bodily injury under ORS 23.160(l)(k). The Trustee filed objections to the Debtors’ claim of exemption under ORS [518]*51823.160(1)(K). The Debtors did not respond to the Trustee’s objection.

Following an initial hearing on the Debtors’ Objections to the Trustee’s Notice of Settlement and the Debtors’ Motion to extend Time to Amend Schedules, the court directed the parties to submit briefs on the issue of whether Oregon law allows an exemption for emotional distress damages absent a showing that the debtor suffered actual physical injury.

DISCUSSION

A debtor’s right to claim exemptions is governed by § 522(d) of the Bankruptcy Code. This sections provides, in pertinent part:

(b) ... an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection. ... Such property is:
(1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph 2(A) of this subsection specifically does not so authorize; or, in the alternative,
(2) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place....

In this case the Debtors’ domicile was located in Oregon for the 180 day period prior to filing of the bankruptcy petition. Oregon has opted out of the federal bankruptcy exemptions. ORS 23.305. Thus the court must look to the Oregon exemption statutes to determine the Debtors’ right, if any, to exempt the funds at issue.

The Debtors claim that the funds at issue may be exempted under ORS 23.160(l)(k) which allows a debtor to exempt a:

“right to receive, or property that is traceable to, a payment or payments, not to exceed a total of $10,000, on account of personal bodily injury of the debtor....”

The trustee contends that this section does not allow the Debtors to exempt funds received as emotional distress damages absent a showing that the distress was the result of bodily injury suffered by a debtor. In support of this contention he cites In re Hanson, 226 B.R. 106 (Bankr.D.Idaho 1998).

In Hanson the court applied Oregon law and held that proceeds of a debtor’s sexual harassment lawsuit against her employer were not exempt under ORS 23.160(l)(k) absent a “clear showing ... that she suffered some type of appreciable physical injury....” Id. at 108. In reaching this conclusion the court noted that the “personal bodily injury exemption under Oregon law ... is very similar to Idaho’s exemption in that it narrows the definition of personal injury by adding the term ‘bodily’ ” Id. at 109. The court noted it “had construed the term ‘bodily injury’ under the Idaho statute to refer ‘to actual physical injury, and not pain and suffering consisting only of mental and emotional trauma.’ ” Id. at 108 It based this conclusion on the fact that the “legislature’s use of [the] additional descriptive term [bodily] must have been significant, or it is mere sur-plusage.” Id.

The Debtors contend that the Hanson decision was wrongly decided because it misconstrues Oregon law regarding a plaintiffs right to recover emotional [519]*519distress damages. Under Oregon law emotional distress damages are generally not recoverable absent a showing of actual physical injury. However, such damages are allowed, without a showing of physical injury if they arise from 1) a specific intent to inflict emotional distress; 2) intentional misconduct by a person in a position of responsibility and with knowledge that it would cause grave distress; or 3) there is conduct that infringes upon a legally protected interest apart from the claimed distress. Bennett v. Baugh, 961 P.2d 883, 888, 154 Or.App. 397 (1998); affirmed in part, reversed in part, 329 Or. 282, 985 P.2d 1282 (1999).

The Debtors argue that:

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Related

Quesnoy v. Department of Revenue
400 P.3d 960 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
280 B.R. 516, 2001 Bankr. LEXIS 1943, 2001 WL 1910852, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-cope-orb-2001.