Amerisafe, Inc. v. Ernst (In re Ernst)
Amerisafe, Inc. v. Ernst (In re Ernst)
Opinion of the Court
REASONS FOR DECISION
This is a non-dischargeability proceeding under 11 U.S.C. §§ 523(a)(2) and 523(a)(4) brought against William Ernst (the “debt- or”) based on the conduct of his non-filing spouse, Lisa Ernst. The present matter before the court is a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure seeking dismissal of the dischargeability complaint filed by Ameri-safe, Inc., American Interstate Insurance Company, and Hanover Insurance Company (collectively, “Amerisafe” or “plaintiffs”). The court took the matter under advisement following oral argument. After reviewing the parties’ pleadings and the relevant authorities, the court rules as follows.
JURISDICTION
The court has jurisdiction over the matters asserted in this adversary proceeding pursuant to 28 U.S.C. §§ 1334 and 157(a). This matter is a core proceeding in which this court may enter a final order pursuant to 28 U.S.C. § 16700(2)® and (J). The following Reasons for Decision shall constitute the court’s findings of fact and conclusions of law.
BACKGROUND
Lisa Ernst, the debtor’s non-filing spouse, had been an employee of Ameri-safe for approximately fifteen (15) years at the time of her termination. She worked in Amerisafe’s accounting department and was the Assistant Manager of Treasury Services for Amerisafe at the time of her termination. (Complaint at ¶ 6). Amerisafe alleges that Lisa Ernst embezzled at least $1,351,259.00 from May 2003 through March 2014. (Id. at ¶ 9-11; 16). Amerisafe alleges that Ernst used her position in the accounting department to move money directly from Amerisafe’s bank accounts into two joint bank accounts controlled by Ernst and the debtor, and a third account jointly held by Ernst and her son, Mitchell Ernst, (Id. at ¶ 9). According to Amerisafe, there were approximately 142 such transfers made between 2003 and 2014 with the following totals for each year:
2014 $ 53,607.00
2013 206,262.00
2012 153,809.00
2011 184,049.00
2010 $ 173,102.00
2009 187,159.00
2008 114,432.02
2007 81,313.00
2006 89,661.63
2005 61,595.67
2004 38,743.00
2003 7.525.14
$1,351,259.86
(Id. at ¶ 17). Lisa Ernst orchestrated these transfers through forged and falsified documents as well as false entries in Ameri-safe’s general ledger. (Id. at ¶ 10).
Lisa Ernst was terminated by Amerisafe in March 2014. She was subsequently charged with federal wire fraud and en
DISCUSSION
A. Applicable Standards Under Rules 12(b)(6), 9(b), and 12(e)
Rule 7012(b) of the Federal Rules of Bankruptcy Procedure provides that Rule 12(b)(6) of the Federal Rules of Civil Procedure applies in adversary proceedings. Rule 12(b)(6) allows dismissal if a complaint fails “to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal. 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). To withstand a Rule 12(b)(6) motion, a complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955; see also Elsensohn v. St. Tammany Parish Sheriffs Office, 530 F.3d 368, 372 (5th Cir. 2008) (quoting Twombly, 550 U.S. 544, 127 S.Ct. at 1974, 167 L.Ed.2d 929). A claim satisfies the plausibility test “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 566 U.S. at 678, 129 S.Ct. 1937. Twombly’s plausibility standard is “not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S.Ct. at 1949(internal citations omitted). While a complaint need not contain detailed factual allegations, it must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). The “[fjactual allegations of [a complaint] must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (quotation marks, citations, and footnote omitted). In reviewing a Rule
B. Plaintiffs’ Non-Dischargeability Claims
Plaintiffs allege fraud, fiduciary fraud and/or defalcation, embezzlement, and larceny.
The Bankruptcy Code further excepts from discharge any debt “for fraud or defalcation while acting in a fiduciary capacity, embezzlement or larceny.” 11 U.S.C. § 523(a)(4). This exception “was intended to reach those debts incurred through abuses of fiduciary positions and through active misconduct whereby a debt- or has deprived others of their property by criminal acts; both classes of conduct involve debts arising from the debtor’s acquisition or use of property that is not the debtor’s.” Miller v. J.D, Abrams Inc. (In re Miller), 156 F.3d 598, 602 (5th Cir. 1998) (quoting In re Boyle, 819 F.2d 583, 588 (5th Cir. 1987)). With respect to embezzlement and larceny, the manner in which the debtor comes into possession of the property determines which definition applies. For purposes of section 523(a)(4), embezzlement is defined as the “fraudulent appropriation of property by a person to whom such property has been entrusted, or into whose hands it has lawfully come.” In re Miller, 156 F.3d at 602 (emphasis
C. Non-Dischargeability of Claims Against Community Property Under 11 U.S.C. §§ 524(a)(3), 524(b)(2)
The court first addresses the sufficiency of Amerisafe’s allegations with respect to the community discharge under 11 U.S.C. § 524(a)(3). Section 524(a)(3) grants “fresh-start” protection to after-acquired community property by prohibiting the collection of dischargeable community claims from community property acquired post-petition. This “fresh start” protection is limited to dischargeable claims. Section 524(a)(3) excludes “a community claim that is excepted from discharge under Section 523,... or that would be so excepted,... in a case concerning the debtor’s spouse commenced on the date of the filing of the petition in the case concerning the debt- or....” Section 524(b) further provides that the discharge does not apply if “the court would not grant the debtor’s spouse a discharge in a case under Chapter 7 of this title concerning such spouse commenced on the date of the filing of the petition in the case concerning the debt- or....” 11 U.S.C. § 524(2)(A). Amerisafe’s complaint alleges that (1) the $1,351,259 that Lisa Ernst transferred from Ameri-safe to her three (3) joint bank accounts is a community debt, and (2) her conduct satisfies the element of non-dischargeability under 11 U.S.C. §§ 523(a) (fraud) and 523(a)(4) (embezzlement and larceny). Considering the allegations of the complaint as a whole with respect to Lisa Ernst’s conduct, Amerisafe’s allegations are sufficient to support the exception to the community discharge for after-acquired community property under sections 524(a)(3) and 524(b). The court, therefore, DENIES the debtor’s motion to dismiss with respect to this aspect of Amerisafe’s claim.
D. Non-dischargeability as to the Debt- or’s Separate Property
The court now turns to Ameri-safe’s contention that its claim is non-dis-chargeable as to the debtor personally and his separate property under sections 523(a)(2) and 523(a)(4). Amerisafe’s allegations would be sufficient to state a non-dischargeability claim against Lisa Ernst. Her liability, however, cannot be imputed to the debtor solely based on the spousal relationship. In re Allison, 960 F.2d 481, 485 (5th Cir. 1992); In re Reed, 700 F.2d 986, 993 (5th Cir. 1983) (“The Bankruptcy Court correctly concluded that the Code does not allow attribution of intent from spouse to spouse.”) The courts that have allowed the imputation of fraudulent intent from spouse to spouse do so only in the context of an agency relationship where the two spouses are engaged in business together. See, e.g., In re Oliphant, 221 B.R. 506, 511 (9th Cir. BAP 2005) (“Additionally, for agency principles to apply, it is not enough that the debtors are spouses. A business relationship between the spouses must exist.”) (citing Allison, 960 F.2d at 485). Here, there are no allegations in the complaint supporting an agency or other business relationship between Lisa Ernst and the debtor. Accordingly, Amerisafe must plead facts that would allow the court to draw the reasonable inference that the debtor acted with fraudulent intent in concert with Lisa Ernest, and that his conduct independently satisfies the elements of a non-dischargeability claim under section 523(a). See In re Sauntry, 390 B.R. 848, 854-55 (Bankr. E.D. Tex. 2008) (noting
The complaint does not plead facts demonstrating that the debtor acted in concert with Lisa Ernst to defraud Ameri-safe or that the debtor had actual knowledge of his wife’s fraudulent conduct. Instead, Amerisafe alleges that the funds embezzled by Lisa Ernst flowed into three (3) joint bank accounts. The debtor was named on two of these joint accounts and he allegedly withdrew funds from these two accounts. The third account was jointly held by Lisa Ernst and the Ernsts’ son. Amerisafe contends that the debtor “knew or should have known” of Lisa Ernst’s embezzlement given the total amount deposited in these accounts and the fact that Lisa Ernst allegedly made no more than $45,000 to $50,000 in salary and bonuses per year from 2003 through 2014. There are no allegations detailing how much of the embezzled funds flowed into each account, nor are there any allegations detailing the extent of the debtor’s access or control over the third account.
Factual allegations showing that a debt- or knew about his or her spouse’s fraudulent conduct together with allegations that the debtor benefitted from the fraud may support an inference that the debtor shared in his or her spouse’s intent to defraud. See, e.g., Oliphant, 221 B.R. at 511; Reed, 700 F.2d at 993. Even where, as here, the complaint does not include facts that directly establish the debtor’s knowledge of a spouse’s fraudulent conduct, ' knowledge may be reasonably inferred when “the facts and circumstances are so egregious that denial of knowledge is simply not credible.” Oliphant, 221 B.R. at 511. For example, where the “the nature and extent of the benefit conferred” on the debtor is “great or unusual,” it is reasonable to conclude that the debtor engaged in fraudulent conduct. Id.
Considering the complaint as a whole, Amerisafe’s allegations do not support a reasonable inference that the debtor acted with fraudulent intent in concert with Lisa Ernst for at least two reasons. First, while the complaint pleads facts showing that a significant amount of funds flowed, into the three joint accounts, the allegations only show that the debtor had access and control over two accounts and, more importantly, does not detail how much of the embezzled funds flowed into the accounts that the debtor controlled. Without these allegations, the court cannot draw the reasonable inference that the amounts flowing into the accounts controlled by the debtor were so great or unusual that “denial of knowledge is simply not credible.” Id. Indeed, it is conceivable that the bulk of the transfers could have flowed into the third account, yet there are no allegations showing the extent of the debtor’s access to this account.
Second, the cases allowing inferential proof of knowledge or fraudulent intent on the part of an. “innocent” spouse generally require some showing of egregious or culpable conduct.
Accordingly, the court GRANTS the debtor’s motion to dismiss with respect to Amerisafe’s non-dischargeability claims against the debtor personally and the debtor’s separate property. The court, however, grants leave for Amerisafe to file an amended complaint in conformity with the court’s ruling herein.
CONCLUSION
For the foregoing reasons, the court GRANTS in part and DENIES in part William Ernst’s motion to dismiss under Rule 12(b)(6). The court grants Amerisafe leave to amend the complaint within twenty (20) days of the order granting the motion to dismiss. An order reflecting the court’s ruling has been entered contemporaneously herewith.
SO ORDERED.
. Plaintiffs’ complaint also refers to "wilful and malicious injury” as grounds for non-dischargeability. However, the prayer of the complaint limits the relief sought to "section 523(a)(2) and/or (4)” and does not cite section 523(a)(6)("wilful and malicious conduct") as grounds for relief. (Complaint at ¶ 30). Accordingly, it is unclear whether plaintiffs are seeking non-dischargeability under section 523(a)(6) as an independent ground for relief. To the extent that they are, the court finds that plaintiffs have adequately pled relief with respect to Lisa Ernst and, hence, with respect to the non-dischargeability of claims against post-petition community property. However, for the same reasons set forth below, plaintiffs have not sufficiently pled a claim under section 523(a)(6) with respect to the debtor individually and his separate property.
. A number of cases use the term "innocent spouse." This reference to an "innocent spouse” is a misnomer in cases where liability cannot be imputed under agency principles because the defendant spouse must be found independently liable under section 523(a) and, accordingly, is not "innocent.”
Reference
- Full Case Name
- IN RE: William Howard ERNST, Debtor in Possession. Amerisafe, Inc., American Interstate Insurance Company and Hanover Insurance Company v. William Howard Ernst
- Cited By
- 2 cases
- Status
- Published