United States Court of Appeals

For the First Circuit

No. 07-1925

IN RE MARY G. LARSON,

Debtor

____________________

MARY G. LARSON,

Plaintiff, Appellant,

v.

LLOYD L. HOWELL, JR., et al., and STEPHEN E. SHAMBAN,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Rya W. Zobel, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Stahl, Senior Circuit Judge,

and Howard, Circuit Judge.

Gary W. Cruickshank for appellant.

Edward Fegreus with whom Frederick J. Watson was on brief for

appellees.

January 23, 2008
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LYNCH, Circuit Judge. This case requires us, as a matter

of first impression, to determine whether the state crime of

negligent vehicular homicide qualifies as a "criminal act" which

would cap a debtor's homestead exemption to $125,000 under the

Bankruptcy Abuse Prevention and Consumer Protection Act of 2005

("BAPCPA"), Pub. L. No. 109-8, § 322(a), 119 Stat. 23, 97 (codified

at 11 U.S.C. § 522(q)(1)(B)(iv)). We hold that where a state court

has found the debtor was criminally liable for negligent homicide,

such a finding triggers the federal statutory cap on state

homestead exemptions under the BAPCPA.

I.

The District Attorney of Plymouth County, Massachusetts,

on September 12, 2002, filed criminal charges against Mary Larson,

including a count of negligent homicide by motor vehicle under

Mass. Gen. Laws ch. 90, § 24G(b). At a hearing on November 11,

Larson admitted the following facts. On September 8, 2002, Larson,

then age 69, was driving her van in East Bridgewater,

Massachusetts, when she decided to take a shortcut home through a

parking lot. As she turned left across the other lane of traffic

and into the lot, Larson struck the oncoming motorcycle of Lloyd

Howell, who was driving straight through in the opposite lane.

Howell's wife, Sherri LaMattina-Howell, a passenger on the

motorcycle, died as a result. Larson said she did not see the

oncoming motorcycle, but admitted she caused the accident. The
As Howell notes, "[a]n admission to sufficient facts may 1

be introduced against the defendant in a subsequently litigated

civil suit arising out of the same incident on the theory that the

proceeding was the functional equivalent of a guilty plea, with the

same degree of finality." Hopkins v. Madeiros, 724 N.E.2d 336, 346

(Mass. App. Ct. 2000) (quoting Flannery et al., Massachusetts

Evidence § 3.5.1(b) (1999)) (internal quotation marks omitted). 

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judge found facts sufficient to find Larson guilty of negligent

vehicular homicide, and continued the case without a finding for

one year.

The accident also spurred a civil action in state court.

In September of 2002, Howell filed a wrongful death lawsuit seeking

damages against Larson for the death of his wife, his own injuries,

and the harm to his two young children. Howell voluntarily stayed

the tort action pending disposition of the criminal proceedings.

The civil suit resumed and on May 24, 2005, the state

court granted summary judgment on the issue of liability for most

of Howell's claims. Howell and Larson settled the case for 1

$1,000,000.

Larson filed a petition for bankruptcy under Chapter 7 in

the Bankruptcy Court for the District of Massachusetts on October

11, 2005. On November 15, Larson claimed a homestead exemption

under state law in the amount of $500,000. See Mass. Gen. Laws ch.

188, § 1A. On December 29, Howell objected to the amount of the

homestead exception, contending that it should be limited to

$125,000 under 11 U.S.C. § 522(q)(1)(B)(iv), which caps homestead

exemptions claimed under state or local law at $125,000 if "the
The amount of the cap is currently set at $136,875 2

according to the triennial dollar-amount adjustments mandated by 11

U.S.C. § 104(b). The previous amount of $125,000 applies here, as

the case was filed before the amount was adjusted to its current

level. See 11 U.S.C. § 104(b)(3).

Larson further argued that the cap in § 522(q)(1) does 3

not apply to the extent that the amount of an interest in property

is reasonably necessary for the support of the debtor and her

dependents. See 11 U.S.C. § 522(q)(2). Larson has abandoned this

argument on appeal, apparently because her monthly income is ample

enough to cover her expenses.

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debtor owes a debt arising from . . . any criminal act, intentional

tort, or willful or reckless misconduct that caused serious

physical injury or death to another individual in the preceding 5

years." Howell argued that negligent vehicular homicide is a 2

"criminal act," and that the disposition in the criminal case

triggered the cap. On January 3, the bankruptcy trustee

independently objected to Larson's homestead exemption on the same

grounds.

Larson opposed the reduction in amount, though she

repeated her admissions of responsibility for the accident and for

LaMattina-Howell's death. Larson presented the same arguments she

now makes on appeal: that § 522(q)(1)(B)(iv) did not cap her

homestead exemption because (1) the "criminal act" language

requires a level of mens rea beyond mere negligence; (2) the

disposition in the state court was insufficient to establish a

"criminal act"; and (3) Massachusetts public policy requires that

homestead exemptions be liberally construed.3
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On April 5, 2006, the bankruptcy court issued an opinion

finding that the accident constituted a "criminal act" under

§ 522(q)(1)(B)(iv). In re Larson, 340 B.R. 444 (Bankr. D. Mass.

2006). On May 15, 2007, the district court affirmed the bankruptcy

court's decision. Larson v. Howell (In re Larson), No. 06-11662,

2007 WL 1444093 (D. Mass. May 15, 2007). Larson appealed. We

affirm.

II.

Larson's appeal presents no contested factual issues, and

we review the legal conclusions of the bankruptcy court de novo.

Bourne v. Northwood Props. (In re Northwood Props.), ___ F.3d ___,

2007 WL 4209261, at *4 (1st Cir. Nov. 30, 2007) (citing Official,

Unsecured Creditors' Comm. v. Stern (In re SPM Mfg. Corp.), 984

F.2d 1305, 1310-11 (1st Cir. 1993)); see also United States v.

Yellin (In re Weinstein), 272 F.3d 39, 42 (1st Cir. 2001) ("A

question of the interpretation of the Bankruptcy Code, like any

other question of statutory interpretation, is a question of law

that we review de novo.").

Larson first argues that the term "criminal act" in the

BAPCPA requires more than mere negligence in order to trigger the

$125,000 cap. We begin with the language of the statute. See,

e.g., Duncan v. Walker, 533 U.S. 167, 172 (2001). The statute

provides that the cap applies where the debtor's debt arises from

"any criminal act, intentional tort, or willful or reckless
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misconduct" causing serious physical injury or death in the

preceding five years. 11 U.S.C. § 522(q)(1)(B)(iv). Larson argues

that the phrase "any criminal act" must be read as equivalent to

the language referencing "intentional" torts and "willful or

reckless" misconduct resulting in physical injury or death. Not

so. The use of the disjunctive "or" indicates that a "criminal

act" alone may trigger the subsection, in addition to an

"intentional tort" or "willful or reckless misconduct." The terms

mean different things, as the "or" signifies. There is no language

modifying "criminal act" to indicate that Congress meant to limit

the statute's operation to the subset of crimes defined in part by

intentionality, willfulness or recklessness. Nor did Congress say

"any criminal act except those defined as criminal negligence."

Incidents of criminal negligence can result in physical injury or

death. Congress chose to limit the ability of individuals who face

monetary liability for such crimes to shelter their assets under

state homestead exemption provisions.

Larson points to a snippet of what she calls legislative

history in an effort to buttress her claim that § 522(q)(1)(B)(iv)

only applies to crimes involving intentional, willful, or reckless

behavior. A House conference report from 2002 stated that "[t]he

conferees intend that the language in Section 522(q)(1) be

liberally construed to encompass misconduct that rises above mere

negligence under applicable state law." H.R. Rep. No. 107-617,
Even were we to consider the language from the conference 4

report, the report's value to the appellant is far from clear. The

excerpted language itself directs that § 522(q)(1) be "liberally

construed" to encompass various kinds of misconduct, rather than be

construed as excluding conduct otherwise reasonably included.

Further, no indication is given that the excerpt was intended to

apply to criminal acts. Indeed, one might expect a comment about

"rising above mere negligence" to refer to the language in

§ 522(q)(1) directed at tort law. Finally, the behavior to which

Larson admitted, "operat[ing] a motor vehicle recklessly or

negligently so that the lives or safety of the public might be

endangered and [thereby cause] the death of another person," Mass.

Gen. Laws ch. 90, § 24G(b), may well be more serious than what the

report terms "mere" negligence in any case.

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2002 WL 1751306, at 222 (2002) (Conf. Rep.). The argument fails

for at least two reasons.

First, legislative history does not trump unambiguous

statutory text. See Lamie v. U.S. Tr., 540 U.S. 526, 534 (2004)

("[W]hen the statute's language is plain, the sole function of the

courts -- at least where the disposition required by the text is

not absurd -- is to enforce it according to its terms." (quoting

Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530

U.S. 1, 6 (2000)) (internal quotation marks omitted)); In re

Weinstein, 272 F.3d at 43. The plain language reaches a result

which is far from absurd.4

Second, even if there were room to look at statutory

history, the conference report accompanied a version of the statute

that was never enacted. See Bankruptcy Abuse Prevention and

Consumer Protection Act of 2002, H.R. 333, 107th Cong. There is no

analogous language in the legislative history accompanying the
Larson argues the bankruptcy court should at least have 5

held an evidentiary hearing to determine whether her actions

qualified as a "criminal act" under the statute. That would have

been error. Respect must be given to state court decisions.

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version of § 522 that was actually enacted by Congress as part of

the BAPCPA in 2005. See H.R. Rep. No. 109-31(I) (2005), as

reprinted in 2005 U.S.C.C.A.N. 88. This isolated reference in a

congressional report accompanying a version of a bill never enacted

as law can just as easily be understood to have been rejected by

the drafters of the later bill that was enacted. We hold that the

term "criminal act" in § 522(q)(1)(B)(iv) does not exclude crimes

of negligence.

Larson's next line of defense is that a debtor must be

"convicted" of a "criminal act" in order for § 522(q)(1)(B)(iv) to

apply. But the literal lines of § 522(q)(1)(B)(iv) do not require 5

a "conviction" as a prerequisite to application of the cap on

homestead exemptions claimed under state law. By contrast, a

separate subsection of the statute makes explicit reference to

conviction as a requirement for application of the cap. Section

522(q)(1)(A) applies the exemption limit where "the debtor has been

convicted of a felony . . . which under the circumstances,

demonstrates that the filing of the case was an abuse of the

provisions of this title." This is not true of § 522(q)(1)(B)(iv),

which applies wherever the debtor's debt "aris[es] from . . . any

criminal act." "[W]here Congress includes particular language in
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one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally

and purposely in the disparate inclusion or exclusion." Russello

v. United States, 464 U.S. 16, 23 (1983) (quoting United States v.

Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)) (alteration in

original) (internal quotation marks omitted); see also Trenkler v.

United States, 268 F.3d 16, 23 (1st Cir. 2001) (endorsing

Russello's interpretive canon). We do not need to go further. It

is evident that the criminal act requirement is met on the facts of

this case.

We quickly dispose of Larson's subsidiary contention that

the state court's disposition of the criminal charges does not

establish a "criminal act." Under state law, she effectively pled

guilty to the crime. In the criminal action, Larson admitted to

facts necessary for the court to find that she was guilty of

negligent vehicular homicide under Mass. Gen. Laws ch. 90,

§ 24G(b). The court's order of a continuance without a finding was

based on those admissions and is a commonly used device in

Massachusetts criminal courts. Under state law, "an admission of

facts sufficient for finding of guilt . . . shall be deemed a

tender of a plea of guilty" for purposes of requesting a

continuation without a finding. Mass. Gen. Laws ch. 278, § 18; see

also Commonwealth v. Sebastian S., 827 N.E.2d 708, 712 (Mass.
We do not reach the question of whether a bankruptcy 6

court is precluded from entertaining a constitutionally based

collateral attack on an underlying state finding of guilt. There

would be no basis for such an attack here. Under a continuance

without a finding, the defendant waives her right to a jury trial

and becomes subject to probation-like terms for the duration of the

continuance. See Sebastian S., 827 N.E.2d at 712. If the

defendant violates those terms, "the 'admission' remains and may

ripen into an adjudication of guilt and imposition of sentence."

Commonwealth v. Villalobos, 777 N.E.2d 116, 120 (Mass. 2002).

Here, the state court judge presiding over the criminal action

informed Larson of the consequences of her admissions and the

continuance without a finding, including her relinquishment of her

jury trial rights. See Mass R. Crim. P. 12(a)(3) ("The judge shall

not accept [] a plea or admission without first determining that it

is made voluntarily with an understanding of the nature of the

charge and the consequences of the plea or admission.").

We also need not address the question of the

applicability of, or procedure under, § 522(q)(1)(B)(iv) where the

existence of a criminal act has not been established previously in

criminal proceedings by conviction, plea, or otherwise.

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2005). As a matter of law, the bankruptcy court appropriately 6

relied on the state law characterization of the effect of the

continuance without a finding.

Larson's remaining arguments require little discussion.

Larson points out that Massachusetts courts construe state

homestead exemptions liberally in favor of debtors. See Garran v.

SMS Fin. V, LLC (In re Garran), 338 F.3d 1, 6 (1st Cir. 2003)

(citing Shamban v. Masidlover, 705 N.E.2d 1136, 1138 (Mass. 1999)).

Even if true, it is irrelevant. Construction of a federal

statutory cap on homestead exemptions is involved here.

Finally, Larson makes a new argument on appeal. She

contends that the bankruptcy court erred by failing to take

evidence regarding whether her insurance policy contained a
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criminal acts exclusion clause. Larson reasons that if there were

such a clause in the policy and that Howell nevertheless collected

a payment from the insurer, then the insurer's belief that no

criminal act occurred should control on the issue of whether Larson

committed a "criminal act" within the bankruptcy proceedings.

Larson did not advance this argument in the Bankruptcy Court; the

argument is thus forfeited. Cf. Dávila v. Corporación de P.R. Para

la Difusión Pública, 498 F.3d 9, 14 (1st Cir. 2007). Even so, it

is clear that whatever the language of an insurance policy, the

insurer's own interpretation of that language has no bearing on

this court's interpretation of § 522(q)(1)(B)(iv).

The judgment of the district court is affirmed.