PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

In Re: JACQUELINE DUNCAN, 

Debtor.

JAMES DUNCAN, Administrator of the

Estate of Meigan Lin Duncan, a/k/a  No. 05-1159 Yang Chun Song,

Plaintiff-Appellant,

v.

JACQUELINE DUNCAN,

Defendant-Appellee. 

Appeal from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Gerald Bruce Lee, District Judge.

(CA-04-443-1; BK-03-12031; AP-03-01240)

Argued: February 2, 2006

Decided: May 24, 2006

Before MOTZ, TRAXLER, and DUNCAN, Circuit Judges.

Reversed in part and remanded by published opinion. Judge Duncan

wrote the opinion, in which Judge Motz and Judge Traxler joined. 

COUNSEL

Richard George Hall, Annandale, Virginia, for Appellant. Gregory

Harold Counts, TYLER, BARTL, GORMAN & RAMSDELL,

P.L.C., Alexandria, Virginia, for Appellee. 
OPINION

DUNCAN, Circuit Judge: 

James Duncan, acting as the administrator of the estate of Meigan

Lin Duncan a/k/a Yang Chun Song, ("the Estate") appeals an order

of the district court granting summary judgment to Jacqueline Duncan

in this adversary proceeding1 brought by the Estate to challenge the

dischargeability of a judgment debt owed by Mrs. Duncan arising out

of a state wrongful death action. The Estate contends that the district

court erred in granting summary judgment to Jacqueline Duncan

based on the collateral estoppel effect of the state court judgment.

Because the issues decided in the state court proceedings were not

identical to and, therefore, could not collaterally estop litigation of the

controlling issue in this adversary proceeding, we reverse the district

court order and remand for further proceedings.2

I.

On June 9, 1998, Meigan Duncan ("Meigan"), the adopted minor

child of James and Jacqueline Duncan, died as a result of drowning

in a bathtub while in Jacqueline Duncan’s care and custody. Subdural

hemorrhaging and cerebral edema were contributing causes of the

child’s death. The Virginia Medical Examiner performed an autopsy

and listed the drowning as a homicide on the death certificate. 

On May 18, 2000, James Duncan, as representative of Meigan

Duncan’s estate, filed suit against Jacqueline Duncan for wrongful

death in Virginia state court seeking both compensatory and punitive

1

"Adversary proceeding" is a term of art used in bankruptcy practice

for a lawsuit brought within a bankruptcy proceeding for one or more of

the reasons specified in Bankruptcy Rule 7001. Here, the Estate brought

an adversary proceeding under Bankruptcy Rule 7001(6) to determine

the dischargeability of a debt. 

2Because we reverse on this ground, we need not reach the Estate’s

additional argument that the district court procedurally erred by entering

summary judgment in favor of Mrs. Duncan because she had not moved

for it and had not contended below that there was an absence of material

issue of fact that justified entry of judgment in her favor. 

2 IN RE DUNCAN
damages. The lawsuit contended that Jacqueline Duncan caused Meigan’s death either by assaulting her and then leaving her in the bathtub unattended to drown or intentionally drowning her to obscure

evidence of previous abuse. At the close of trial, the jury returned an

award in favor of Meigan’s estate. The jury awarded $15,000 in compensatory damages and $500,000 in punitive damages, which was

later reduced, against Jacqueline Duncan. 

On April 29, 2003, Jacqueline Duncan filed a petition for Chapter

7 bankruptcy in the Eastern District of Virginia and listed the wrongful death award as a debt. The Estate brought this adversary proceeding to contest the dischargeability of the award under 11 U.S.C.

§ 523(a)(6), which makes debts that arise from willful and malicious

injuries nondischargeable in bankruptcy. The Estate then moved for

offensive summary judgment, arguing that the state court judgment

collaterally estopped relitigation of the controlling issue of whether

Jacqueline Duncan intended to injure Meigan. Jacqueline Duncan

opposed the Estate’s motion, but did not cross-move for summary

judgment. 

The bankruptcy court granted the Estate’s motion in part, finding

that Jacqueline Duncan struck Meigan, that the injury was the proximate cause of Meigan’s death, and that the blow was intentional.3

However, the bankruptcy court denied the Estate summary judgment

on the issue of whether the award to the Estate was nondischargeable

as arising from a willful and malicious injury under § 523(a)(6), finding that issue not to be collaterally estopped by the state wrongful

death judgment. 

The Estate then sought and was granted leave to appeal the order

of the bankruptcy court on an interlocutory basis to the district court.

After considering the parties’ arguments, the district court held that

Jacqueline Duncan’s debt to the Estate was dischargeable. The district

court reached this conclusion by initially finding that the Estate had

proved by a preponderance of the evidence that the elements of collateral estoppel had been established. The district court nevertheless

went on to hold that the Estate had failed to meet the stringent

requirement for a finding of nondischargeability under Kawaauhau v.

3These findings were not challenged in this appeal. 

IN RE DUNCAN 3
Geiger, 523 U.S. 57, 61 (1998) as a matter of law. In Geiger, the

Supreme Court found that Congress intended a debt to be nondischargeable under § 523(a)(6) only if the underlying injury was a deliberate or intentional one. According to the district court, the jury verdict

in state court precluded such a finding. The district court therefore

held that Jacqueline Duncan’s debt, stemming from that verdict, was

dischargeable as a part of her bankruptcy petition. The Estate then

appealed to this court.

II.

"We review the judgment of a district court sitting in review of a

bankruptcy court de novo, applying the same standards of review that

were applied in the district court." In re Bogdan, 414 F.3d 507, 510

(4th Cir. 2005). We review findings of fact for clear error and questions of law de novo. Id.

III.

The Estate argues that the district court erred by concluding that

the state court judgment collaterally estopped it from showing that the

debt was nondischargeable as arising from a willful and malicious

injury. The Estate argues, to the contrary, that the state court judgment collaterally estopped Jacqueline Duncan from showing that the

debt was dischargeable. We conclude, however, that the state court

judgment does not support an application of collateral estoppel to the

ultimate issue in the Estate’s adversary proceeding and, therefore, neither party is entitled to summary judgment. 

State court judgments can collaterally estop the litigation of issues

in adversary proceedings in federal bankruptcy court. See In re

Ansari, 113 F.3d 17, 19 (4th Cir. 1997). When determining whether

a state court judgment has such a preclusive effect, we apply the relevant state law of collateral estoppel. Id. Here, because the underlying

wrongful death action was litigated in Virginia, we will apply the law

of the Commonwealth. 

Under Virginia law, a party invoking collateral estoppel must prove

the following five elements: (1) the parties to the two proceedings

4 IN RE DUNCAN
must be the same or in privity; (2) the prior proceeding must have

resulted in a valid and final judgment against the party against whom

preclusion is sought or his privy; (3) the factual issue to be precluded

must have been actually litigated in the prior proceeding; (4) the factual issue to be precluded must have been essential to the judgment

in the prior proceeding; and (5) there must be mutuality, "that is, a

party is generally prevented from invoking the preclusive force of a

judgment unless that party would have been bound had the prior litigation of the issue reached the opposite result." TransDulles Center,

Inc. v. Sharma, 252 Va. 20, 22-23, 472 S.E.2d 274, 275 (1996). An

issue is subject to collateral estoppel only if it is identical to an issue

decided in a prior proceeding. See Angstadt v. Atlantic Mut. Ins. Co.,

249 Va. 444, 447, 457 S.E.2d 86, 87-88 (1995); Sevachko v. Commonwealth, 32 Va. App. 561, 564-65, 529 S.E.2d 803, 804 (2000). 

The first two elements of this analytical framework present no difficulty here. Both the Estate and Jacqueline Duncan were parties to

the state court proceeding that resulted in a valid and final judgment

against Jacqueline Duncan. The fifth element, mutuality, likewise

presents no difficulty. The state court litigation necessarily bound

both the Estate and Jacqueline Duncan because they were the only

parties to that proceeding. See Angstadt, 249 Va. at 447, 457 S.E.2d

at 88. Therefore, the question of whether collateral estoppel applies

turns on resolution of the third and fourth elements of the analysis:

whether the issue to be precluded was actually litigated in and necessary to the state court judgment. 

The controlling issue in the adversary proceeding is whether Jacqueline Duncan intended to injure her daughter. Under 11 U.S.C.

§ 523(a)(6), a debt is not dischargeable in a Chapter 7 bankruptcy if

it arises from a "willful and malicious injury by the debtor to

another." 11 U.S.C. § 523(a)(6). As the Supreme Court instructs in

Geiger, § 523(a)(6) applies only to "acts done with the actual intent

to cause injury." 523 U.S. at 61 (emphasis added). Section 523(a)(6)

is not satisfied by negligent, grossly negligent or reckless conduct. Id.

at 62-64; Zygulski v. Daugherty, 236 B.R. 646, 653 (Bankr. N.D. Ind.

1999); In re Scarlata, 127 B.R. 1004, 1013 (Bankr. N.D. Ill. 1991).

Moreover, the mere fact that a debtor engaged in an intentional act

does not necessarily mean that he acted willfully and maliciously for

purposes of § 523(a)(6). See In re Moore, 357 F.3d 1125, 1128 (10th

IN RE DUNCAN 5
Cir. 2004); In re Williams, 337 F.3d 504, 509 (5th Cir. 2003); In re

Miller, 156 F.3d 598, 604 (5th Cir. 1998). "[N]ondischargeability

takes a deliberate or intentional injury, not merely a deliberate or

intentional act that leads to injury." Geiger, 523 U.S. at 61 (emphasis

in original). 

Therefore, in order for collateral estoppel to apply here, the issue

of whether Jacqueline Duncan intended to injure Meigan (as opposed

to engaging in an intentional act that injured the child) must have

been both litigated in and necessary to the state court proceeding.

Sharma, 252 Va. at 22-23, 472 S.E.2d at 275. It must also be identical

to an issue litigated in the state court. Angstadt, 249 Va. at 447, 457

S.E.2d at 87-88. The Estate grounds its argument for precluding the

litigation of this issue on two aspects of the state court judgment: (a)

the finding that Jacqueline Duncan was liable for wrongful death, and

(b) the jury’s award of punitive damages. We will consider each in

turn. 

1. Wrongful Death

The finding that Jacqueline Duncan was liable for wrongful death

does not support the application of collateral estoppel because it was

judged by a different legal standard than the "willful and malicious

injury" inquiry under § 523(a)(6). The Estate filed suit against Jacqueline Duncan under Va. Code Ann. § 8.01-50, which governs wrongful

death actions in the Commonwealth. That statute provides for a cause

of action "[w]henever the death of a person [is] caused by the wrongful act, neglect, or default" of another party. Va. Code Ann. § 8.01-50.

At trial, the state court instructed the jury that, in order to find Jacqueline Duncan liable for wrongful death, it had to find that "the Defendant was willful and wanton in her conduct toward her daughter" and

that such conduct was the proximate cause of Meigan’s death. J.A.

285E. The judge defined the term "willful and wanton conduct" as

acting consciously in disregard of [Meigan] or acting with

a reckless indifference to the consequences to [Meigan]

when the Defendant is aware of her conduct and is also

aware, from her knowledge of existing circumstances and

conditions, that her conduct would probably result in injury

to [Meigan]. 

6 IN RE DUNCAN
J.A. 87. 

This definition created two distinct categories of "willful and wanton conduct: "(1) conduct that was in conscious disregard of Meigan,

and (2) conduct that exhibited reckless indifference to the consequences to Meigan. Both of these categories set a lower bar for a finding of "willful and wanton conduct" than § 523(a)(6) sets for a finding

of a "willful and malicious injury" because neither required the Estate

to prove that Jacqueline Duncan intended to injure Meigan. Therefore, the wrongful death judgment did not involve an identical issue

to the controlling issue here and does not support entry of summary

judgment in favor of either party based on collateral estoppel. See

Angstadt, 249 Va. at 447, 457 S.E.2d at 88.

2. Punitive Damages

The state court judgment for punitive damages likewise does not

support application of collateral estoppel because the record does not

establish that it was based on a finding identical to the controlling

issue under § 523(a)(6). See id. The state court jury entered a punitive

damages award against Jacqueline Duncan based on the following

instruction:

If you find your verdict for the Plaintiff and if you believe

by the greater weight of the evidence that the Defendant’s

conduct was willful, one, or was so reckless as to evince a

conscious disregard for the safety of [Meigan] you may also

award punitive damages to the Plaintiff. 

J.A. 285G. Under this instruction, the jury could have found that Jacqueline Duncan was liable for either willful conduct or reckless conduct. The record contains no indication of which of these two

standards the jury employed. 

It is this gap in the record that renders summary judgment based

on collateral estoppel inappropriate. One of the two standards in the

punitive damages instruction — recklessness — is satisfied by conduct that is inadequate for purposes of § 523(a)(6). Geiger, 523 U.S.

at 64 (1998) ("debts arising from recklessly . . . inflicted injuries do

IN RE DUNCAN 7
not fall within the compass of § 523(a)(6)"). Even if we were to

assume that the willful conduct portion of the punitive damages

instruction is synonymous with a "willful and malicious injury" under

§ 523(a)(6), nothing before us suggests that the jury made its determination on that basis. We cannot say that the punitive damages award

necessarily involved a finding identical to the § 523(a)(6) inquiry

since the jury could have based its award on a finding of recklessness.

Both because such a possibility exists and because Virginia law

requires an identity of issues for collateral estoppel to apply, we cannot conclude that the question of whether Meigan’s death was a "willful and malicious injury" was litigated in and necessary to the award

of punitive damages. Accordingly, application of collateral estoppel

based on the punitive damages award is inappropriate here. 

At bottom, neither the wrongful death nor the punitive damages

award in the state court involved the issue of whether Jacqueline Duncan intended to injure Meigan that controls resolution of this adversary proceeding. Because issues must be identical for collateral

estoppel to apply, and such identity is lacking here, the state court

judgment does not support application of collateral estoppel to the

Estate’s nondischargeability claim under 11 U.S.C. § 523(a)(6).

IV.

In light of the foregoing, we reverse the order of the district court

and remand for further proceedings consistent with this opinion. 

REVERSED IN PART AND REMANDED

8 IN RE DUNCAN