                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2002

In Re Fonner
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4189




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Recommended Citation
"In Re Fonner " (2002). 2002 Decisions. Paper 627.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/627


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                                                NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                           __________

                          No. 01-4189
                           __________

                  IN RE: ROBERT L. FONNER and
                           SHARON L. FONNER
                                      Debtors

               ROBERT L. FONNER; SHARON L. FONNER

                               v.

   DAVID H. OVERDORF, Administrator Of The Estate of Kristen
Overdorf, Deceased; EDWARD J. BALZARINI, JR.; BALZARINI & WATSON

                               Sharon L. Fonner,
                                              Appellant
                           __________

        ON APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                   D.C. Civil No. 01-cv-01278
        District Judge: The Honorable Gary L. Lancaster
                           __________

           Submitted Under Third Circuit LAR 34.1(a)
                       September 26, 2002
                           __________

        Before: BARRY, AMBRO, and GARTH, Circuit Judges

              (Opinion Filed: September 30, 2002)
                          ____________

                            OPINION
                          ____________
BARRY, Circuit Judge
     Sharon L. Fonner appeals from the District Court’s October 9, 2001 order
affirming the May 22, 2001 order of the Bankruptcy Court reopening her bankruptcy case
and finding that she had assigned certain rights to appellee, the Estate of Kristen Overdorf
("Estate"). Because the District Court sits as an appellate court in bankruptcy cases, our
review of its decision is plenary. Cinicola v. Scharffenberger, 248 F.3d 110, 115 n.1 (3d
Cir. 2001). In turn, we review the Bankruptcy Court’s factual findings for clear error, and
exercise plenary review over its conclusions of law. In re: New Valley Corporation, 181
F.3d 517, 522 (3d Cir. 1999). The District Court had jurisdiction to review the
Bankruptcy Court’s order under 28 U.S.C. 158(a). Our jurisdiction is proper pursuant
to 28 U.S.C. 1291. We will affirm.

                                I.
     The facts surrounding this appeal are well known to the parties, and have been
detailed extensively in the Memorandum Opinion of the Bankruptcy Court and in
Overdorf v. Fonner, 748 A.2d 682, 683-84 (Pa. Super. 2000), of which the Bankruptcy
Court took judicial notice. We briefly review them here.
     In April, 1991, Fonner was driving a car that struck and killed Kristen Overdorf,
who was riding a bicycle. Fonner’s husband, joint debtor Robert Fonner, had rented the
car from Tomsic Motor Company. The Fonners had personal automobile insurance
coverage from Travelers Insurance Company, and excess coverage was available through
Tomsic’s insurers, Allstate Insurance Company and Motorists Mutual Insurance
Company.
      After some maneuvering by the insurance companies, Overdorf’s administrator
rejected an offer by Travelers and commenced an action in Pennsylvania state court
against the Fonners, Tomsic Motors, and others. While this action was ongoing, the
Fonners filed a voluntary chapter 7 bankruptcy petition in October, 1995, which stayed
the action as to them. In none of the Fonner’s chapter 7 filings, however, did reference to
the Overdorfs or the lawsuit appear. Thus, the Estate was not then notified of the
bankruptcy filing.
      In December, 1995, the Fonners added the Estate to the list of creditors, and in
January, 1996, the Estate entered an appearance and requested copies of all notices
pertaining to the bankruptcy proceedings. On February 23, 1996, the Fonners were
granted a general discharge and were released from all dischargeable debts. The
bankruptcy case was closed on February 28, 1996.
      The next day, the Estate moved to reopen the case to allow it to seek a
modification of the discharge order, with an accompanying motion for modification. Ms.
Fonner did not object and, according the Bankruptcy Court, "appeared amenable to the
entry of any order which enabled her to receive a discharge while agreeing to any
procedure which allowed Overdorf’s estate to pursue applicable insurance coverage."
A.10.
      The Bankruptcy Court heard argument on the motion on April 1, 1996, and entered
a modified consent order reopening the case. After Fonner moved to amend the relevant
schedule to list the Estate’s claim, the Bankruptcy Court entered an order on May 14,
1996 modifying the February discharge order, and the case was again closed on June 27,
1996.
      The state court action against Fonner proceeded to trial, and resulted in a judgment
against her and in favor of the Estate in the amount of $862,500. Delay damages were
awarded by the trial court in the amount of $377,140.59. Interest was added, yielding a
total judgment of $1,239,640.59, entered in July of 1999.
      In late 2000, the Estate apparently contacted Fonner to request an assignment of
her rights against the insurance companies. In February, 2001, Fonner refused. On
February 23, 2001, in response to what she perceived as threats from the Estate to
commence an action in another jurisdiction to seize Fonner’s personal assets to satisfy the
state court judgment, Fonner brought an emergency motion to reopen the bankruptcy case
and enjoin the Estate from enforcing or collecting on the judgment. The Estate responded
by moving to again modify the May, 1996 discharge order to clarify that Fonner had in
fact assigned to the Estate the rights in question. The Estate argued that Fonner’s refusal
in 2001 to do so violated the modified discharge order. By order dated May 22, 2001, the
Bankruptcy Court reopened the case, denied the injunction, and granted the Estate its
requested relief under Fed. R. Civ. Proc. 60(b)(6).
      Fonner timely appealed that order to the District Court, which adopted the
Bankruptcy Court’s memorandum opinion and affirmed its May 22, 2001 order on
October 9, 2001. Fonner timely appealed to this Court.

                               II.
     Fonner argues that the District Court erred in affirming the Bankruptcy Court’s
order granting the Estate relief under Rule 60(b)(6) and "compelling" the assignment of
Fonner’s bad faith claims against her insurance carriers to the Estate. Both arguments
turn on the Bankruptcy Court’s conclusion that the May 14, 1996 order was both (1) an
assignment by Fonner to the Estate of any rights she had against Travelers and / or
Motorists Mutual and (2) an authorization by Fonner to the Estate to pursue legal
proceedings against the insurance companies to enforce those rights.
     The Estate argues that this was a factual finding entitled to considerable deference
and to be overturned only if clearly erroneous, citing John F. Harkins Co., Inc. v.
Waldinger Corp., 769 F.2d 657 (3d Cir. 1986). Fonner argues that the Bankruptcy
Court’s decision to grant relief under Rule 60(b)(6) is reviewed for abuse of discretion.
This is the correct standard. See Page v. Schweiker, 786 F.2d 150, 152 (3d Cir. 1986)
("[T]he grant or denial of . . . motions under Rule 60(b) [other than (b)(4)]. . . may be
reversed only for an abuse of discretion").

                                A.
     Fonner argues, first, that relief under Rule 60(b)(6) was improperly granted
because a "change in the law" or, in the alternative, what the Bankruptcy Court saw as the
inequitable consequences for the Estate were not grounds justifying relief. Fonner
suggests, with reference to the former, that the Court ruled as it did to avoid the impact of
Brown v. Candelora, 708 A.2d 104 (Pa. Super. 1998), a state case decided after the initial
modified discharge order but before the current litigation. The Bankruptcy Court,
however, explicitly stated that Candelora was not a change in the law, and that it was not
the basis for its decision. Thus, a significant portion of Fonner’s argument on appeal, i.e.
that portion that attacks the propriety of a change in the law justifying Rule 60(b)(6)
relief, is simply inapposite.
     It is clear from the Bankruptcy Court’s opinion that the primary ground for its
ruling was the extreme hardship that would result to the Estate absent a clarification of
the discharge order. Accordingly, much of the case law cited by both parties is unhelpful,
as the cases focus on whether a change in the law is an extraordinary circumstance
justifying relief under Rule 60(b)(6). See, e.g., Blue Diamond Coal Co. v. Trustees of the
UMWA Combined Benefit Fund, 249 F.3d 519 (6th Cir.), cert. denied sub nom. Blue
Diamond Coal Co. v. Barnhart, 122 S. Ct. 643 (2001); Cincinnati Ins. Co. v. Flanders
Elec. Motor Svc., Inc., 131 F.3d 625, 630 (7th Cir. 1997); Wilson v. Fenton, 684 F.2d 249
(3d Cir. 1982). Moreover, these cases belie Fonner’s assertion that economic harm can
never justify relief: in Cincinnati Ins. Co., for instance, the Seventh Circuit found only
that the district court did not abuse its discretion in ruling that the party in question had
not made the requisite "compelling showing of [sufficient] hardship and unfairness" to
warrant 60(b)(6) relief. 131 F.3d at 630. Here, the Bankruptcy Court concluded that the
Estate had made such a showing. It explicitly found that refusing to reopen the case and
modify the discharge order would work an "extreme injustice" upon the Estate by
inequitably depriving the Estate of substantial damages. Any benefit of denying the
Estate’s motion would only redound to the insurance companies involved; granting the
relief, it found, was "appropriate to accomplish justice." A.17 (quoting Klapprott v.
United States, 335 U.S. 601, 615 (1949) (noting appropriate use of Rule 60(b)(6) to
"accomplish justice")). The Court expressly rejected the "change in law" rationale, and
expressly found the "extraordinary circumstances" necessary under Rule 60(b)(6). We
cannot say that, in granting relief, the Court abused its discretion.
     Similarly unavailing is Fonner’s challenge to the Bankruptcy Court’s finding that
the modified discharge order was an implicit assignment by her of her bad faith claims
against her insurance carriers to the Estate. After extensive briefing and oral argument on
the motion to amend the discharge order, the Bankruptcy Court explicitly found that the
parties’ intent was to assign all rights, and that this intent was reflected in the breadth of
the language of the discharge order. The Court was well within its rights to make the
finding that it did, and we will not overturn it.

                                B.
     Fonner also argues that the Bankruptcy Court contravened existing law (state and
federal) in "compelling" her to assign her rights against the insurance companies to the
Estate and that the District Court erred in affirming the Bankruptcy Court’s May 22, 2001
order, with its factual finding that the intent of the parties to assign was reflected in the
modified discharge order. It is that factual finding which, at bottom, we review and not
any issue of state law or the effect of the finding on any state court much less whether
state law was "contravened." Viewing the record as a whole, see Harkins Co., 769 F.2d
at 662, we cannot say that that finding was clearly in error.
     We also reject Fonner’s argument that the May 22, 2001 order contravened federal
law, i.e., the Bankruptcy Code itself, by "conditioning" the discharge of Fonner’s liability
on her assignment of her rights as against the insurance companies. The order does no
such thing.
     Fonner claims that the Bankruptcy Court "expressly held that its new discharge
order constituted an assignment of Appellant’s rights against the insurance carriers as
quid pro quo for her discharge." Appellant’s Opening Brief at 27 (first emphasis added).
She then quotes the Bankruptcy Court’s opinion:
     In return for receiving a discharge of her debt to Overdorf’s estate,
     [Appellant] became obligated in the first modification to do whatever was
     required to enable [Appellee] to collect any favorable judgment from any
     applicable liability insurance, including assigning to [Appellee] any rights
     she may have against her insurers.

Id. (quoting A.18). But it is entirely clear, when viewed in context, that the Bankruptcy
Court was saying something different from that which Fonner alleges. The Court was not
holding that her discharge would be in exchange for any assignment, as is suggested by
Fonner’s discussion of the Court’s "new discharge order." Rather, the Court was
describing what the parties had intended to happen, and what had happened, upon that
discharge.
     We reject as well Fonner’s contention that the Bankruptcy Court has compelled
her to assign her rights against the insurance companies. It did not. Regardless of her
intent at this point in time, the May 2001 order interprets the modified discharge order,
expressing a finding of fact as to her intent then. The order interprets but does not
"compel," and we do not find error.

                               III.
     We will affirm the District Court’s order of October 9, 2001.

TO THE CLERK OF THE COURT:
     Kindly file the foregoing Opinion.

                                   /s/ Maryanne Trump Barry
                                   Circuit Judge
