NOTE & COMMENT: Confusion Over 522(d)(11)(D): What Congress Really Meant by Exempting Payments for "Personal Bodily Injury" and Why They Got It Wrong Skip over navigation
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Copyright (c) 2000 Emory University School of Law
Emory Bankruptcy Developments Journal

NOTE & COMMENT: Confusion Over 522(d)(11)(D): What Congress Really Meant by Exempting Payments for "Personal Bodily Injury" and Why They Got It Wrong

2000

16 Bank. Dev. J. 503

Author

Louis J. Papera *

Excerpt

INTRODUCTION

In terms of statutory interpretation, one of the most potentially troublesome federal bankruptcy exemptions is 522(d)(11)(D) of the Bankruptcy Code, concerning the debtor's right to receive "a payment, not to exceed $ 16,150, on account of personal bodily injury, not including pain and suffering or compensation for actual pecuniary loss, of the debtor or an individual of whom the debtor is a dependant." 1 At first glance, the provision seems to be relatively straightforward, but on closer examination, the terms employed by the statute seem to cancel each other out by excluding every possible element of a personal injury recovery, rendering the exemption useless.

For this reason, bankruptcy courts have had difficulty applying the provision--especially when the "personal bodily injury" at issue includes, in part or in whole, mental and/or emotional injuries. Several courts have differed over the circumstances in which such injuries are exemptible, and a few have even held that the provision does not apply to mental or emotional injuries at all. Such inconsistency is troubling in and of itself, and because many of the approaches taken by the courts are at odds with each other, at least some, if not all, of them must be incorrect applications of the law.

To date, the issue has arisen in only a handful of cases. In the words of one bankruptcy court, "there is a paucity of case law interpreting Section 522(d)(11)(D)." 2 The potential scope of the problem, however, is quite ...
 
 
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