Tober v. Lang (In Re Tober) , 688 F.3d 1160 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
In re: JOAN A. TOBER, 
Debtor,
No. 11-60018
JOAN A. TOBER,
Appellant,  BAP No.
10-1206
v.
BETH LANG, Chapter 7 Trustee,
Appellee.

In re: RONDA LIANE HUMMEL, 
Debtor,
No. 11-60019
RONDA LIANE HUMMEL,
Appellant,  BAP No.
10-1202
v.
OPINION
TRUDY A. NOWAK, Chapter 7
Trustee,
Appellee.

Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Jury, and Bauer, Bankruptcy Judges, Presiding
Argued and Submitted
April 17, 2012—San Francisco, California
Filed August 10, 2012
9129
9130 IN RE TOBER
Before: Alex Kozinski, Chief Judge, M. Margaret McKeown
and N. Randy Smith, Circuit Judges.
Opinion by Judge N.R. Smith
IN RE TOBER 9131
COUNSEL
Alan R. Solot, Tilton & Solot, Tucson, Arizona, for the appel-
lants.
Trudy A. Nowak, Phoenix, Arizona, for the appellees.
OPINION
N.R. SMITH, Circuit Judge:
Arizona Revised Statutes Sections 33-1126(A)(6) and (7)
allow a debtor in a bankruptcy proceeding to exempt the cash
surrender value of life insurance policies and proceeds of
annuity contracts from the bankruptcy estate if the debtor
names certain beneficiaries. Arizona law requires us to con-
9132 IN RE TOBER
strue these bankruptcy statutory exemptions in favor of the
debtor. As a matter of first impression in Arizona, we con-
clude that the statutory text does not require a debtor’s child
to be a “dependent” to qualify for the exemption. Therefore,
we REVERSE the Bankruptcy Appellate Panel’s (“BAP”)
ruling and REMAND for further proceedings consistent with
this opinion.
I. FACTS AND PROCEDURAL HISTORY
When Ronda Hummel filed her Chapter 7 petition, she
owned three life insurance policies, each of which named her
adult, non-dependent daughter as the beneficiary. Hummel
claimed them exempt.
Similarly, when Joan Tober filed her Chapter 7 petition,
she owned an annuity, which named her adult, non-dependent
daughter as the beneficiary. Tober claimed it exempt.
The Chapter 7 Trustees in both cases objected to the
claimed exemptions. The Trustees argued that the exemption
did not apply, because the named beneficiaries were not
dependents of the debtors. The bankruptcy court overruled the
Trustees’ objection. On appeal, the BAP filed a single order
for both cases, reversing the bankruptcy court and holding
that the statutes require the named beneficiaries to be depen-
dents for the exemption to apply. In re Hummel, 440 B.R.
814, 820 (B.A.P. 9th Cir. 2010). This appeal followed.
II. STANDARD OF REVIEW
“We review decisions of the BAP de novo and apply the
same standard of review that the BAP applied to the bank-
ruptcy court’s ruling.” Boyajian v. New Falls Corp. (In re
Boyajian), 564 F.3d 1088, 1090 (9th Cir. 2009). The BAP
reviewed de novo the bankruptcy court’s conclusions of law
and questions of statutory interpretation.
IN RE TOBER 9133
III. DISCUSSION
[1] Property of a bankruptcy estate includes “all legal or
equitable interests of the debtor in property as of the com-
mencement of the case.” 11 U.S.C. § 541(a)(1). However, 11
U.S.C. § 522(b) permits a debtor to exempt property from the
estate for which an exemption is available under either state
or federal law. Because Arizona law excludes federal exemp-
tions, Ariz. Rev. Stat. § 33-1133(B), Arizona law alone gov-
erns the question of what exemptions apply. 11 U.S.C.
§ 522(b)(2).
[2] The relevant statutory language of the applicable
exemptions follows:
A. The following property of a debtor is exempt
from execution, attachment or sale on any process
issued from any court:
...
(6) The cash surrender value of life insur-
ance polices where for a continuous unex-
pired period of two years the policies have
been owned by a debtor and have named as
beneficiary the debtor’s surviving spouse,
child, parent, brother or sister, or any other
dependent family member . . . . For the pur-
poses of this paragraph, “dependent” means
a family member who is dependent on the
insured debtor for not less than half sup-
port.
(7) An annuity contract where for a contin-
uous unexpired period of two years that
contract has been owned by a debtor and
has named as beneficiary the debtor, the
debtor’s surviving spouse, child, parent,
9134 IN RE TOBER
brother or sister, or any other dependent
family member . . . . For the purposes of this
paragraph, “dependent” means a family
member who is dependent on the debtor for
not less than half support.
Ariz. Rev. Stat. § 33-1126(A)(6)-(7) (emphasis added). Sub-
paragraph (6) exempts the cash surrender value of life insur-
ance applicable in Hummel’s case. Subparagraph (7) exempts
value of an annuity contract applicable in Tober’s case.
For both exemptions, we must determine whether the word
“other” operates as a word of differentiation, confirming the
Appellant’s argument that an individual can either be
exempted as a listed family member (who need not be depen-
dent) or as any “other” family member who is dependent; or
whether “other” operates as a connecting modifier and refers
to the dependent nature of the residual class of family mem-
bers in connection with the dependent nature of the preceding
listed family members. Supreme Court precedent suggests
that the use of “other” in either way is “just as likely.” See
Jama v. Immigration & Customs Enforcement, 543 U.S. 335,
343 n.3 (2005). No Arizona court has addressed this question.
[3] We conclude that the word “other” in the text of this
statute is a word of differentiation, establishing that a benefi-
ciary can be either a listed beneficiary or some “other” family
member who is dependent. We must interpret Arizona laws in
a way that avoids superfluity. See TRW Inc. v. Andrews, 534
U.S. 19, 31 (2001); In re Marriage of Berger, 680 P.2d 1217,
1228 (Ariz. Ct. App. 1983). If the legislature had wanted only
dependent family members to be exempted, then the legisla-
ture could have exempted “dependent family members,”
rather than list certain close family members and exempt
other dependant family members. The Trustees’ interpretation
renders the enumeration of specific family members irrele-
vant. In contrast, Appellants’ argument makes sense of the list
by distinguishing immediate family members as safe harbors
IN RE TOBER 9135
who need not prove dependency, in contrast to extended fam-
ily members covered by the “other” clause.
The Trustees incorrectly argue that our interpretation of the
statute would render “other” superfluous. The word “other”
emphasizes that the listed individuals and the catch all group
are family members.
The Trustees also point out that “[w]hen several words are
followed by a clause which is applicable as much to the first
and other words as to the last, the natural construction of the
language demands that the clause be read as applicable to all.”
Porto Rico Ry., Light & Power Co. v. Mor, 253 U.S. 345, 348
(1920). But this canon of interpretation does not call for a dif-
ferent conclusion. The entire question of this case is whether
the last clause is as applicable to the first listed words as to
the last. And, indeed, the clause can’t logically apply to the
first item in the series in subparagraph (7)—it would be
absurd to require the “debtor” to be a dependent of himself to
obtain the exemption.
[4] Even if “other” could plausibly be interpreted in both
ways discussed above, the term is ambiguous. “Exemption
statutes in bankruptcy law should be construed liberally in
favor of the debtor.” In re Cataldo, 224 B.R. 426, 429 (B.A.P.
9th Cir. 1998); accord In re Hoffpauir, 125 B.R. 269, 271
(Bankr. D. Ariz. 1990). Where the text of a statutory exemp-
tion is ambiguous as to whether it applies, the debtor is enti-
tled to the exemption. It follows that the Appellants must
prevail.
The Trustees argue that any ambiguity is overcome by the
clear legislative history. We are dubious of the proposition
that legislative history could ever be used to overcome the
presumption in the debtors favor created by ambiguous text.
However, assuming this could occur, we disagree that the leg-
islative history in this case is clear enough to rebut the textual
presumption in favor of the debtor.
9136 IN RE TOBER
The legislative history cited by the Trustees is not necessar-
ily inconsistent with the Appellants’ interpretation, because it
never specifically excludes non-dependent family members
from the exemption. Further, a provision from the Arizona
Senate Fact Sheet directly contradicts the Trustees’ interpre-
tation. It states that the exemption applies “when a family
member or dependent is named beneficiary.” Final Revised
Fact Sheet for S.B. 1060, 40th Leg., 2d Sess., at 2 (Ariz. June
24, 1992) (emphasis added). This language strongly supports
the argument that the legislature anticipated that family mem-
bers did not always also have to be dependents to be
exempted, since the “or” differentiates between family and
dependents.
The Trustees also argue a liberal construction of this statute
is satisfied by the fact that when the debtor qualifies for the
exemption, the debtor is entitled to an unlimited dollar
amount. However, this only speaks to the liberality of the
exemption itself, rather than a liberal rule of statutory con-
struction interpreting the statute in favor of allowing a debtor
to qualify for this exemption.
Because the text of this statute provides at least as much
support for Appellants’ position as the Trustees’ and because
the legislative history does nothing to rebut Appellants’ inter-
pretation, we are required to rule in favor of Appellants.
IV. CONCLUSION
We REVERSE the BAP’s decision and REMAND for fur-
ther proceedings consistent with this opinion.