JAMESTOWN, Rhode Island (8 May 2006) -- Despite filing for bankruptcy last fall, David Swain will have to pay the $4.8 million in damages and interest from a civil jury's February verdict that the Jamestown scuba shop owner killed his wife during a 1999 scuba vacation. U.S. Bankruptcy Judge Arthur N. Votolato Jr. on Thursday exempted the wrongful-death award granted to Shelley Tyre's parents, Richard and Lisa Tyre, from a list of debts excused by Swain's bankruptcy filing. Votolato cited a provision in bankruptcy law that says debtors who commit "willful and malicious injury" to another person or their property remain responsible for any related debts. Following a nine-day trial, the jury in Swain's wrongful-death case deliberated less than three hours before deciding that he intentionally drowned Shelley Tyre, 46, with malice aforethought during a vacation to Tortola in March 1999. Swain insists he is innocent and has called his wife's death an accident. He has never been charged criminally. The Tyres' lawyer, J. Renn Olenn, told the jury that Swain attacked his wife of 5 1/2 years within eight minutes of their descent toward two wrecks in 80 feet of water. Olenn presented expert witnesses, including the chief medical examiner for Miami-Dade County, who theorized that Swain attacked Tyre from behind and turned off her air supply. In the struggle, Olenn's experts said, Tyre's mask strap broke, the mouthpiece of her snorkel was ripped off and one of her fins was embedded in the sand. Her equipment was found and used as evidence at trial. Olenn said Swain killed Tyre, an experienced diver, for money at a time he was pursuing another woman. A prenuptial agreement would have left Swain with nothing had they divorced, and as it was, Olenn contended, it was Shelley Tyre's money that was keeping Swain's dive shop, Ocean State Scuba, financially afloat. The jury's decision that Swain intentionally killed with malice aforethought was ample evidence for the Tyres to persuade Votolato to exclude the awarded damages from Swain's list of discharged debts, Olenn said yesterday. "What this means is wherever he goes, we can attach his pay," said Olenn. "If he leaves the country and opens up another dive shop somewhere, or if he tries to sell his story, we can get the profit." Swain said yesterday he hadn't seen the decision but was not surprised by it. "I think it's pretty much standard in the civil judgment world." He called the decision premature, noting he has asked the state Supreme Court for a new trial. | | A judge has exempted the wrongful-death award granted to Shelley Tyre's parents from a list of debts excused by the bankruptcy filing. Tortola officials listed Shelley Tyre's death as an accident at the time, "unless proven otherwise." In light of the civil jury's decision, law-enforcement officials in the British Virgin Islands, of which Tortola is a part, have in recent weeks said they are taking a "fresh look" at her death. They have contacted Olenn requesting he send them transcripts and exhibits from the trial. Shelly Tyre's parents first brought suit against their onetime son-in-law in 2002 under the "slayer" statute in state law, which disqualifies someone from sharing in another's estate if found guilty. The suit bogged down in the courts for three years after one of Swain's lawyers was diagnosed with cancer. Last fall as Superior Court Judge Patricia Hurst was setting the case for trial, Swain filed for bankruptcy. The bankruptcy filing further delayed the trial because such filings halt other civil judicial proceedings. Olenn appealed to Votolato and, in a hearing before the judge, noted that Hurst had encouraged Swain to seek other counsel since 2003. Olenn also noted that the Tyres, semiretired educators, were in their late 70s and said making them wait much longer for the trial was unfair. Votolato agreed to lift the stay and the civil case proceeded. At the time he filed for bankruptcy, last October, Swain listed assets totaling $656,010. All but $6,010 were in the real-estate value of his Ocean State Scuba shop at 79 North Main Rd., Jamestown. Swain's debts totaled $621,412.28, leaving him $34,597.72. Days after the jury's verdict, the Professional Association of Diving Instructors revoked Swain's membership, leaving it up to other licensed workers in his Jamestown dive shop to conduct scuba training. SOURCE - The Providence Journal |
