DEBTOR CASE NO. 95-21476




VS. ADV. NO. 96-2014





This matter is before the Court on the plaintiff=s Motion for Summary Judgment filed herein on September 30, 1996. The plaintiff seeks to have the debt owed to it by the defendant declared nondischargeable pursuant to 11 U.S.C. '523(a)(6). This Court has jurisdiction of this matter pursuant to 28 U.S.C. '1334(b); it is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).

The plaintiff initiated this matter by the filing of its Complaint on April 1, 1996. The defendant filed his Answer on April 9, 1996. The plaintiff filed its Motion for Summary Judgment as set out above. Several responsive pleadings were subsequently filed, following which a hearing was held on December 11, 1996. On January 2, 1997, the Court entered an Order taking the matter under submission.

The record in this case indicates that the defendant filed a Chapter 7 petition in this Court on December 26, 1995. On October 19, 1994, he had been involved in an automobile accident in which he collided with a vehicle driven by Mandi Butler. Her passenger, Lisa Allison, was injured in that accident. At the time of the accident, the plaintiff herein was the insurer of Mandi Butler=s vehicle. The plaintiff was listed on the defendant=s Schedule F--Creditors Holding Unsecured Nonpriority Claims, in regard to the state court proceeding initiated by Lisa Allison before the Kenton Circuit Court, Case No. 95-CI-614.

On February 14, 1996, this Court entered an Order Lifting Automatic Stay allowing the state court proceeding to go forward. The plaintiff then filed its Complaint as set out above. The trial of this matter, originally set for November 4, 1996, was continued by order of this Court entered October 4, 1996, to allow the state court action to go forward. The Court has not been informed, however, that the state court proceeding has concluded.

The plaintiff seeks to have excepted from discharge the personal injury protection benefits it has paid to both Mandi Butler and Lisa Allison, and the property damage benefits paid to its insured, Michael Butler. The plaintiff contends that these debts are nondischargeable pursuant to 11 U.S.C. '523(a)(6) because the defendant=s conduct comes within the purview of that statute=s exception Afor willful and malicious injury by the debtor to another entity or the property of another entity.@

Deposition testimony filed in this case indicates that the automobile accident occurred when the defendant attempted to pass several cars, including the one Mandi Butler was driving, on a rain-slick two-lane road. The defendant was traveling 55 miles per hour in a 45 mile per hour zone, and after passing the first car, his car hydroplaned, spun out of control, and struck the Butler vehicle. The Butler vehicle left the road, struck a brick wall, and went over an embankment. After police arrived at the accident scene, the defendant was charged with reckless driving, wanton endangerment, possession of marijuana and failure to have insurance. He later pleaded guilty to reckless driving and to possession of marijuana.

The plaintiff contends that the deposition testimony given in the state court action establishes by a preponderance of the evidence that the defendant=s conduct on the date of the accident was willful and malicious as a matter of law. This concept has been defined in the Sixth Circuit by the two leading cases on the subject, Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986), and Perkins v. Scharffe, 817 F.2d 392, 394 (6th Cir. 1987). Wheeler defines Awillful@ as Adeliberate or intentional,@ and Amalicious@ as being Ain conscious disregard of one=s duties or without just cause or excuse; it does not require specific intent to do harm.@ The Perkins court agreed with In re Franklin, 615 F.2d 909 (10th Cir. 1980) in holding that the in the bankruptcy context, Awillful@ and Amalicious@ require Athe intentional doing of an act that necessarily leads to injury.@

The plaintiff cites one of the more recent cases to build on the foundation established by Wheeler and Scharffe, In re Adams, 147 B.R. 407 (Bkrtcy.W.D.Mich. 1992). That case also dealt with an automobile accident, and the court there analyzed the issue as follows:

Therefore, for an injury to be >willful= it must be the result of an intentional or deliberate act. Because the legislative history seeks to reject an application of a reckless disregard standard under the >willful= prong, and because >willful= is not a Code defined word with a >plain meaning=, negligent, grossly negligent and reckless acts are not nondischargeable pursuant to '523(a)(6). ....

At page 412. The court goes on to say that the Awillful@ prong of '523(a)(6) is satisfied if Aby the nature of his or her act, the debtor knew, or should have known, the resulting harm was substantially certain to occur, ...@ Id., at pp. 414-415.

The court further agreed with the Wheeler court=s definition of malice.

This Court must therefore discern whether the actions of the defendant here rise to the level of Awillful and malicious@ as set out in the cases cited above. In this case the defendant attempted to pass on a wet road and in doing so hydroplaned and hit another vehicle. The plaintiff makes much of the defendant=s alleged knowledge that his own vehicle did not Ahold the road well@ when it was wet. Other than that, there is nothing in the facts as stated to indicate that he knew or should have known that harm was substantially certain to occur by reason of his attempting to pass. Certainly the fact that he was going ten miles over the speed limit cannot be dispositive, as it is usually necessary to accelerate in order to pass. Further, there is nothing to indicate that the defendant acted in Aconscious disregard@ of his duty to the driver of the vehicle he struck Awithout just cause or excuse.@

These conclusions are supported by comparing the fact pattern in the within matter with those in In re Adams, supra, and In re Greve, 97 B.R. 383 (Bkrtcy.S.D.Ohio 1989). In Adams the debtor accelerated through a red light at a busy intersection. In Greve the debtor dragged a pedestrian down the road as he was hanging on to her car. Both of these actions are inherently dangerous, and by their very nature are substantially certain to cause harm. By contrast, most people old enough to drive have attempted to pass other vehicles on wet highways. While it is an action that must be performed with care, it is not one which will necessarily cause harm. While the defendant=s conduct may have been reckless, the plaintiff has not demonstrated that it was Awillful and malicious@ as a matter of law.

The Court having determined that the plaintiff has failed to carry forward its burden of demonstrating that it is entitled to judgment as a matter of law, its Motion for Summary Judgment should be overruled. An order in conformity with this opinion will be entered separately.


By the Court -





Copies to:


Robert C. Hoffman, Esq.

Candace J. Smith, Esq.