Opinion
Bankruptcy Case No. 00-91912; Adversary Case No. 00-9075
April 24, 2001
Robert P. Follmer, Attorney at Law, Pontiac, Ill.
Brian M. Gabor, Attorney at Law, Peoria, Ill.
OPINION
This matter having come before the Court for trial on a Complaint to Determine Dischargeability of a Debt; the Court, having heard sworn testimony and arguments of counsel and being otherwise fully advised in the premises, makes the following findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
Findings of Fact
The Debtors/Defendants filed for relief under Chapter 7 of the Bankruptcy Code on August 22, 2000. On Schedule F of the Debtors' bankruptcy petition, Debtors listed William F. McKee as an unsecured creditor in the approximate amount of $5,000, for a claim for personal injuries allegedly caused by "the negligence of Jon McLemore in August 1997."
The instant adversary proceeding was filed by the Plaintiff, on October 13, 2000, requesting that the debt, arising from an incident which occurred on August 20, 1997, in which the Plaintiff was injured, be declared non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523 (a)(6); and that this Court lift the automatic stay so as to allow the Plaintiff to pursue a civil cause of action which is currently pending in the Eleventh Judicial Circuit, Livingston County, Illinois, in which the Plaintiff seeks damages for physical injuries resulting from a battery committed upon his person by Defendant, Jon McLemore.
It is undisputed that, on August 20, 1997, the Plaintiff came to be at the Defendants' place of business in Pontiac, Illinois, for the purpose of retrieving a vehicle on which the Defendant, Jon McLemore, had prepared a repair estimate. It is also undisputed that, in the process of preparing to leave in the vehicle located on the Defendants' premises, the Defendant, Jon McLemore, pulled the Plaintiff from the vehicle and prohibited the Plaintiff from leaving with the vehicle. It is at this point that the account of the incident given by the Plaintiff varies considerably from the account of the incident as testified to by both Defendants. Having had the opportunity to review the testimony of the parties and considering their demeanor, their appearance, and how their testimony related to the undisputed facts, and having reviewed the documents admitted into evidence, the Court concludes that the Plaintiff was a credible witness and that the Defendants were not credible.
The Court finds that the Plaintiff has proven by a preponderance of the evidence that, on August 20, 1997, he was employed for Lanter Corp. out of Bloomington, Illinois. In the course of his duties for Lanter Corp., he went to the Defendants' place of business, an automobile repair garage, to retrieve a delivery van on which the Defendant, Jon McLemore, had prepared a repair estimate. It is evident that the Plaintiff's employer felt that the repair estimate was too high, and the Plaintiff had been instructed to pick up the van while leaving another van upon which Plaintiff's employer had agreed to allow the Defendant, Jon McLemore, to replace an alternator. The Plaintiff was successful in obtaining the keys to the van which he sought to retrieve from Robin McLemore. As he went to get into the van, Jon McLemore appeared from the garage and began cussing at the Plaintiff. Jon McLemore admitted, and Robin McLemore testified, that at the very least Jon McLemore did say to the Plaintiff that, "You're not taking the f___ing van." The evidence indicates that, despite the harassment from Jon McLemore, the Plaintiff got into the van and prepared to start it to leave. With the driver's side door to the van open, Jon McLemore reached in and grabbed the Plaintiff by his left arm just above the elbow and yanked him from the van, causing him to fly through the air and striking a pick-up truck parked next to the van. Plaintiff testified that his back hit the side of the truck, and, the next thing he knew, he was down on the ground on one knee. Fearing a further altercation, the Plaintiff asked the Defendants to direct him to the nearest police station, and the Defendant, Jon McLemore, pointed up the street in the direction of the local police department. The Plaintiff left the Defendants' place of business on foot, going immediately to the police department and reporting the incident. The Defendant, Jon McLemore, was arrested the same day and charged with battery, pursuant to 720 ILCS 5/12-3(a)(2).
On October 2, 1998, Defendant, Jon McLemore, was found guilty of battery in a bench trial conducted in the Eleventh Judicial Circuit Court, Livingston County, Illinois, in Case No. 97-CM-544. The State Court record indicates that the Defendant, Jon McLemore, was fined and placed on Court supervision as a result of the battery committed on the Plaintiff, William F. McKee, on August 20, 1997.
The Plaintiff testified that, as a result of the incident on August 20, 1997, he immediately noticed that his left arm was bruised around and above the elbow, and that he began experiencing pain in his left shoulder and lower back and in the knee which he landed on following the altercation with the Defendant, Jon McLemore. The evidence indicates that, shortly after the incident in question, the Plaintiff sought medical attention for his injuries, and was treated by doctors at Christie Clinic, in Champaign, Illinois, over the course of approximately one year.
Following the battery conviction of Jon McLemore, in the State Court criminal proceeding, the Plaintiff filed a civil action in the Eleventh Judicial Circuit Court, Livingston County, Illinois, seeking damages from the Debtors/Defendants resulting from his pain and suffering and the medical bills which he incurred as a result of the injuries suffered on August 20, 1997. The Debtors/Defendants' filing of the instant Chapter 7 bankruptcy proceeding resulted in a stay of the State Court civil litigation, prompting the Plaintiff to file the instant adversary proceeding on October 13, 2000, requesting that any sum for damages found to be due as a result of the August 20, 1997, incident in the State Court civil litigation be found to be non-dischargeable pursuant to 11 U.S.C. § 523(a)(6).
Conclusions of Law
Pursuant to 11 U.S.C. § 523(a)(6), a debtor will be denied a discharge as to debts which arise from willful and malicious injury caused by the debtor to another entity or to the property of another entity. The Plaintiff must prove, by a preponderance of the evidence, that there was a willful and malicious act on the part of the debtor/defendant done without just cause or excuse which leads to harm to another entity or property of another entity. Grogan v. Garner, 111 S.Ct. 654 (1991); In re Hallahan, 78 B.R. 547 (Bankr.C.D.Ill. 1987). While there is no universally accepted definition of the terms "willful and malicious," the majority of Courts have concluded that willful and malicious conduct is a deliberate or intentional act of a debtor having knowledge that the act could harm another. In re Roemer, 76 B.R. 126 (Bankr.S.D.Ill. 1997); In re Hallahan, supra, at 550; In re Nelson, 35 B.R. 766 (Bankr.N.D.Ill. 1983). The term "malicious" has been defined as a wrongful act done consciously and knowingly in the absence of just cause or excuse. In re Bossard, 74 B.R. 730 (Bankr.N.D.N.Y. 1987); In re Condict, 71 B.R. 485 (Bankr.N.D.Ill. 1987). The Supreme Court has addressed the issue of what debts should be held non-dischargeable under 11 U.S.C. § 523(a)(6), in the case of Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974 (1998). In Geiger, the Supreme Court held that "intentional" torts, as distinguished from negligent or reckless torts, generally require that the actor intended the consequences of the act, not simply the act itself. The Supreme Court further held that debts arising from recklessly or negligently inflicted injuries do not fall within the willful and malicious injury exception to discharge under 11 U.S.C. § 523(a)(6).
Following the Supreme Court's decision in Geiger, there has been confusion on the standard to be applied in order to determine whether a debt is non-dischargeable as a result of a willful and malicious injury under 11 U.S.C. § 523(a)(6). The Courts have remained divided roughly into two camps, much as before the ruling in Geiger. Some have required "special malice," which requires a showing of a motive to harm, and others have required merely "implied malice." Compare, e.g.: American Savings Loan Asso. v. Weber, 99 B.R. 1001 (Bankr.D.Utah 1989) (requiring special malice) and Grand Piano Furniture Co. v. Hodges, 4 B.R. 513 (Bankr.W.D.Va. 1980) (same); with United Bank v. Nelson, 35 B.R. 766, at 774 (Bankr.N.D.Ill. 1983) (requiring implied malice). The Supreme Court, in Geiger, did address the split of opinion in the Circuit Courts as to the requisite mental state needed to state a willful act under § 523(a)(6). The Supreme Court stated, "[t]he word `willful' in (a)(6) modifies the word `injury,' indicating that non-dischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." However, the Supreme Court's holding in Geiger did not make precisely clear exactly what level of intent to injure is required. Concerning this question, the Court finds that the Fifth Circuit very carefully analyzed the issue in the case of In re Miller, 156 F.3d 598 (5th Cir. 1998), and concluded that an injury is "willful and malicious" where there is either an objective substantial certainty of harm or a subjective motive to cause harm. The Fifth Circuit found that Geiger did not foreclose such an approach, but rather encouraged it. The issue was also addressed by the Bankruptcy Court in the Northern District of Ohio in In re Chapman, 228 B.R. 899 (Bankr.N.D.Ohio 1998), wherein that Court found that a person will be deemed to have acted willfully for the purposes of denying that person's discharge in bankruptcy under § 523(a)(6), when that person acts with the intent to cause injury or is substantially certain that an injury will occur. In support of this finding, the Court, in Chapman, noted that the Supreme Court in Geiger had cited with approval the Restatement (Second) of Torts, § 8(a), and that the Supreme Court had stated in dicta that, "§ 523(a)(6)'s formulation triggers in the lawyer's mind the category `intentional torts' . . ." This Court accepts the view of the Fifth Circuit in Miller, in concluding that a person will be deemed to have acted willfully and maliciously where there is either an objective substantial certainty of harm or a subjective motive to cause harm.
In examining the facts of the case at bar, having established the requisite intent to deny Debtors/Defendants' discharge under § 523(a)(6), the Court concludes that, based upon the actions of Debtor/Defendant, Jon McLemore, on August 20, 1997, as against the Plaintiff, there has been shown a subjective intent to cause injury, and, at the very least, there has been a showing of an objective substantial certainty of harm. Given the manner in which the Plaintiff was grabbed and thrown from his vehicle, it is clear that the Debtor/Defendant, Jon McLemore, must have intended some harm to the Plaintiff, or, at the very least, he should well have known that such an action could easily cause injury to the Plaintiff. As stated above, Debtor/Defendant, Jon McLemore, was found guilty of criminal battery in the State Court, and there is no question that his conduct on August 20, 1997, falls within the definition of an intentional tort. Any injury arising from such an intentional action and the resulting damages should not constitute dischargeable debt in bankruptcy.
In conclusion, the Court finds that any debt arising from the actions of Debtor/Defendant, Jon McLemore, on August 20, 1997, as against the Plaintiff, is non-dischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(6). Based upon the representations of the parties, the Court finds that the parties should proceed to litigate the issue of damages in the State Court civil litigation in the Eleventh Judicial Circuit Court, Livingston County, Illinois, and that any judgment obtained by the Plaintiff as against the Debtors/Defendants in that proceeding will be deemed to be non-dischargeable in the Debtors/Defendants' bankruptcy proceeding.
ORDER
For the reasons set forth in an Opinion entered on the ___ day of April 2001; IT IS HEREBY ORDERED that:
A. The Complaint to Determine Dischargeability of a Debt filed by Plaintiff, William F. McKee, on October 13, 2000, is ALLOWED;
B. The parties are directed to litigate the issue of damages in the civil action presently pending in the Eleventh Judicial Circuit Court, Livingston County, Illinois; and,
C. Any judgment resulting from the civil action in the Eleventh Judicial Circuit Court, Livingston County, Illinois, in favor of Plaintiff and against Debtors/Defendants shall be non-dischargeable in Debtors/Defendants' bankruptcy proceeding pursuant to 11 U.S.C. § 523(a)(6).