Summary
holding debt for legal fees dischargeable where plaintiff law firm had not demonstrated intent not to pay
Summary of this case from In re HighfillOpinion
Bankruptcy No. 91-12333-MWV. Adv. No. 91-1198-MWV.
November 20, 1995.
James F. Raymond, Kimberly Kirkland, Upton, Sanders Smith, Concord, NH, for Plaintiff Daniel E. Schachter.
Dennis Bezanson, Chapter 7 Trustee, Portsmouth, NH.
Gerri Karonis, Manchester, NH, for United States Trustee.
MEMORANDUM OPINION
The Court has before it the complaint of Daniel E. Schachter ("Plaintiff") against the debtor, David G. Fall ("Defendant"), seeking a determination that a debt owed from the Defendant to the Plaintiff be excepted from discharge under sections 523(a)(6) and (9) of the Bankruptcy Code. For the reasons set out below, the Court finds that the debt is not excepted from discharge pursuant to sections 523(a)(6) or 523(a)(9) of the Bankruptcy Code.
This Court has jurisdiction of the subject matter and the parties pursuant to 28 U.S.C. § 1334 and 157(a) and the "Standing Order of Referral of Title 11 Proceedings to the United States Bankruptcy Court for the District of New Hampshire," dated January 18, 1994 (DiClerico, C.J.). This is a core proceeding in accordance with 28 U.S.C. § 157(b).
PROCEDURAL HISTORY
This case commenced in the United States District Court for the District of New Hampshire on June 12, 1991 (Civil Action No. 91-262-D), seeking damages for personal injury as a result of a boating accident on Lake Winnipesaukee on May 26, 1991. On July 31, 1991, the Defendant filed an original petition under Chapter 7 of the Bankruptcy Code and, upon said filing, the district court action was stayed.
On November 22, 1991, the instant complaint was filed in the Bankruptcy Court for the District of New Hampshire. The Defendant, who was then represented by counsel, filed his answer on December 31, 1991. A pretrial was held on January 16, 1992, at which hearing it was determined that a criminal case was pending against the Defendant alleging that he had operated his boat while under the influence at the time of the boating accident. The matter was continued pending a determination of this criminal matter. On July 23, 1992, this Court granted a motion of Defendant's counsel to withdraw, and the Defendant has been pro se since that date.
On March 7, 1994, over two years after the original pretrial, the Laconia District Court found the Defendant not guilty of operating a boat under the influence. Based on that finding, the Defendant moved to have the within complaint dismissed to which the Plaintiff filed an objection. A memorandum opinion and order was issued by this Court on November 3, 1994, denying Defendant's motion.
On December 22, 1994, the Plaintiff filed a motion advising the Court that he had discovered that the Defendant pled guilty to second degree assault in the Belknap County Superior Court in connection with the boating accident which is the subject of this complaint. On January 6, 1995, the Plaintiff filed his motion for summary judgment based on the Belknap County Superior Court action, which this Court denied by memorandum opinion and order issued on February 23, 1995. On March 3, 1995, the matter was tried before this Court at which time the Court took the matter under advisement.
APPLICABLE LAW
The complaint seeks a determination that the damages resulting from the boating accident are excepted from discharge under sections 523(a)(6) and (9) of the Bankruptcy Code. Those sections provide that:
A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt —
. . . .
(6) for willful and malicious injury by the debtor to another entity or to the property of another entity;
. . . .
(9) for death or personal injury caused by the debtor's operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance.
11 U.S.C.A. §§ 523(a)(6) and (9) (West 1993 Supp. 1995). Because section 157(b)(5) of Title 28 provides that personal injury tort claims shall be tried in the United States District Court and not in the bankruptcy court, the only issue before this Court is whether the debt should be excepted from discharge. Therefore, this Court considered only the discharge issue and no evidence was taken with respect to damages for personal injury.
FACTS
On the night of May 26, 1991, at approximately 11:00 p.m., the Plaintiff was en route by boat from the public docks at Meredith, New Hampshire, on Lake Winnipesaukee to Wye Landing. The night was stormy and the Plaintiff testified that he was proceeding on Meredith Bay at a speed that would just keep his boat on a plane or level so that he could see. The boat was covered except for the center flap through which the Plaintiff stood along with his passenger, Dr. Neil Sandson, in order to be able to see in the dark and the rain. At some point while en route, the Plaintiff and the Defendant were involved in a boating accident. The Plaintiff testified that he has no memory of the accident. Dr. Sandson, the passenger, testified that at some point they became aware of a boat approaching off their starboard bow at close range and attempted to avoid a collision by turning to port, but the collision ensued.
Michael Plunkett, who was then employed as a district supervisor in the Marine Patrol Bureau of the New Hampshire Department of Safety, was in charge of reconstructing the accident. He testified that the Defendant's boat hit the Plaintiff's boat on the starboard side, just below the driver's seat, proceeded over the area where the driver was located and actually became airborne before exiting the port side of the Plaintiff's boat. To positively identify the Defendant's boat as being in the accident, Plunkett testified that materials found on the Defendant's boat were positively identified as being from the Plaintiff's boat.
Dr. Sandson testified that shortly after the accident, after regaining his bearings, finding the injured Plaintiff and tending to him, he then commenced calling for help. The Defendant, after the collision, did not remain at the accident scene, did not attempt to determine the extent of the damage to the Plaintiff's boat or the extent of injury to its passengers and gave no assistance at all to the passengers on the boat with which his boat had just collided. As luck would have it, the Defendant's boat was shortly thereafter stopped by a marine patrol officer who noticed that it was proceeding without a bow light, which was evidently destroyed in the collision. Upon stopping the Defendant's boat, the marine patrol officer testified that he noticed damage to the Defendant's boat and detected a strong smell of alcohol. Officer Dunleavy of the marine patrol, the officer who had stopped the Defendant's boat, testified that when he asked the Defendant if he had been in an accident, he replied that he had been in an accident earlier by Weirs Beach. When further asked if he reported the accident, the Defendant responded that he was on his way to the Meredith Town Dock to report it to his insurance company, although at the time he was stopped, he was headed in the opposite direction. When the Defendant was asked if he had exchanged any information with the driver of the other boat, Officer Dunleavy testified that the Defendant replied, "No, the guy didn't stick around long enough. I've been driving a boat since I was thirteen and I've never seen anything like it. It's unreal." (Transcript at 40-41.) The Defendant was eventually given a field sobriety test and arrested. The Defendant's boat, with three passengers, was towed to the marine patrol headquarters in Gilford.
About the same time as this stop was made, the cries of Dr. Sandson had been heard by individuals on the shore and the accident had been reported to the marine patrol and to other rescue units. The Plaintiff and Dr. Sandson were transported to the Laconia Hospital and the Plaintiff was shortly thereafter transferred to the Concord Hospital. Through the efforts of the marine patrol and local fire departments, the Plaintiff's boat and debris from the wreckage were preserved, towed to shore and eventually transported to marine patrol headquarters by truck, further enabling the reconstruction of the accident. It is undisputed that the accident caused personal injury to the Plaintiff and injury to his property, the boat.
The Defendant was subsequently found innocent of boating while intoxicated by the Laconia District Court. However, a guilty finding was entered by the Belknap County Superior Court for the offense of second degree assault, a Class B felony, on April 20, 1992.
The Defendant entered a nolo plea upon which the court took the guilty finding. Since this Court is not basing its decision on that finding, this fact is not important to this decision.
At trial, the Court gave the Defendant, who appeared pro se, the opportunity to testify on his own behalf and be subject to cross-examination, an invitation which the Defendant declined to accept.
DISCUSSION
In Langlois v. Mirulla (In re Mirulla), 163 B.R. 912 (Bankr.D.N.H. 1994), this Court adopted the following standard:
[T]o establish a ground for nondischargeability of a debt under section 523(a)(6) of the Bankruptcy Code it must be proven that the debtor engaged in deliberate acts which he knew were certain or substantially certain to result in injury to property. If this is established the debt will remain nondischargeable even though the resulting harm was not the primary purpose of the intentional acts.
Id. at 915. Following that standard, in order for this Court to find the Defendant's debt to the Plaintiff is excepted from discharge, the Court would have to find that the Defendant did certain acts which he knew were certain or substantially certain to cause injury to the Plaintiff. The record before the Court cannot sustain such a finding. While the actions of the Defendant after the collision may have been reprehensible, the injury to both the Plaintiff and his property were caused by the accident and not by the Defendant's post-accident behavior.
The evidence in the record of the pre-accident events indicates that the night of the accident, May 26, 1991, was dark and rainy. The visibility was poor and the Plaintiff was driving his boat while standing with the center flap of the boat cover open. The Defendant's accident report also indicates he was proceeding with his head through the canvas in order to see. Dr. Sandson testified that he first noticed the Defendant's boat off the starboard bow at a bearing of approximately one o'clock. Both boats were proceeding at a speed fast enough to plane, although there is no definite evidence as to how fast each boat was going. In an attempt to avoid a collision, the Plaintiff's boat turned to port, which is consistent with the physical evidence of the crash. There is further evidence that the Defendant had been drinking, but there is no evidence of when or how much. Based on this set of facts, the Court can come to no other conclusion than that the collision which caused the injury was an accident, probably the result of all of the above factors but not the result of a deliberate act or acts by the Defendant which he knew were certain or substantially certain to cause injury to the Plaintiff. As to the post-collision actions of the Defendant in not assisting the Plaintiff and his passenger and leaving the scene of the collision, they were deliberate and wrongful acts, but there is no evidence that they resulted in personal injury to the Plaintiff or his property. The injury occurred at the time of the collision and not thereafter.
Pertinent provisions of N.H. RSA § 270-D:2, General Rules for Vessels Operating on Water, which apply to Lake Winnipesaukee are as follows:
II. (a) It shall be the duty of each vessel to keep to the right when vessels are approaching each other head on.
(b) When the courses of vessels are so far to the starboard of each other as not to be considered as approaching head on, they shall keep to the left.
III. When the vessels are crossing courses or approaching each other in an oblique direction which may involve risk of collision, the vessel which has the other on its starboard side shall keep out of the way of the other, allowing the latter vessel to keep its course and speed.
. . . .
V. If, when vessels are approaching each other, either vessel fails to understand the course or intention of the other from any cause, such vessel or vessels shall immediately slow to a speed barely sufficient for steerage until the vessels have safely passed each other. If it appears the danger of collision is imminent both vessels shall stop or reverse and not proceed until such danger has been averted.
N.H.Rev.Stat.Ann. § 270-D:2 (Supp. 1994).
Based on the above, the Court finds that the Defendant's debt to the Plaintiff is not excepted from discharge under section 523(a)(6).
In order to except the Defendant's debt to the Plaintiff from discharge under section 523(a)(9), this Court must find that the Plaintiff's personal injury was caused by the Defendant's unlawful operation of a motor vehicle because the Defendant was intoxicated from using alcohol, a drug or other substance. There is no evidence of a drug or another substance in the record. The Court previously denied the Defendant's motion for summary judgment on this count on the grounds that the standard of evidence in this Court on the issue is the preponderance of the evidence standard, while in the criminal proceeding the standard was beyond a reasonable doubt, which is a higher standard. However, before the Court addresses the issue of intoxication, it must first decide whether a "boat" is a "motor vehicle" for purposes of section 523(a)(9).
The Plaintiff, in a memorandum of law filed with this Court in a footnote cites the case of Williams v. Radivoj, 111 B.R. 361 (S.D.Fla. 1989), for the proposition that a boat is a motor vehicle for the purpose of section 523(a)(9) of the Bankruptcy Code. There is no question that Williams stands for that proposition. However, this Court disagrees with that holding and finds the better-reasoned decision to be Willison v. Race (In re Race), 159 B.R. 857 (Bankr.W.D.Mo. 1993). That court, based on the principles that the exception to discharge found in section 523 must be narrowly construed against an objecting creditor and liberally in favor of the debtor, and an analysis of the plain meaning of the statute is to be used in construing the Bankruptcy Code, found that a boat is not a motor vehicle for purposes of section 523(a)(9).
While not reproducing large portions of that decision, this Court adopts the reasoning found in pages 859 through 861 of that decision as it applies to federal bankruptcy law. In the list of examples found in those pages — definitions of the term motor vehicle enacted by Congress — this Court would add section 4 of chapter 1 of Title 1. This section defines vehicle as "every description of carriage or other artificial contrivance used, or capable of being used, as a means of transportation on land." 1 U.S.C.A. § 4 (West 1985).
A copy of Willison v. Race is attached as Appendix A.
The result is the same under New Hampshire law. New Hampshire RSA 259:60 defines "motor vehicle" as follows:
I. Except where otherwise specified in this title, any self-propelled vehicle not operated exclusively on stationary tracks, including ski area vehicles;
II. As used in RSA 261:148 relative to municipal permits for registration, includes all trailers and semi-trailers as defined herein and travel trailers as determined by the commissioner of revenue administration; however, snow traveling vehicles as defined herein, mobile homes, house trailers and mopeds shall not be so included;
III. For purposes of the financial responsibility statutes, any self-propelled vehicle not operated exclusively upon stationary tracks, except farm tractors, crawler-type tractors, and mopeds;
IV. For purposes of the road toll statutes, all vehicles, engines, machines or mechanical contrivances which are propelled on the public highways by internal combustion engines, electric motors, steam engines, or other alternate sources of energy except human or animal power.
N.H. RSA § 259:60 (1993). New Hampshire RSA 259:122(I) then defines "vehicle" as "every mechanical device in, upon or by which any person or property is or may be transported or drawn upon a way, excepting devices used exclusively upon stationary rails or tracks." These two provisions make it absolutely clear that the term "motor vehicle" pertains to a means of transportation on land, not water.
In contrast to the above, New Hampshire RSA 270-D:1 contains the following definitions:
I. "Boat" means every description of watercraft other than seaplanes, capable of being used or used as a means of transportation on the water and which is primarily used for noncommercial purposes, or leased, rented, loaned or chartered to another for such use.
. . . .
VII. "Motorboat" means any vessel being propelled by machinery, whether or not such machinery is the principal source of propulsion.
. . . .
XI. "Vessel" means any type of watercraft used or capable of being used as a means of transportation on water, except a seaplane.
Id. § 270-D:1 (Supp. 1994). The applicable criminal statute in effect at the time of the accident in 1991 then stated that "[a] person is guilty of a misdemeanor if he operates or attempts to operate a boat while under the influence of intoxicating liquor or a controlled drug. `Boat' means and includes every type of watercraft used or capable of being used as a means of transportation on the water." Id. § 631:5 (1986) (repealed and replaced by RSA § 270:48-a effective January 1, 1993).
The current statute contains similar definitions. Under the current criminal statute, "`[b]oat' means and includes every type of watercraft used or capable of being used as a means of transportation on the water." Id. § 270:48 (1987). Section 270:48-a of the statute then provides that "[n]o person shall operate or attempt to operate a boat while under the influence of intoxicating liquor or a controlled drug or any combination of intoxicating liquor and a controlled drug." Id. § 270:48-a(I) (Supp. 1994). In recent years, the United States Supreme Court has continually held that the statute must first be construed according to its plain meaning. This Court believes that the meaning of "motor vehicle" is clear under both federal and state law and does not include a "boat." Since the court has found that the Debtor was not operating a motor vehicle, it does not reach the issue of intoxication. The complaint to except the Defendant's obligation from discharge pursuant to section 523(a)(9) must be denied.
For all of the foregoing reasons, this Court finds in favor of the Defendant, David Fall. This opinion constitutes the Court's findings of facts and conclusions of law in accordance with Federal Rule of Bankruptcy Procedure 7052. The Court will issue a final judgment consistent with this opinion.