IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30554
Summary Calendar
In the Matter of:
JOHN DAVID WESTMORELAND,
Debtor.
GENE KOURY AUTO SALES, doing business as
West Central Auto Credit,
Appellant,
versus
JOHN DAVID WESTMORELAND,
Appellee.
___________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana, Lake Charles Division
(No. 01-CV-341)
___________________________________________________
January 30, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Gene Koury Auto Sales (“Koury”) seeks to prevent the discharge
in bankruptcy of John David Westmoreland’s car-loan debt. Koury
contends that when Westmoreland, lacking insurance, drove and
negligently wrecked the car in which Koury had a security interest,
Westmoreland acted willfully and maliciously, thereby making the
debt nondischargeable under 11 U.S.C. § 523(a)(3). The bankruptcy
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
court held the debt to be dischargeable, and the district court
agreed. We do too.
I.
FACTS AND PROCEEDINGS
The debt at issue is $2,548.09 in dealer financing for the
1986 Isuzu pickup truck that Westmoreland bought from Koury in
September 1995 —— financing that Koury secured by perfecting an
interest in the pickup. The sale contract required Westmoreland to
insure the pickup, which he testified that he did for the first few
months of his ownership. Thereafter, however, Westmoreland allowed
his insurance to lapse, so that the pickup was uninsured on the day
when, driving in Louisiana, from Lake Charles to Leesville,
Westmoreland entered a construction zone, drove partway off the
shoulderless road, went over a six-inch drop-off, and, in trying to
return to the road, lost control of the pickup. It shot across the
center line, struck an oncoming car, and burned.
After this accident, Westmoreland ceased making payments on
the loan. Koury sued in state court, obtained a money judgment,
and secured an order garnishing Westmoreland’s wages. This order,
and other sequellae of the accident, prompted Westmoreland to file
for bankruptcy.
The bankruptcy court held that Westmoreland’s debt to Koury
was dischargeable. Koury appealed that decision to the district
court, which affirmed. This appeal followed.
2
II.
ANALYSIS
We apply the same standard of review as the district court
did, reviewing the bankruptcy court’s factual findings for clear
error and its legal conclusions and mixed determinations of law and
fact de novo.1 The essential facts of the case are undisputed.
The only issue is whether the debt was legally dischargeable.
Section 523(a)(6) provides that an individual debtor is not
discharged from any debt “for willful and malicious injury by the
debtor to another entity or the property of another entity.”
Conceding that Westmoreland’s accident was neither willful nor
malicious, Koury contends that for Westmoreland to drive without
insurance was both. In its brief to this court, Koury states that:
[T]he pertinent and critical issues are whether the
Debtor’s wilful [sic] and intentional act of failing to
maintain insurance coverage; wilfully [sic] and
intentionally driving the vehicle without insurance
coverage; wilfully [sic] and intentionally breaching his
contract with Appellant; and willfully and intentionally
violating state law.
Affirmative answers to these questions might foreclose discharge if
the legal standard were what Koury’s brief in part describes it to
be —— that the debt is nondischargeable if it results from an
injury done either “without just cause or excuse” or “in knowing
disregard of the rights of another.”
1
AT&T Universal Card Services v. Mercer (In re Mercer), 246
F.3d 391, 402 (5th Cir. 2001) (en banc).
3
The current standard is different, however. As the Supreme
Court unanimously determined in Kawaauhau v. Geiger,2
The word “willful” in [§ 523](a)(6) modifies the word
“injury,” indicating that nondischargeability takes a
deliberate or intentional injury, not merely a deliberate
or intentional act that leads to injury.3
This means, the Court observed, that the category of injuries that
§ 523(a)(6) describes is somewhat analogous to “intentional torts,
as distinguished from negligent or reckless torts.”4 The
distinction is that an intentional tortfeasor intends the
“consequences of an act, not simply the act itself.”5 A broader
interpretation of the exception to discharge, the Court warned,
could place within the excepted category a wide range of
situations in which an act is intentional, but injury is
unintended, i.e., neither desired nor in fact anticipated
by the debtor. Every traffic accident stemming from an
intentional act——for example, intentionally rotating the
wheel of an automobile to make a left-hand turn without
first checking oncoming traffic——could fit the
description. A knowing breach of contract could also
qualify . . . . A construction so broad would be
incompatible with the well-known guide that exceptions to
discharge should be confined to those plainly expressed.
Furthermore, we are hesitant to adopt an
interpretation of a congressional enactment which renders
superfluous another portion of that same law. Reading
§ 523(a)(6) [to include injury resulting from negligence]
would obviate the need for § 523(a)(9), which
specifically exempts debts “for death or personal injury
caused by the debtor’s operation of a motor vehicle if
such operation was unlawful because the debtor was
2
Kawaauhau v. Geiger, 523 U.S. 57 (1998).
3
Id. at 61 (emphasis added).
4
Id.
5
Id. at 61–62 (emphasis original) (citation and quotation
marks omitted).
4
intoxicated from using alcohol, a drug, or another
substance.”6
The Court therefore held that a debt arising from injury resulting
from medical malpractice by an uninsured doctor did not fall within
the compass of § 523(a)(6).7
The Court’s discussion in Kawaauhau clearly rules out several
of the theories that Koury advances. The Court teaches that even
a knowing breach of contract, such as Koury alleges took place
here, does not make a debt nondischargeable. And for us to
interpret § 523(a)(6) as rendering nondischargeable every debt
arising from the unlawful operation of a motor vehicle would read
§ 523(a)(9) out of the Bankruptcy Code. This we cannot and shall
not do.
Our most recent gloss on Kawaauhau also disposes of Koury’s
argument that Westmoreland’s driving the pickup without insurance
was in and of itself “willful and malicious injury” under the
statute. In Miller v. J.D. Abrams, Inc.,8 we determined that,
after Kawaauhau, “‘willful and malicious injury’ is a unitary
concept entailing a single two-pronged test,” and that an injury is
willful and malicious when “there is either an objective
6
Kawaauhau, 523 U.S. at 62 (citations and some quotation marks
omitted).
7
Id. at 64.
8
Miller v. J.D. Abrams, Inc. (In re Miller), 156 F.3d 598
(1998).
5
substantial certainty of harm or a subjective motive to cause
harm.”9
That the intent prong describes the motivation to injure, not
the motivation to act in a way that leads to injury, is clear from
the unusual facts of Delaney10 and our holding therein —— which, as
we said in Miller, “remains good law.”11
Delaney unquestionably acted intentionally when he loaded
the shotgun, took it with him to the confrontation with
Corley, and with his finder on the trigger, twice tapped
the barrel of the gun on the windshield of the car to get
Corley’s attention. In contrast, however, the firing of
the gun was neither deliberate nor intentional; on the
contrary, it was wholly unintentional, even though
possibly not wholly unforeseeable. It follows that,
under our (and the majority of the circuits’) reading of
§ 523(a)(6), Delaney did not intend Corley’s injury——or
any injury for that matter. Thus the injury was not
“willful or malicious” on the part of Delaney: He neither
intended the injury nor intentionally took action that
was “substantially certain” to cause the injuries that
Corley suffered.12
The “harm” element contemplated by the Miller intent prong cannot
be fulfilled simply by driving without insurance —— even when the
driver or owner is contractually bound to carry insurance ——
because, absent an accident, driving without insurance does not
cause injury; to conflate the two would confuse causation with
damage. “Harm” rather refers to the consequent injury itself —— in
this case, the destruction of Koury’s security interest as a result
of the accident.
9
Id. at 606.
10
Corley v. Delaney (In re Delaney), 97 F.3d 800 (1996).
11
Miller, 156 F.3d at 604.
12
In re Delaney, 97 F.3d at 802–03 (emphasis original).
6
As there is no evidence in the record that Westmoreland had
any subjective motive to destroy Koury’s interest by totaling his
own pickup, the issue reduces to whether driving without insurance
created an “objective substantial certainty of harm.” Again,
Delaney controls. We held that Delaney’s tapping a loaded gun
against a car windshield was not “substantially certain” to cause
injury to an occupant of the car, so neither could Westmoreland’s
failure to insure amount to such a substantial certainty. In this
case’s causal chain, Westmoreland’s failure to maintain insurance
is simply too distant from Koury’s injury to create an objective,
substantial certainty that harm would occur. Too many causal
“links” intervene: the construction zone, the lack of a shoulder on
the road, the six-inch dropoff, the loss of control of the vehicle,
and the presence of an oncoming car. It is true that driving
without insurance places a lender’s interest in the car at risk,
and that in some proportion of cases a subsequent accident will
therefore result in financial injury to the lender. We are
convinced, however, that such risk or proportion does not qualify
here as an objective, substantial certainty.13
III.
13
Our result here is therefore in accord with that reached by
the district courts, which have largely held that the failure to
insure a vehicle does not make a resulting debt nondischargeable
under § 523(a)(6). See Broussard v. Fields (In re Fields), 203
B.R. 401, 411–12 (Bankr. M.D. La. 1996) (collecting cases).
7
CONCLUSION
Westmoreland’s failure to insure, followed by his driving the
uninsured vehicle, did not create an objective, substantial
certainty of harm; and Westmoreland had no subjective motive to
cause harm. The bankruptcy court properly held, and the district
court correctly affirmed, that Westmoreland’s debt to Koury is
dischargeable in bankruptcy. The judgment of the district court
is, therefore,
AFFIRMED.
8