The motion to reopen will be denied because: (a) the matter has been pending in Alaska Superior Court in Anchorage for about 2½ years; (b) that court has concurrent jurisdiction to determine the dischargeability issue; (c) there appears to be insurance which would justify continuing the matter in state court in any event; and (d) if the debtor intends that this court hear the entire litigation, it would have to be withdrawn in part to the U.S. District Court to try the personal injury action (thus disruptively splitting the litigation among three different courts). There being no open case, the state court personal injury action will not be removed.

     On the petition date there was a pending Superior Court personal injury action against debtor, Joel W. Townsend v. Bonnie McDonald, Case No. 3AN-89-9695 Civil which had been filed in     2 ABR 364  November, 1989. From information gleaned from Bonnie McDonald's "Notice of Removal" which she lodged with this court on March 18, 1992, it appears that the debtor was charged with driving while under the influence of alcohol. Thus, the debt might be nondischargeable under 11 USC § 523(a)(9).

     In the removal documents there is also an indication that Ms. McDonald was insured. See "Opposition to Defendant's Motion to Dismiss and Motion to Lift Bankruptcy Stay" filed in the state court lawsuit. McDonald's state court attorney demurely (or disingenuously) states "[e]thical considerations prohibit defense counsel from further addressing plaintiff's argument seeking to impose liability on Ms. McDonald's insurer. Ms. McDonald's insurer is not our client in this matter." See "Reply to Plaintiff's Opposition to Defendant's Motion to Dismiss" filed in the state court lawsuit.

          3.1. The State Court has Concurrent Jurisdiction of the Dischargeability Issue - A civil action to determine dischargeability (at least the kind involved here, which is not an action under §§ 523(a)(2, 4, 6)) is within the concurrent jurisdiction of the U.S. District Court and any other court with jurisdiction. 28 USC § 1334. The statute provides:

Section 1334. Bankruptcy cases and proceedings

     (a) Except as provided in subsection (b) of this section, the district courts shall have original and exclusive jurisdiction of all cases under title 11.

    2 ABR 365 

     (b) Notwithstanding any Act of Congress that confers exclusive jurisdiction on a court or courts other than the district courts, the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11.

The U.S. District Court for Alaska has generally referred bankruptcy matters to the U.S. Bankruptcy Court for the District of Alaska. See July 24, 1984 Miscellaneous Order of U.S. District Court for District of Alaska pursuant to 28 USC § 157(a).

     One of the leading bankruptcy treatises describes the type of issue arising in a dischargeability complaint as falling within "arising in" language of the statute. 1 Collier on Bankruptcy ¶ 3.01[1][c][v] at page 3-30 (15th ed 1991). Compare In re Moralez, 128 BR 526, 528 (Bankr ED Mich 1991) and In re Mitchell, 132 BR 585, 588 (Bankr SDInd 1991) (both concerning § 523(a)(5) nondischargeability issues involving support payments).

          3.2.  Whether to Reopen the Case is Within the Bankruptcy Court's Discretion - 11 USC § 350(b) provides that a case may be reopened to administer assets, accord relief to a debtor, or for other cause. Whether or not to reopen is within the sound discretion of the bankruptcy court. In re Herzig, 96 BR 264, 266 (9th Cir BAP 1989); In re Bowen, 102 BR 752, 754 (9th Cir BAP 1989); and, In re Guzman, 130 BR 489 (Bankr WDTex 1991).

          3.3.  The Case Should Not be Reopened on Grounds of Judicial Economy and Comity - § 523(9) of the Bankruptcy Code provides:

    2 ABR 366 
Section 523. Exceptions to discharge

     (a) 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- • • •

          (9) for death or personal injury caused by the debtor's operation of a motor vehicle if such operation was unlawful because debtor was intoxicated from using alcohol, a drug, or another substance; • • •

     (9) to any entity, to the extent that such debt arises from a judgment or consent decree entered in a court of record against the debtor wherein liability was incurred by such debtor as a result of the debtor's operation of a motor vehicle while legally intoxicated under the laws or regulations of any jurisdiction within the United States or its territories wherein such motor vehicle was operated and within which such liability was incurred; • • •

Notwithstanding the more restrictive language of the earlier version of § 523(a)(9), the 9th Circuit has construed the former section liberally for the creditor. See In re Hudson, 859 F2d 1418 (9th Cir 1988) which held that a debt incurred as a result of a drunk driving incident could be nondischargeable even though no final judgment had been entered.

     Even if McDonald's debt to Townsend is dischargeable, she may still be responsible for the accident and have insurance to cover Townsend's damages. Where a debtor has already been discharged, the discharge injunction under 11 USC § 524 may be modified to permit a personal injury claimant to proceed against the debtor for the sole purpose of recovering on his or her insurance     2 ABR 367  coverage. In re Green, _____ F2d _____, 1992 WL 19286 (2nd Cir 1992). It appears that Townsend is proceeding against McDonald individually in his personal injury action as well as hoping to recover on her insurance coverage. If Townsend is unsuccessful in establishing nondischargeability in the state court action, he may be liable for damages for violating the discharge injunction. Thus, Townsend himself might have sought to reopen to allow the state court suit against McDonald to continue for the purpose of pursuing the insurance coverage. In re Shondel, 950 F2d 1301 (7th Cir 1991).

     The intended removal of the entire state court action to this court would create a jurisdictional mess. A bankruptcy court cannot try a personal injury or wrongful death claim. 28 USC § 157(b)(5). Thus, by reopening this case, the lawsuit would wind up impacting three courts: the Superior Court, this Bankruptcy Court, and the U.S. District Court. This is unsatisfactory when the Superior Court is jurisdictionally equipped to give a complete remedy to the parties.

     McDonald moved in the Superior Court to dismiss the complaint against her since Townsend had not challenged her dischargeability in the Bankruptcy Court. This is a specious argument since McDonald could have, but did not, raise the issue herself. There is no time bar to raising the issue of a § 523(a)(9) dischargeability complaint as there is for § 523(a)(2, 4 or 6) complaints (i.e., those involved with fraudulent behavior). See 11 USC § 523(c) and Bankruptcy Rule 4007(b).