Menu    2 ABR 244 
HERBERT A. ROSS
U.S. Bankruptcy Judge

UNITED STATES BANKRUPTCY COURT FOR THE DISTRICT OF ALASKA
605 West 4th Avenue, Room 138, Anchorage, AK 99501-2296 (Phone 907/271-2655)




_____________________________________________x 
In re Case No. 4-87-00200-HAR  
In Chapter 7

  
LESTER COBB f/d/b/a COBB  
ENTERPRISES; COBB MINING, and,  
COBB TRUCKING & EQUIPMENT,  
Debtor(s)       
_____________________________________________x 
DONALD LUCUS,  
Plaintiff(s),       
v. Adv. No. 4-87-00200-001-HAR
LESTER COBB,  
Defendant(s).       MEMORANDUM RE DENIAL OF MOTION FOR RECONSIDERATION
_____________________________________________x 


The court entered a final judgement in this case on May 8, 1991, which ruled for plaintiff, Donald Lucus, that his claim against the debtor defendant was not dischargeable under § 523(a)(6) of the Bankruptcy Code, and awarded a judgment for damages to Lucus's property interests. The court did not, however, grant Lucus his attorney fees and the punitive damages he sought. Lucus filed a motion for reconsideration of the denial of punitive TOP    2 ABR 245  damages and attorney fees. The court denies the motion to reconsider.

In this case, I was the trier of fact on both the dischargeability issues as well as to the amount of damages to award. Under Alaska law a punitive damage award is within the discretion of the trier of fact, Alyeska Pipeline Service Co. v. O'Kelley, 645 P2d 767 (Alaska 1982). "By their very nature, such damages turn on the wrongdoer's motive, state of mind and degree of culpability, rather then the particular tort committed." Alyeska at 774. I did not find the evidence egregious enough to award punitive damages, even though the trial was essentially a default matter without debtor appearing to defend.

The issue in this case is to be distinguished from those in which a state court or jury has already awarded punitive damages. The Ninth Circuit has recently held that punitive damages awarded by a state court judgment are dischargeable in an 11 USC § 523(a)(2)(A) dischargeability action, but such a state court award is not dischargeable in a § 523(a)(6) action. Compare

In re Levy, _____ F2d _____, 1991 WL 255969, 1991 US App LEXIS 28485 (9th Cir 12/06/91) regarding the § 523(a)(2)(A) with In re Britton, _____ F2d _____, 1991 US App LEXIS 28487 (9th Cir. 12/06/91) and In re Adams, 761 F.2d 1422 (9th Cir. 1985) regarding § 523(a)(6).

Lucus also argues that he is entitled to have an award of attorney fees under Alaska Civil Rule 82. This was litigation TOP    2 ABR 246  concerning an objection to dischargeability, a federal cause of action, in which attorney fees are generally not allowable. In re Itule, 114 BR 206, 212-13 (9th Cir. BAP 1990). While Lucus included a claim based on trespass, the adversary principally concerned dischargeability. In Itule, while the plaintiff was awarded a damage claim in its nondischargeability action, it was denied attorney fees notwithstanding a contractual right in a lease purchase agreement. Cf. TranSouth Financial Corp. of Fla. v. Johnson, 931 F2d 1505 (11th Cir. 1991) Matter of Jordan, 927 F2d 221, 226-28 (5th Cir. 1991) where attorney fees were allowed in a nondischargeability action when provided for by an enforceable contract between the parties. See also In re Silva, 125 BR 28 (Bankr.CD Cal. 1991).

In re Seaway Express Corp., 105 BR 28, 32 (9th Cir.BAP 1989) held attorney fees are available to a trustee who successfully litigated a right arising under state law which provides for such fees, but such fees are generally denied where the right litigated is derived under federal bankruptcy law. This matter is essentially a federal question of dischargeability. The attorney fees are not a part of the "debt" as the court found in Silva. Therefore, I deny the motion to reconsider the denial of attorney fees to plaintiff in this case.

TOP    2 ABR 246 
DATED: December 27, 1991. 
  
 ______________________________
 HERBERT A. ROSS
 Bankruptcy Judge


Serve: 
Grant Stewart, Esq., for plaintiff 
James DeWitt, Esq., Bar Appointee re Ann Rhian, Deceased. 
M. Gingras, Adv. Case Mgr. 
Pam Taylor, Adm. AnalystH3862