Menu    2 ABR 467 

UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF ALASKA

In re: Case No. A91-00251-HAR )
)
TONY L. STEINBORN, a/k/a )
Tony L. Lundy, )
)
Debtor.   )
)
________________________________________)
ALLSTATE INSURANCE CO., ) Bancap No. 91-3133
)
Plaintiff,)
)
      v.)
)
TONY L. STEINBORN, ) ADV. NO. A91-00251-001-DMD
) Chapter 7
Defendant. )
________________________________________)

ORDER DISMISSING ADVERSARY PROCEEDING
FOR FAILURE TO STATE A CLAIM

        On May 8, 1992, this court entered an order to show cause why this case should not be dismissed for failure to state a claim under 11 U.S.C. § 523(a)(9), which excepts from discharge any debt "for death or personal injury" resulting from debtor's unlawful operation of a motor vehicle while intoxicated. Allstate filed an objection to dismissal on May 15, 1992, contending that it had stated a claim under the version of § 523(a)(9) in effect in 1986, when the debt was incurred. Allstate's claim is for property damage to an Allstate insured vehicle which was struck when debtor, driving while intoxicated, ran a police roadblock. Its complaint does not specify the amount of damages claimed, nor does it allege that any of the damages are for death or personal injury. Allstate maintains that this court should apply the previous version of § 523(a)(9) in this case, and enter a default judgment finding its TOP    2 ABR 468  claim not discharged by debtor's bankruptcy.

        Before its amendment in 1990, § 523(a)(9) excepted from discharge any debt:

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 . . . wherein such motor vehicle was operated and within which such liability was incurred.
Section 523(a)(9) was amended effective November 15,1990 by Pub. L. No. 101-581, Criminal Victims Protection Act of 1990 (S 1931) which expressly provides, in Section 4(b):
(b) Application of Amendments. --The amendments made by this Act shall not apply with respect to cases commenced under title 11 of the United States Code before the date of enactment of this Act.
        Congress clearly intended that application of the amendment to § 523(a)(9) would be determined by the date a petition was filed, rather than the date the debt was incurred. In this case, debtor filed his Chapter 7 petition on March 18, 1991. Accordingly, the current version of § 523(a)(9) controls this case. See In re Gleason, 139 B.R. 249, 252 (Bankr. W.D.Wash. 1992); In re Kupinsky, 133 B.R. 993, 997 (Bankr. S.D.Ill. 1991). Allstate cannot alter this fact by alleging, in its complaint, that the debt is nondischargeable "under 11 U.S.C. § 523(a)(9) applicable at the time of the debt."

TOP    2 ABR 469 

        Allstate also argues that the amended version of § 523(a)(9) is a dramatic change in the law, which should not be applied retroactively. In support of this argument, Allstate cites In re Adams, 761 F.2d 1422 (9th Cir. 1985). In that case, the Ninth Circuit affirmed the district court's finding that a debt resulting from debtor's drunk driving was nondischargeable under § 523(a)(6), as a "willful" and "malicious" injury. The court construed § 523(a)(6) "in light of the clarification of congressional intent provided by [newly enacted] § 523(a)(9)," stating:

        In light of the clear expression of Congressional intent underlying section 523(a)(9), and in light of the conflict among bankruptcy courts that existed at the time that subsection was enacted, we view section 523(a)(9) as a clarification of section 523(a)(6). Accordingly, we hold that the voluntary acts of drinking and driving while intoxicated constitute conduct sufficiently intentional to support a finding of willfulness and malice, as contemplated by section 523(a)(6) and that this interpretation must be given retroactive application.
Id. at 1423.

        The holding in Adams supports application of the amended version of § 523(a)(9) in this case. The amended version of § 523(a)(9) is not a dramatic change of existing law but, rather, a clarification that the type of debt excepted from discharge is one "for death or personal injury." 3 Collier on Bankruptcy § 523.18, p. 523-160 (15th Ed. 1992). This clarification in the law TOP    2 ABR 470  expressly applies to cases filed after the date of enactment of the amendment, November 15, 1990. Debtor's petition was filed March 18, 1991. Therefore,

        IT IS ORDERED:

        1.   The default entered by the Clerk on February 27, 1992 is set aside; and

        2.   This case is dismissed, with prejudice, for failure to state a claim under 11 U.S.C. § 523(a)(9).

        Dated: July 2, 1992

                BY THE COURT



                DONALD MacDONALD IV
                United States Bankruptcy Judge

Serve: L. Veerman, Esq.
B. Call, Esq.
B. Rausch, Esq. (atty for debtor)
Debtor
J. George, Chief Deputy