The willful and malicious injury exception to discharge in bankruptcy: just how narrow should it be?

• Author: Rountree, William A.

Under 11 U.S.C. [sections] 523(a)(6), debts for willful and malicious injury are excepted from discharge in bankruptcy.(1) In 1904, the U.S. Supreme Court held in Tinker v. Colwell, 193 U.S. 473 (1904), that the willful and malicious injury exception did not require proof of specific malicious intent to injure the creditor. The Court explained that if the debtor's act was intentional and necessarily caused injury, the requisite malice could be implied in law.(2) Courts applied this standard for decades following the Tinker decision,(3) both under the former Bankruptcy Act and the current Bankruptcy Code.(4) However, in March 1998, the Supreme Court abandoned this nearly century-old judicial construction in Kawaauhau v. Geiger, 118 S. Ct. 974 (1998).

In Geiger, a physician treated an infection in his patient's foot with oral penicillin.(5) Although the physician knew intravenous penicillin was more appropriate, he prescribed oral penicillin because it was less expensive.(6) The infection progressed, requiting amputation of the patient's foot.(7) After a trial jury awarded the patient a substantial sum in a subsequent malpractice suit, the physician, who carried no malpractice insurance, petitioned for bankruptcy.(8) The bankruptcy court ruled the judgment debt was for willful and malicious injury and denied discharge.(9) The district court affirmed, holding the physician's knowing administration of inferior care constituted willful conduct and, given the substantial certainty of physical harm, the necessary malice was implied in law.(10) The U.S. Court of Appeals for the Eighth Circuit reversed, holding the debt did not fall within [sections] 523(a)(6).(11) The court noted the patient did not allege that injury was intended or that the physician believed injury was substantially certain to result.(12)

The Supreme Court framed the issue on appeal as whether [sections] 523(a)(6) applies to intentional acts that cause injury, or only to acts committed with the actual intent to injure.(13) It noted that legislative reports defined willful as "deliberate or intentional."(14) Because "willful" modifies "injury" in the language of the statute, the Court determined that [sections] 523(a)(6) applies only to deliberate or intentional injuries.(15) Moreover, the Court reasoned that the statutory formulation causes the lawyer's mind to focus on intentional torts.(16) Intentional torts require that an actor intend not only the act itself, but also the consequences of the act.(17)

The Court explained that the alternate construction of [sections] 523(a)(6) would render the exception overly broad.(18) Intentionally turning the steering wheel of a car while neglecting to look for oncoming traffic could qualify as willful and malicious.(19) An intentional breach of contract also might fit the description. In other words, if the exception were construed as applying to all intentional acts that cause injury, recklessly and negligently inflicted injuries would come within the statute's compass.

The Geiger court identified the issue on appeal as a pivotal question regarding the scope of [sections] 523(a)(6).(20) However, previous judicial resolutions of this same issue have had very little impact on the scope of the exception.(21) Courts applying the Tinker standard required an intentional act which necessarily caused injury.(22) A minority of courts rejected the Tinker standard, reasoning that it was overruled by the Bankruptcy Reform Act of 1978.(23) These courts required specific intent to injure; but they held this element...