                                   United States Court of Appeals,

                                             Fifth Circuit.

                                            No. 96-30513

                                        (Summary Calendar).

                         In the Matter of David Alan DELANEY, Debtor.

                    Danny CORLEY, Jr., also known as Bo Corley, Appellant,

                                                  v.

                                 David Alan DELANEY, Appellee.

                                            Oct. 21, 1996.

Appeal from the United States District Court for the Western District of Louisiana.

Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.

       PER CURIAM:

       This appeal, before us for the second time,1 arises in the context of bankruptcy proceedings.

It represents the first occasion for us to address the dischargeability, under 11 U.S.C. § 523(a)(6),

of a judgment debt arising from a debtor's accidental firing of a firearm—albeit one which he

intentionally loads and carries to a confrontation—that causes unintended bodily injury to his eventual

judgment creditor. Agreeing with the district court to which both the initial and post-remand rulings

of the bankruptcy court were appealed, as well as with the majority of circuit courts that have directly

addressed this issue, we hold that such debts are dischargeable, and therefore affirm the post-remand

ruling of the bankruptcy court to that effect.

                                                   I

                                   FACTS AND PROCEEDINGS

       The debt for which Debtor-Appellee David Alan Delaney, a teenaged adult who lived with

his parents, sought and ultimately received discharge in bankruptcy resulted from a final and

   1
    The first time up we determined that the district court's judgment on appeal from the
bankruptcy court was not final, and we dismissed the appeal accordingly. Delaney v. Corley, 77
F.3d 476 (5th Cir.1995).

                                                   1
executory judgment in a state court negligence action. That suit was brought by Appellant Danny

"Bo" Corley, Jr., another teen-aged adult and sometimes-friend of Delaney. Corley sought and

obtained a judgment for damages occasioned by the injuries he had incurred in the wee hours of the

morning while seated as a passenger in a car that had come to a halt in the Delaney driveway. Corley

was injured when a shotgun, which Delaney had intentionally loaded, carried, and aimed at Corley

through the car's windshield, went off by accident. The shotgun discharged after Delaney—with his

finger on the trigger—twice tapped the gun barrel on the windshield of the car.

          The factual details of the incident are set forth in the published opinion of the state court of

appeal and are therefore not reiterated here.2 It suffices that the uncontested facts in the underlying

state law negligence case show that Delaney, in anticipation of a confrontation and possible fight with

Corley outside Delaney's parents' house, loaded his double-barreled shotgun and took it with him to

face Corley, who remained seated in the car that had stopped in the Delaneys' front driveway. It is

equally undisputed that the discharge of the gun and the resulting injuries to Corley were not intended

by Delaney and that his twice tapping the gun barrel on the windshield was, as Co rley himself

testified, intended "to get my attention."

                                                     II

                                               ANALYSIS

           At the heart of this case is the question whether, for a debtor to be denied discharge under

§ 523(a)(6) of a debt arising from his infliction of death or bodily injury, it is the act or the injury that

must be willful and malicious. This issue was recently crystallized by the Eleventh Circuit in In re

Walker, in which that court stated that the central question in such cases is:

          [W]hether a deliberate and intentional act that results in injury may constitute a "willful and
          malicious injury " under Section 523(a)(6), or whether the debtor m ust intend the actual
          injury before the resulting debt may be nondischargeable.3


   2
    See Corley v. Delaney, 629 So.2d 1255, 1256-57 (La.App. 3d Cir.1993) writ denied 637
So.2d 156 (La.1994).
   3
       In re Walker, 48 F.3d 1161, 1164 (11th Cir.1995) (emphasis in original).

                                                     2
The Eleventh Circuit went on to note that:

          The majority of circuits that have addressed this issue have strictly interpreted section
          523(a)(6) to require that the debtor either intend the resulting injury or intentionally take
          action that is substantially certain to cause the injury....4

          Today we join that circuit majority,5 as did the Eleventh Circuit in In re Walker, by holding

that, for willfulness and malice to prevent discharge under § 523(a)(6), the debtor must have intended

the actual injury that resulted.6 As succinctly stated by a bankruptcy court in Georgia, "the plain

language of Section 523(a)(6)" excepts from discharge debts arising from "willful and malicious

injury' rather than "willful and malicious acts which cause an injury.'7

          Here, Delaney unquestionably acted intentionally when he loaded the shotgun, took it with

him to the confrontation with Corley, and, with his finger 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


   4
       Id. (emphasis added).
   5
       See id. at n. 3 regarding the positions taken by other circuits.
   6
     We note that in cases involving the application of intentional injury exclusions found in
liability insurance policies, Louisiana makes an identical distinction between intentional acts and
intended injuries as the one we make here. See Breland v. Shilling, 550 So.2d 609, 611-614
(La.1989) (holding that proper inquiry is not whether plaintiff's alleged injuries were caused by
intentional acts by insured, but whether insured subjectively intended to inflict plaintiff's specific
alleged injuries or reasonably expected that these injuries would follow from his conduct). Texas
also appears to follow a similar rule, see State Farm Fire & Cas. Co. v. S.S. & G.W., 858 S.W.2d
374, 378 (Tex.1993) (following Restatement (Second) of Torts rule that "an insured intends to
injure or harm another if he intends the consequences of his act, or believes that they are
substantially certain to follow"). It is unclear to us just what rule Mississippi follows at this time.
See Davis v. Continental Cas. Co., 560 F.Supp. 723, 728-29 (D.Miss.1983); Freed v. Protective
Life Ins. Co., 405 F.Supp. 175, 181 (S.D.Miss.1975), aff'd, 551 F.2d 861 (5th Cir.1977). Finally,
we note that numerous other states also appear to follow the view that for such an exclusion to
apply an insured must have intended his act and have intended to cause some kind of injury. See
Annotation, Construction and Application of Provision of Liability Insurance Policy Expressly
Excluding Injuries Intended or Expected by Insured § 5[a], 31 A.L.R.4th (1984 and Supp.1995).
   7
       Eaves v. Hampel (In re Hampel), 110 B.R. 88, 93 (Bankr.M.D.Ga.1990).

                                                     3
the injury was not "willful and 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.

Consequently, as ultimately held by both the bankruptcy court and the district court, the negligence

judgment debt was and remains dischargeable in bankruptcy.

       The findings of fact by the bankruptcy court on remand, like those by the district court both

before and after remand, were not clearly erroneous. And our de novo review of the applicable law

comports with those of the district court and of the bankruptcy court on remand. The determination

of dischargeability by the bankruptcy court on remand, as affirmed by the district court, is in all

respects

       AFFIRMED.




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