                   United States Court of Appeals,

                                  Fifth Circuit.

                                   No. 95-50309

                                 Summary Calendar.

             In the Matter of John W. GREENWAY, Debtor.

Joanne Brito BOYCE; Eric Boyce; John Sommerfield; Terry Rock;
Kay Rock, For Representatives of the Estate of Debbie Rock,
Appellees Cross-Appellants,

                                        v.

            John W. GREENWAY, Appellant Cross-Appellee.

                                  Jan. 10, 1996.

Appeals from the United States District Court for the Western
District of Texas.

Before HIGGINBOTHAM, DUHÉ and EMILIO M. GARZA, Circuit Judges.

     PER CURIAM:

     Defendant   John       W.    Greenway   appeals   the    district    court's

partial    reversal    of    the     bankruptcy     court's     order    granting

Greenway's motion for summary judgment.              Plaintiffs Joanne Brito

Boyce, Eric Boyce, John Sommerfield, Terry Rock, Kay Rock, and the

Estate of Debbie Rock cross-appeal the district court's partial

affirmance of the bankruptcy court's order granting Greenway's

motion for summary judgment.          We reverse in part, affirm in part,

and render judgment.

                                         I

     A    motorboat,    operated       by    John   Greenway,     crashed    into

Plaintiffs vessel, causing a fatality and various injuries.                   The

accident occurred on a lake at night.           Greenway had been drinking.

Plaintiffs sued in state court, and a jury, finding that Greenway

                                         1
was   sixty     percent      responsible     for    the    accident,    awarded     the

Plaintiffs damages proportional to Greenway's fault.1                        Unable to

pay the judgment, Greenway sought protection under Chapter 7 of the

Bankruptcy       Code.         The    Plaintiffs     commenced       this    adversary

proceeding in the bankruptcy court to block the discharge of

Greenway's debt.           The Bankruptcy Code does not allow the discharge

of debts arising from, among other things, willful and malicious

injuries,2      or    from    death   or    personal      injuries   caused    by   the

operation of a "motor vehicle" if that operation was unlawful due

to the debtor's intoxication.3               The Plaintiffs argued that these

two provisions barred the discharge of Greenway's debt.                             The

bankruptcy court disagreed.               Because the jury in Greenway's state

trial had rejected liability for gross negligence, the bankruptcy

court found the Plaintiffs collaterally estopped from litigating

whether Greenway's actions were willful or malicious under 11

U.S.C. § 523(a)(6).           The bankruptcy court further found that the

plain       meaning   of     the   term    "motor   vehicle,"     in    11   U.S.C.   §

523(a)(9),      did    not    include      motorboats,     and   held   §    523(a)(9)


        1
      The jury found Plaintiffs forty percent responsible for the
accident, and under Texas comparative negligence rules, compensated
Plaintiffs for only sixty percent of the total value of their
injuries.
      2
     See 11 U.S.C. § 523(a)(6) (exempting from discharge any debt
"for willful and malicious injury by the debtor to another entity
or to the property of another entity").
      3
     See 11 U.S.C. § 523(a)(9) (exempting from discharge any debt
incurred "for death or personal injury caused by the debtor's
operation of a motor vehicle if such operation was unlawful because
the debtor was intoxicated from using alcohol, a drug, or another
substance").

                                             2
inapplicable to Greenway's case. The bankruptcy court thus granted

Greenway's motion for summary judgment.                On appeal, the district

court affirmed the bankruptcy court's finding that the Plaintiffs

were collaterally         estopped    from      litigating   whether   Greenway's

actions had been willful and malicious, but reversed the bankruptcy

court's interpretation of the term "motor vehicle," reading the

term to include motorboats.           The district court then remanded the

case to the bankruptcy court for trial on whether Greenway was

intoxicated, within the meaning of § 523(a)(9) of the Bankruptcy

Code, when the accident occurred.4                Both Plaintiffs and Greenway

filed timely notices of appeal.

                                           II

        The Bankruptcy Code allows a debtor to discharge all debts

incurred    prior    to   filing     for    bankruptcy,      subject   to   certain

exceptions.    11 U.S.C. § 727(b);             Citizens Bank & Trust Co. v. Case

(In re Case), 937 F.2d 1014, 1024 (5th Cir.1991). Greenway appeals

the district court's reading of the exception contained in §

523(a)(9)    of     the   Bankruptcy       Code     involving   the    intoxicated

operation of a "motor vehicle."                  We review a district court's

interpretation of the Bankruptcy Code de novo.                  Bruner v. United

States (In re Bruner), 55 F.3d 195, 197 (5th Cir.1995).

        As with any statutory question, we begin with the language of

the statute.      Kellogg v. United States (In re West Texas Marketing

Corp.), 54 F.3d 1194, 1200 (5th Cir.), cert. denied, --- U.S. ----,


    4
     In the state court proceeding, the jury made no finding as to
Greenway's possible intoxication.

                                           3
116 S.Ct. 523, --- L.Ed.2d ---- (1995). In determining a statute's

plain meaning, we assume that, absent any contrary definition,

"Congress intends the words in its enactments to carry their

ordinary,       contemporary,       common       meaning."    Pioneer   Investment

Services v. Brunswick Associates, 507 U.S. 380, ----, 113 S.Ct.

1489,       1495,   123   L.Ed.2d    74   (1993)     (internal    quotation   marks

omitted).       As the Supreme Court has stated:             "There is, of course,

no more persuasive evidence of the purpose of a statute than the

words by which the legislature undertook to give expression to its

wishes."       Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571,

102 S.Ct. 3245, 3250, 73 L.Ed.2d 973 (1982) (internal quotation

marks omitted). If the language is clear, then "the inquiry should

end."       United States v. Ron Pair Enterprises, 489 U.S. 235, 241,

109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989).

            The terms "motorboat" or "water craft" do not appear in §

523(a)(9) of the Bankruptcy Code.                  Nor does the Bankruptcy Code

expressly define the term "motor vehicle."                     Therefore, we must

determine if the plain or common meaning of the term "motor

vehicle," as used in § 523(a)(9), includes motorboats.5                   Only if


        5
      We note that "11 U.S.C. § 523(a)(9) was enacted without any
reported legislative history." Thomas v. Ganzer (In re Ganzer), 54
B.R. 75, 76 (Bankr.D.Minn.1985).     Whether § 523(a)(9) bars the
discharge of debts arising from the intoxicated operation of a
motorboat is an issue of first impression in this circuit. The
only two other reported cases addressing the issue reached opposite
results. Compare Radivoj v. Williams (In re Williams), 101 B.R.
356, 358 (Bankr.S.D.Fla.1989) aff'd, 111 B.R. 361 (S.D.Fla.1989)
(holding that § 523(a)(9) of the Bankruptcy Code includes
motorboats) with Willison v. Race (In re Race), 159 B.R. 857, 860-
61 (Bankr.W.D.Mo.1993) (holding that § 523(a)(9) does not include
motorboats).

                                             4
the term is ambiguous will we proceed beyond the language as

written. Ron Pair Enterprises, Inc., 489 U.S. at 241, 109 S.Ct. at

1030.       The dictionary defines "motor vehicle" as "an automotive

vehicle not operated on rails;           esp:   one with rubber tires for use

on highways."       WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 775 (1986);       see

also RANDOM HOUSE COLLEGE DICTIONARY 871 (revised ed. 1980) (defining

"motor vehicle" as "any transportation vehicle designed for use on

highways,      as   an   automobile,    bus,    or    truck").     Additionally,

Congress      has    used     "motor   vehicle"      to   refer   exclusively    to

automobiles in other statutes.               For example, Chapter 301 of the

Transportation Code defines "motor vehicle" as "any vehicle driven

or drawn by mechanical power manufactured primarily for use on the

public streets, roads and highways, but does not include a vehicle

operated only on a rail line."           49 U.S.C. § 30102(a)(6).6

        The above definitions comport with our understanding that the

plain and common meaning of the term "motor vehicle" does not

include motorboats.           Had Congress intended to include motorboats

within § 523(a)(9), they would have either defined the term "motor

vehicle"      to    include     motorboats     or    added   motorboats   to    the

exception.      It is not the job of the courts to legislate, and the

Supreme Court has counseled that where the statutory language is


        6
       In addition, we note that Congress consistently refers to
motor vehicles and water craft separately in its enactments. See,
e.g., 31 U.S.C. § 1344(g)(1) (defining "passenger carrier" to mean
"passenger motor vehicle, aircraft, boat, ship, or other similar
means of transportation"); 16 U.S.C. § 1133(c) (discussing the use
of "motor vehicles, motorized equipment, and motorboats");      22
U.S.C. § 4304a(a)(2) (setting insurance requirements for "motor
vehicles, vessels, and aircraft").

                                          5
plain, "the sole function of the court is to enforce it according

to its terms."    Ron Pair Enterprises, Inc., 489 U.S. at 241, 109

S.Ct. at 1030 (internal quotation marks omitted).     The district

court erred in reading the term "motor vehicle" in § 523(a)(9) of

the Bankruptcy Code to include motorboats.7   See Willison v. Race

(In re Race), 159 B.R. 857, 860-61 (Bankr.W.D.Mo.1993) (resisting

the urge "to give effect to a perceived goal of Congress" and

holding that the plain language of § 523(a)(9) does not include

motorboats).     Accordingly, we hold that § 523(a)(9) does not

encompass motorboats, and therefore does not bar the discharge of

Greenway's debt.8

                                 III

        Plaintiffs argue that the district court erred in upholding

the bankruptcy court's ruling that Plaintiffs were collaterally

estopped from litigating whether Greenway's actions were willful


    7
      We reject the plaintiffs contention that we should parse the
term "motor vehicle" into its component parts, thereby defining the
term as any "vehicle" or "conveyance" that is powered by a
mechanized motor. Such a technical definition of the term "motor
vehicle" would result in including within the statute motorized
wheelchairs, golf carts, riding lawn mowers, and perhaps even
certain children's toys. Reading the term in this way would be
overbroad, and would not comport with the Supreme Court's view that
in interpreting the Bankruptcy Code, we must try to discern the
"natural reading" of the language in question.            Ron Pair
Enterprises, 489 U.S. at 241, 109 S.Ct. at 1030.
        8
       Our conclusion is also supported by the fact that we are
bound to construe the exceptions contained in § 523 of the
Bankruptcy Code narrowly and in favor of the debtor. See Citizens
Bank & Trust Co. v. Case (In re Case), 937 F.2d 1014, 1024 (5th
Cir.1991) ("Any exception to the general discharge of a debtor's
debts is strictly governed by the Code and construed narrowly in
favor of the debtor and against the creditor requesting the
determination.").

                                  6
and malicious under § 523(a)(6) of the Bankruptcy Code, a finding

which would    disallow    the    discharge     of   Greenway's    debt.    The

preclusive effect of a state court judgment is a question of law

that we review de novo.         Garner v. Lehrer (In re Garner), 56 F.3d

677, 679 (5th Cir.1995).           A state court judgment's preclusive

effect on a subsequent federal action is determined by the full

faith and credit statute, which provides that state proceedings

"shall have the same full faith and credit in every court within

the United States ... as they have by law or usage in the courts of

such State ... from which they are taken."                 28 U.S.C. § 1738;

Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373,

380, 105 S.Ct. 1327, 1331-32, 84 L.Ed.2d 274 (1985).                Under this

statute, we must look to the rules of preclusion of the state in

which   the   judgment    was    rendered   in   order     to   determine   the

judgment's preclusive effects. Marrese, 470 U.S. at 380, 105 S.Ct.

at 1332.   Because Greenway's state judgment was entered by a Texas

court, we apply Texas preclusion rules.              Garner, 56 F.3d at 679.

        Under Texas law, "collateral estoppel bars relitigation of

any ultimate issue of fact actually litigated and essential to the

judgment in a prior suit."        Bonniwell v. Beech Aircraft Corp., 663

S.W.2d 816, 818 (Tex.1984);          see also Barr v. Resolution Trust

Corp., 837 S.W.2d 627, 628 (Tex.1992) (stating that collateral

estoppel   "prevents     relitigation      of   particular      issues   already

resolved in a prior suit"). To determine whether this standard has

been met, "a party must establish that (1) the facts sought to be

litigated in the second action were fully and fairly litigated in


                                       7
the prior action, (2) those facts were essential to the judgment in

the first case, and (3) the parties were cast as adversaries in the

first action."          Bonniwell, 663 S.W.2d at 818;                     see also Amica

Mutual Insurance Co. v. Moak, 55 F.3d 1093, 1097 (5th Cir.1995)

(quoting Bonniwell, 663 S.W.2d at 818).                          The Plaintiffs were

adverse to Greenway in the state trial, and do not dispute that

gross negligence was adequately litigated.                      Nor do the Plaintiffs

dispute that the facts sought to be litigated in the bankruptcy

court       were    essential       to   the       judgment   in    the    state     trial.

Therefore, we must determine whether the jury's refusal to find

gross negligence in the state trial necessarily determined that

Greenway's         conduct    was    not    "willful      and      malicious"      under   §

523(a)(6) of the Bankruptcy Code.                   In the state court proceeding,

gross negligence was defined to the jury as "such an entire wont of

care as to establish that the act or omission in question was the

result of actual conscious indifference to the rights, welfare and

safety of the persons affected thereby."9                     Conscious indifference

is the salient element of gross negligence under Texas law.                            See

Transportation Insurance Co. v. Moriel, 879 S.W.2d 10 (Tex.1994)

(tracing development of Texas law on gross negligence).                            We have

consistently defined "willful and malicious" under § 523(a)(6) of

the Bankruptcy Code to mean "intentional" and lacking "just cause

or excuse."        See Garner, 56 F.3d at 681 (listing cases).                  Comparing

Texas' standard         for     gross      negligence     with     the    language    of §

        9
      Pursuant to Texas law, the jury was asked in "Question 9,"
"Was such negligence by John Greenway gross negligence?" The jury
answered, "No."

                                               8
523(a)(6), we agree with the district court that the jury's refusal

to find that Greenway acted with "actual conscious indifference"

necessarily precludes a subsequent finding that Greenway's actions

were   both   "intentional"   and   without    "just   cause   or   excuse."

Accordingly, we affirm the district court's holding that the

Plaintiffs    are   collaterally    estopped   from    litigating    whether

Greenway's actions were willful and malicious under § 523(a)(6) of

the Bankruptcy Code.

                                     IV

       We REVERSE the district court's order insofar as it includes

motorboats within the term "motor vehicle" under § 523(a)(9) of the

Bankruptcy Code, and we hold that § 523(a)(9) does not bar the

discharge of Greenway's debt. We AFFIRM the district court's order

insofar as it holds that Greenway's acquittal for gross negligence

in his state jury trial collaterally estops the Plaintiffs from

seeking to litigate whether Greenway's actions were "willful and

malicious" under § 523(a)(6) of the Bankruptcy Code.                 Because

neither of the exceptions at issue here disallows the discharge of

Greenway's debt in bankruptcy, we RENDER judgment in favor of

Greenway.




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