MEMORANDUM OF DECISION DENYING PLAINTIFF’S SUMMARY JUDGMENT MOTION
Plaintiff Dennis McAlister contends that his pre-bankruptcy state court judgment against Defendant Richard Slosberg, his former attorney, determined all issues pertinent to his averments that Slosberg’s obligations to him are nondischargeable under § 523(a)(6). Slosberg, a Chapter 7 debtor, asserts that the state court judgment does not carry preclusive effect in this discharge-ability action because it was entered by default.
For the reasons set forth below, I conclude that the state court judgment does not entitle McAlister to judgment as a matter of law and deny his summary judgment motion. 1
BACKGROUND
History of the Litigation
A. Round One: Slosberg’s Sloth
In 1990, after unsuccessfully defending a state court paternity action, McAlister retained Slosberg to prosecute an appeal. The two kept in regular contact for approximately two years, meeting in person ten to twenty times.
While the paternity appeal was pending, McAlister was charged with operating a vehicle while under the influence of intoxicating liquor. He hired Slоsberg to defend him. After Slosberg thrice failed to appear at motion hearings in that case, McAlister hired a new lawyer. The new attorney checked on the paternity appeal and reported to McAlis-
B. Bound Two: Slosberg Slips Up
McAlister sued Slosberg for malpractice. Slosberg managed his own defense no better than he had represented McAlister. As a sanction for failing to comply with a discovery order, the state court defaulted Slosberg.
A jury trial on damages followed. The jury awarded McAlister compensatory damages for mental distress ($3,800.00) and punitive damages ($19,000.00) based on a determination that Slosberg acted with malice. In addition, it awarded him legal fees and costs ($3,510.00) and lost wages ($800.00), for a total award of $27,110.00. The court denied Slosberg’s trio of post-trial motions.
C. Round Three: Slosberg Stifled on Appeal
Slosberg appealed to the Supreme Judicial Court of Maine, challenging the lost wages, mental distress, and punitive damages awards.
See McAlister v. Slosberg,
D. Round Four: Slosberg Seeks Solace in Bankruptcy
Slosberg next filed a voluntary Chapter 7 petition. McAlister initiated an adversary proceeding seeking a determination that Slosberg’s obligations to him are excepted from discharge because they constitute damages for willful and malicious injury within the meaning of § 523(a)(6) or, alternatively, because they are damages arising from fiduciary fraud or defalcation within the meaning of § 523(a)(4).
Summary Judgment Arguments
McAlister’s asserts that he is entitled to summary judgment because, taken together, the state court default order and damages verdict preclude evidentiary contest of any factual issues material to the elements of his § 523(a)(6) and (a)(4) claims. More specifically, he contends that the state court’s finding of “malice” (as that term is defined in Maine law) was a finding essential to the jury’s punitive damage award and that such a finding comprehends all elements of § 523(a)(6) willfulness and maliciousness.
In addition, McAlister argues that Slos-berg’s admitted acceptance of a retainer for services he failed to render, the jury verdict, and an administrative order directing repayment of the retainer 2 compel summary judgment in his favor on the § 523(a)(4) fiduciary defalcation count.
Slosberg asserts that the state court default judgment has no issue preclusion potency under Maine law because there was no actual litigation of the facts upon which McAlister’s recovery was based
(i.e.,
because they were “deemed admitted” by default). Further, he asserts that use of a default-driven judgment to establish facts in subsequent bankruptcy dischargeability litigation does violence to the Bankruptcy Code’s fresh start policies. As to the jury’s findings, he argues that the trial judge never put the question of malice to the jury; rathеr, the jury was instructed that malice and negligence were deemed proven by default and that the judge gave malice instructions only “to place the jury in a better position to assess the damages.” Thus, he contends, there was no “finding” of malice by the jury. Furthermore, Slosberg argues that, even if the jury did make a finding of malice en route to its punitive damages award, the definition of malice under Maine law does not subsume § 523(a)(6)’s substantive content. Thus, in Slosberg’s view, a pre-bankruptcy finding of malice in support of a punitive damage award in a Maine civil suit does not
Slosberg did not brief the § 523(a)(4) issues.
DISCUSSION
Summary Judgment Standard
I will grant McAlister’s summary judgment motion if, on the basis of the complete summary judgment record before me, “there is no genuine issue as to any material fact” and he is entitled to judgment “as a matter of law.” Fed.R.Civ.P. 56(c).
See also Celotex Corp. v. Catrett,
Issue Preclusion in Dischargeability Proceedings
The principle of issue preclusion prevents parties from relitigating issues finally determined elsewhere.
See Aetna Casualty & Surety Co. v. Markarian (In re Markarian),
McAlister’s motion raises the question whether his state court judgment, a hybrid creature with characteristics of a default judgment and those of a jury verdict, is constituted of the stuff that can carry issue preclusive effects. This inquiry is problematic, but I will touch upon it briefly. It also raises the question whether such issue pre-clusive effects as it may carry coincide with detеrminative elements of McAlister’s claims of § 523(a)(6) and § 523(a)(4) nondischarge-ability.
Recent developments in bankruptcy law demonstrate that the state court did not resolve issues determinative of McAlister’s § 523(a)(6) dischargeability claim. Thus, even were I to assume that a state court judgment of this ilk could operate with issue preclusive force in subsequent litigation presenting overlapping, material factual issues, I conclude that it does not do so in the case before me. As neither McAlister’s argument nor the record adequately supports his entitlement to preclusion on the § 523(a)(4) claim, he falls short there, as well.
A Standard for Issue Preclusion
Maine law determines the preclusive effects of McAlister’s state court judgment.
See Matsushita Elec. Indus. Co., Ltd. v. Epstein,
1. Issue Preclusion by Default
McAlister asserts that the facts established by Slosberg’s default, along with facts found by the jury in connection with its damage determination, entitle him to judgment. My focus must be on both the structure of the judgment and its factual underpinnings.
See Matsushita Electric Indus. Co., Ltd.,
Whether Maine courts would give McAlister’s judgment issue-preclusive effect in a second action against Slosberg is not crystalline. The question of the preclusive effect of facts established by default was left unanswered in
Forbes v. Wells Beach Casino, Inc.,
There are good reasons to question the sufficiency of default judgments for issue preclusion purposes, particularly in the bankruptcy context. Among other things, it is not unnatural, on the eve of bankruptcy, for a prospective debtor to ignore pending complaints and litigation (and, as a result, to suffer defaults) with the expectation that a bankruptcy discharge will provide salvation.
6
Uncritical application of issue preclusion springing from default determinations might lead to dischargeability becoming a function of the pleader’s craft, rather than of factual findings based on evidence.
See
Charles Jordan Tabb and Robert M. Lawless,
Of Commas, Gerunds, and Conjunctions: The Bankruptcy Jurisprudence of the Rhenquist Court,
42 Syracuse L.Rev. 823, 865-66 (1991) (criticizing
Grogan,
For today, there is a path out of the issue preclusion thicket: Even were I to conclude that, given its character, McAlister’s рre-bankruptcy judgment could fill his quiver with issue preclusion arrows, that conclusion would not carry the day for him. This is so because a careful review of Maine law and elements of § 523(a)(6) discloses that the state court judgment did not resolve the
same issues
as his dischargeability complaint presents.
See e.g., Gillman,
Unfortunately, the path out of the first thicket traverses a briar patch ah its own.
B. Elements of § 523(a)(6) Nondis-chargeability
Section 523(a)(6) excepts from the individual debtor’s discharge “any debt ... for will-fill and malicious injury by the debtor to another entity or to the property of another entity.” § 523(a)(6).
“Willful” and “malicious” are distinct elements in the § 523(a)(6) analysis.
See Reynolds-Marshall,
Section 523(a)(6)’s landscape was recently re-contoured by the Supreme Court in Ka
waauhau v. Geiger (In re Geiger),
— U.S. -,
To determine whether the state court judgment resolved the same issues as McAl-ister’s § 523(a)(6) claim presents, I will examine the section’s post-In re Geiger content and then compare it to the state law issues determined by McAlister’s state law judgment.
a. Willfulness and Malice Before In re Geiger
In a recent
pre-In re Geiger
decision, the First Circuit adopted a definition of willful and malicious injury from what it termed “the rule of the Massachusetts bankruptcy courts and the further refinement of it in Collier’s treatise on bankruptcy.”
Printy,
“ ‘Malicious’ means an act done in conscious disregard of one’s duties. No special malice toward the creditor need be shown.
[T]he term ‘willful and malicious’ in § 523(a)(6) means an act intentionally committed, without just cause or excuse, in conscious disregard of one’s duty and that necessarily produces an injury.”
To fall within the exception of section 523(a)(6), the injury to an entity or property must have been willful and malicious. An injury to an entity or property may be a malicious injury within this provision if it was wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill-will.
The word “willfull” [sic] means “deliberate or intentional,” referring to a deliberate аnd intentional act that necessarily leads to injury. Therefore, a wrongful act done intentionally, which necessarily produces harm or which has a substantial certainty of causing harm and is without just cause or excuse, may be a willful and malicious injury. While something more than a mere voluntary act is necessary to satisfy the scienter requirement of section 523(a)(6), specific intent to injure is not necessary.
The malice element of section 523(a)(6) requires an intent to cause the harm, and the fact that the injury was caused through negligence or recklessness does not satisfy that standard of proof. An injury inflicted willfully and with malice under section 523(a)(6) is one inflicted intentionally and deliberately, and either with the intent to cause the harm complained of, or in circumstances in which the harm was certain or almost certain to result from the debt- or’s act.
Id. (alteration in original) (quoting 4 Collier on Bankruptcy ¶ 523.12 (15th ed.1996)). 7
Before
In re Geiger,
First Circuit law held that § 523(a)(6)’s willful element required a showing that the act causing the injury was an intentional aсt.
See Printy,
The malice element, however, did include intent to cause the injury, albeit not “ ‘specific intent to injure.’ ”
See Printy,
b. In re Geiger and “Willful”
In re Geiger
establishes that to satisfy the “willful” element of § 523(a)(6) a creditor must show that there was “a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury.”
In re Geiger,
— U.S. at-,
c. Willfulness and Malice After In re Geiger
i. Willful
In re Geiger has worked significant changes in the law. It overrules decisions holding that the discharge exception’s willfulness element could be satisfied without proving that the debtor acted with the intent to cause the injury. 10 The requirement that the debtor act with the intent to cause injury necessitates different proof, more demanding proof than many courts previously required, of creditors seeking to establish this element of § 523(a)(6) nondischargeability. 11
Although the Supreme Court did not state that § 523(a)(6)’s willfulness element includes acts intentionally done and which are known by the actor to be “substantially certain to cause injury,” I conclude, in accord with most post-1% re Geiger § 523(a)(6) decisions, 12 that obligations arising from such conduct remain within the discharge exception.
All consequences which the actor desires to bring about are intended, as the word is used in this Restatement. Intent is not, however, limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result. As the probability that the consequences will follow decreases, and becomes less than substantial certainty, the actor’s conduct loses the character of intent, and becomes mere recklessness.... As the probability decreases further, and amounts only to a risk that the result will follow, it becomes ordinary negligence.... All three have their important place in the law of torts, but the liability attached to them will differ.
Id. cmt. b. The first illustration offers practical guidance as to how this standard might factually аppear:
A throws a bomb into B’s office for the purpose of killing B. A knows that C, B’s stenographer, is in the office. A has no desire to injure C, but knows that his act is substantially certain to do so. C is injured by the explosion. A is subject to liability to C for an intentional tort.
Id. illus. 1.
The actor’s subjective knowledge that the injury is certain or substantially certain to occur distinguishes this articulation of willful from articulations of implied malice that turn on whether the actor should objectively appreciate the danger his conduct creates. Thus, a debtor who intentionally acts in a manner he knows, or is substantially certain, will harm another may be considered to have intended the harm and, therefore, to have acted willfully within the meaning of § 523(a)(6). 13
ii Malice
Having discerned what “willful” means after
In re Geiger,
I must consider the post-Ira
re Geiger
content of § 523(a)(6) “malice.” Before
In re Geiger
most § 523(a)(6) litigants battled over the question of whether the debtor had acted with malice when the creditor suffered loss.
See
Tabb,
supra,
at 78-89.
14
Though the terms might share ele-
Establishing malice can no longer rest upon demonstrating intent to cause injury as it did in this Circuit prior tó In re Geiger. Malice must add something to the § 523(a)(6) equation. But what?
The question is not answered by the two Eighth Circuit opinions from which the Supreme Court appeal was taken. Initially, the circuit’s panel determined that the debtor’s actions were undertaken without an intention to injure the creditor and, therefore, lacked malice.
Geiger v. Kawaauhau (In re Geiger),
Earlier cases from the Eighth and other circuits, declaring that a wrongful act was malicious if it were “targeted at the creditor,” suffer the same fate as other
pre-In re Geiger
malice formulations: The content they ascribe to the statute’s malice element is now subsumed in the
In re Geiger
definition of willfulness.
See Reynolds-Marshall,
Section 523(a)(6) malice can have meaning, meaning that adds something to the statute’s willfulness requirement: A showing of malice requires a showing that the debtor’s willful, injurious conduct was undertaken without just cause or excuse. This conclusion finds support in the
pre-In re Geiger
case law. In a part of
Tinker
that the
In re Geiger
Court left undisturbеd, legal malice is defined as “a wrongful act, done intentionally, without just cause or excuse.”
Tinker,
So defined, the statute’s malice requirement will withdraw from the discharge exception obligations arising from acts done knowing that injury is a substantially certain consequence, but done for reasons that justify or excuse the act.
See e.g., In re Cerar,
In re Geiger’s definition of willful, however, does play havoc with the long-accepted concept of “implied malice” under § 523(a)(6). That is so because, historically, implied malice has been a concept encompassing much of what is now pertinent only to the issue of willfulness. 21
2. State Court Litigation and the § 528(a)(6) Issues.
a. The Complaint
The state court’s default order translated McAlister’s complaint’s allegations into findings of fact.
See McAlister v. Slosberg,
Thus, the default established that Slosberg owned McAlister a duty, that he breached his duty, and that damages resulted. With allegations phrased in the alternative, it did not finally establish that Slosberg acted willfully within the meaning of § 523(a)(6). Similarly,
b. The Jury Determination: Compensatory Damages
The trial judge instructed the jury that to find for McAlister on the professional negligence claim it must conclude that Slosberg’s negligence was the proximate cause of McAl-ister’s claimed injuries — lost wages and emotional distress — by a “fair preponderance of the evidence.” The judge further instructed that Slosberg had conceded his negligence. Even if given preclusive force, the jury’s verdict awarding McAlister compensatory damages was, at most, a determination that Slosberg’s negligence proximately caused compensable injury.
c. The Jury Determination: Punitive Damages
To award McAlister punitive damages, the jury had to conclude that Slosberg acted with malice, as that term is defined under Maine law.
See McAlister,
The trial judge instructed the jury it could award punitive damages only if it found “that Mr. McAlister has proven by clear and convincing evidence that Mr. Slosberg acted with malice.” The court defined malice as conduct arising out of “ill-will” towards McAlister or “deliberate conduct which, while motivated by something other than ill-will toward any particular person, is nevertheless so outrageous that malice toward a person injured as a result of the conduct can be implied.” “To meet the standard of implied malice,” it elaborated, “the conduct at issue must be such that it would almost certainly result in injury to the plaintiff, in this ease Mr. McAlister, or to other persons.” 22 The court included in its charge the instruction that the jury could “consider only the aggravating and mitigating facts presented by the evidence including the nature and quality of the outrageousness of the defendant’s conduct.”
The trial court articulated the standard for punitive damаges set forth by the Maine’s highest court in
Tuttle,
The Tuttle charge simply did not require the jury to find that Slosberg acted with the intent to cause McAlister injury. It is truе that the jury had to conclude that Slosberg’s actions were intentional. But the jury did not have to conclude that Slosberg, subjectively, was certain or substantially certain that injury to McAlister would result. It could have concluded only that the conduct was so outrageous that, from an objective standpoint, injury was highly likely to result. What is more, there was no finding that Slosberg acted without just cause or excuse.
Thus, the state court judgment determined neither willfulness nor maliciousness within the meaning of § 523(a)(6).
Because the issues are not identical, preclusion is not appropriate.
See e.g., Gillman,
C. Preclusion and McAlister’s § 523(a)(4.) Claim
I can dispense of McAlister’s underdeveloped § 523(a)(4) argument with greater dispatch. As relevant to his preclusion claim, McAlister contends that Slosberg’s failure to honor the jury determination that Slosberg must repay the $3800 he pаid toward Slosberg’s work on the paternity appeal and his noncompliance with the Board of Bar of Overseers’ fee arbitration award “constitutes fraud or defalcation while [Slosberg] was acting in a fiduciary capacity for [McAlister].” First, noncompliance with a prior final judgment is neither grounds for preclusion nor
prima facie
evidence of fraud and defalcation. I also note that the jury was not instructed on any theories founded on the parties’ fiduciary relationship. Even had they been, their verdict could have been based on other theories McAlister had pleaded. Issues pertinent to McAlister’s § 523(a)(4) claim were not “necessarily determined” on the way to judgment. Moreover, any argument based on orders promulgated by the Board of Bar Overseers cannot carry the day; the summary judgment rec
CONCLUSION
For the reasons set forth above, the plaintiffs motion for summary judgment is denied.
Notes
. This memorandum sets forth my conclusions of law in accordanсe with Fed.R.Civ.P. 52 and Fed. R.Bankr.P. 7052. Unless otherwise indicated, all citations to statutory sections are to the Bankruptcy Reform Act of 1978 ("Bankruptcy Code” or "Code”), as amended, 11 U.S.C. § 101, et seq.
. After filing bankruptcy Slosberg was subject to disciplinary action by the Maine Board of Overseers of the Bar. As a result of fee arbitration in that venue Slosberg was ordered to repay McAl-ister the $3510 retainer. While McAlister suggests that this determination has preclusive effect vis-a-vis his § 523(a)(4) claim he has not included the Board's order or record in his summary judgment papers.
. Because dischargeability questions are unique to bankruptcy and their resolution depends on criteria established by the Bankruptcy Code, pri- or state court judgments will never relate to the same "cause of action” so as to present the potential for claim preclusion.
The Supreme Court has explained the distinctions between claim and issue preclusion:
[W]e use the term "claim preclusiоn” to refer to "res judicata” in a narrow sense, i.e., the preclusive effect of a judgment in foreclosing litigation of matters that should have been raised in an earlier suit. In contrast, we use the term "issue preclusion” to refer to the effect of a judgment in foreclosing relitigation of a matter that has been litigated and decided.
Marrese v. American Academy of Orthopaedic Surgeons,
Claim preclusion comprehends matters that were "or might have been” litigated.
See Dow v. Adams,
Although some elements of state court claims may be identical with elements of discharge exceptions
(e.g.,
common law fraud and § 523(a)(2)(A)),
see Field v. Mans,
. The
Forbes
courts analysis is befuddling. Although it skirts the issue, it describes it as one of “collateral estoppel,”
id.,
and refers to earlier precedent abandoning mutuality as a requirement for issue preclusion.
See id.; Hossler v. Barry,
. Under Maine law, default judgments operate for claim preclusion purposes.
See Lundborg,
As to default determinations and issue preclusion, there is no definitive answer in Maine or in the First Circuit. Indications in Maine are that
issue
preclusion may not properly flow from default judgments.
See Larochelle
v.
Hodsdon,
. The standard for issue preclusion includes the requirement that the issue on which preclusion is sought has been actually litigated.
See Sargent,
Issues determined by default have not been litigated on the merits. But, as was the case in McAlister’s state court suit against Slosberg, default may follow joinder of the issues and may precede evidentiary hearings in which the defaulted party participates. In situations where a party is defaulted after answering the complaint
(e.g.,
for failure to obey discovery orders, failure to attend trial), the defaulted party might be seen as having forfeited its opportunity to litigate and, therefore, issue preclusion should obtain.
See Gillman v. Department of Human Serv.,
. The Printy court went on to conclude that, "whatever standard [was] applied,” knowingly taking advantage of a securities firm’s electronic crediting error that inflated the borrowing limit of the debtor’s trust account "translates easily into an intent to willfully and maliciously cause harm.’’ Id. at 859-60.
.
In re
Geiger's holding seemed primarily aimed at overruling interpretations of § 523(a)(6) that drew debts for "recklessly or negligently inflicted injuries” within the discharge exception.
Id.
at 978. The
In re Geiger
Court took pains to narrow the holding of
Tinker v. Colwell,
. The Court continued, ”[i]ntentional torts generally require that the actor intend ‘the consequences of an act,' not simply ‘the act itself.’ ” Id. (quoting Restatement (Second) of Torts § 8A, comment a, p. 15 (1964)).
.
See e.g., Printy,
. Since the
In re Geiger
decision, a number of reported decisions have been rendered declaring that the plaintiff had failed to prove the necessary intent to harm required to satisfy § 523(a)(6)’s willfulness element.
See Salem Bend Condominium Ass'n v. Bullock-Williams (In re Bullock-Williams),
. See State of Texas v. Walker,
. The First Circuit has decided one § 523(a)(6) case since
In re Geiger.
In
Roumeliotis v. Popa (In re Popa),
. One cannot say that
In re Geiger
will change the result in cases such as
In re Popa,
However,
In re Geiger
certainly will change the analysis. The First Circuit Bankruptcy Appellate Panel, whose
In re Popa
decision pre-dated
In re Geiger,
premised its conclusion that the debtor’s obligation was dischargeable on the lower court's finding that the debtor did not intend to harm the creditor. However, it did so because such a finding compelled the conclusion that the injury was not inflicted with "malice” under the standard articulated in
Printy. See Roumeliotis
. Collapsing the two previously distinct elements is an understandable temptation given the difficulty generated by In re Geiger's remodeling of "willful.” Witness the latest revisions to Collier. See 4 Collier on Bankruptcy ¶ 523.12 (15th ed. rev. 1998). Discussing the In re Geiger redefinition of willful, the treatise forgoes any independent discussion of the meaning of malice, editing out its previous discussion of that term, see id., relied upon in Printy and in other circuits.
. The "targeted at the creditor” standard, announced in In re Long, was itself drawn from Restatement § 8A. See id.
I do not see how, if the malice element is to have independent significance, continuing to employ a "targeted at the creditor” definition has utility.
Iln re Dziuk,
which takes the other view, is a case in point. The
In re Dziuk
debtor set fire to his icehouse to prove to his girlfriend that he loved her more than he loved it. At the time, the icehouse was sitting in his friend's driveway, within a spark's flight to the friend’s home. In an action brought by the friend’s insurer, the court concluded that the debtor’s acts were not willful (in the
In re Geiger
sense) because he intended to torch the icehouse and did not intend to ignite his friend’s residence.
See
. Indeed, it is not clear that so-called "express malice” is relevant to the post — In re Geiger § 523(a)(6) malice inquiry.
. The law follows a tricky path in this territory. A century ago, soon to be appointed Supreme Court Justice, Oliver Wendell Holmes, Jr., explained the boundaries between legal and moral malice. In a passage from The Path of Law, he reflected:
It is enough to take malice as it is used in the law of civil liability for wrongs — what we lawyers call the law of torts — to show you that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. Three hundred years ago a parson preached a sermon and told a story out of Fox’s Book of Martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. It happened that Fox was wrong. Thе man was alive and chanced to hear the sermon, and thereupon he sued the parson. Chief Justice Wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. He took malice in the moral sense, as importing a malevolent motive. But nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. In stating the case in pleading, we still should call the defendant’s conduct malicious; but, in my opinion at least, the word, means nothing about motives, or even about the defendant’s attitude toward the future, but only signifies that the tendency of his conduct under the known circumstances was very plainly to cause the plaintiff temporal harm.
Oliver Wendell Holmes, Jr.,
The Path of Law, in The Essential Holmes
160, 164-65 (Richard A. Posner ed., 1992)
See also Tinker,
.
In re Geiger
and its implication for § 523(a)(6) malice brings this court full circle, back to its determination in
In re Pineau.
In that case, the judgment of dischargeability of a debt arising from a violation of copyright law arose from my determination under the malice prong of § 523(a)(6) that, while the act was wrongful, it was justified and excused by the course of dealings between the debtor and the copyright holder.
See
. Quoting
Collier,
the
Printy
court defined malice as "wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill will."
Printy,
.Until
In re Geiger
this court considered that “implied malice” under § 523(a)(6) could "operate[ ] straightforwardly and fairly without incorporating a subjective 'targeting the creditor’ requirement” if the record demonstrated that the " 'debtor acted deliberately and intentionally, in knowing disregard of the creditor's rights, without cause or excuse.’ ”
In re Leahy,
. The court further instructed the jury that even if they found malice, the question still remained as to whether punitive damages should be awarded. Taking the judge’s malice instructions as a whole, Slosberg's contention that the judge never put the issue of malice before the jury is simply not sustainable. Slosberg’s contention is all the more disingenuous in light of the footnote appended to the trial court’s order denying Slos-berg’s post-trial motions: “It should be noted that liability for punitive damages was not established by default. At the trial on damages the jury was instructed, over plaintiff’s objection, that he must prove 'malice' by the burden of clear and convincing evidence before such an award could be made.”
. Before
In re Geiger,
a plaintiff who established a right to punitive damages under the
Tuttle
formulation of malice could invoke collateral es-toppel to satisfy the malicious element of § 523(a)(6).
See Reynolds-Marshall,
. After hinting at its willingness to reconsider punitive damages in an earlier case,
see Hanover Ins. Co. v. Hayward,
. While Tuttle was a marked constriction of the availability of punitive damages, its standard, though articulated in consistent terms, has slipped with time. Conduct arguably no more than reckless and not tangibly outrageous has qualified аs malicious. The trial court’s order denying Slosberg’s post-trial motion demonstrates my point. The court concluded that the awards for legal fees and costs (uncontested by Slosberg), lost wages, and mental distress were supported by the evidence. While describing the award of punitives damages as "a closer question,” the court stated that the evidence went beyond negligence:
After [Slosberg] became aware that the appeal had been dismissed, on at least several occasions over a period of months, he affirmatively deceived [McAlister] concerning the status of the case. This action involved conduct both intentional and deceitful. It was a proper factual predicate upon which a jury could find "malice".
Other published decisions apply the state law malice standard more flexibly than
Tuttle
would seem to require.
See e.g., Lehouillier v. East Coast Steel, Inc.,
. See supra note 2.