1 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 f or the Western

District of Texas.

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

PER CURIAM:

Def endant John W. Greenway appeals the district court's

partial reversal of the bankrup tcy court's order granting

Greenwa y'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 cour t's partial

aff irmance 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 b y John Greenway, crashed into

Plaintiffs vessel, causing a fatality a nd various injuries. The

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

Plaintiffs sued in state court, and a jury, finding that Greenway1 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 cause d 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 was sixty percent responsible for the accid ent, awarded the

Plaintiffs damages proportion al 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 persona l 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 provision s 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 t he 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 motor boats, and held § 523(a)(9)4 In the state court proceeding, the jury made no finding as to

Greenway's possible intoxication.

3 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 m eaning 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, subj ect to certain

exceptions. 11 U.S.C. § 727(b); C itizens 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. K ellogg v. United States (In re West Texas Marketing

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

--- U.S. ----,5 We note that "11 U.S.C. § 523(a)(9) was enacted without any

reported legislative history." T homas 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. C ompare Radivoj v. Williams (In re Williams), 101 B.R.

356, 358 (Bankr.S.D.Fla.1989) aff'd, 11 1 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).

4 116 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 carr y their

ordinary, contemporary, common meaning." P ioneer Investment

Services v. Brunswick Ass ociates, 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 statu te than the

words by which the legislature undertook to give expression to its

wishes." G riffin 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." U

nited States v. Ron Pair Enterpri ses, 489 U.S. 235, 241,

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

Th e 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

v ehicle," as used in § 523(a)(9), includes motorboats. 5 Only if6 In addition, we note that Congress consistently refers to

motor vehicles and water craft separately in its enactments. S ee,

e.g., 31 U.S.C. § 1344(g)(1) (defining "passenger carrier" to mean

"passenger motor vehicle, aircraft, boa t, 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 requir ements for "motor

vehicles, vessels, and aircraft").

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

written. R on 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." W E BSTER ' S N INTH N EW C OLLEGIATE D ICTIONARY 775 (1986); s ee

also R ANDOM H OUSE C OLLEGE D IC TIONARY 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 C ourt has counseled that where the statutory language is7 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 with in the statute motorized

wheelchairs, golf carts, riding lawn mowers, and perhaps even

certain child ren'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. R on Pair

Enterprises, 489 U.S. at 241, 109 S.Ct. at 1030.

8 Our conclusion is also supported by t he fact that we are

bound to construe the exceptions contained in § 523 of the

Bankruptcy Code narrowly and in favor of the debtor. S ee Citizens

Bank & Trust Co. v. Ca se (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 plain, "the sole function of the court is to enforce it according

to its terms." R on Pair Ente rprises, 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 S ee 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 Plaintif fs were collaterally

estopped from litigating whether Greenway's actio ns were willful7

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

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

p reclusive 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 prov ides that state proceedings

"shall have the same full faith and credit in every c ourt 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 pre clusion of the state in

which the judgment was rendered in order to determine the

judgment's preclusive effects. M arrese, 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 es toppel bars relitigation of

any ultimate issue of fact actually litigated and essential to the

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

S.W.2d 816, 818 (Tex.1984); s ee 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 in9 Pursu ant to Texas law, the jury was asked in "Question 9,"

"Was such negligence by John Greenway gross negligence?" The jury

answered, "No."

8 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." B onniwell, 663 S.W.2d at 818; see also Amica

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

(quoting Bonn iwell, 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 de termine 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 a ffected thereby." 9 Conscious indifference

is the salient element of gro ss negligence under Texas law. S ee

T ransportation 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." S ee Garner, 56 F.3d at 681 (listing cases). Comparing

Texas' standard for gross negligence with the language of §9

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

to find that Greenway acted w ith "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 w hether Greenway's actions were "willful and

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

neither of the exceptions at issue here disallows the discharge of

Greenway's debt in bankruptcy, we RENDER judgment in f avor of

Greenway.