  |
  |
  |
    
  
   |
 | |||
|
|
|
|
| |||
of willful infringement that [debtors] had actually ordered the copying themselves. As principals in the company, [debtors] could be held liable for infringement simply for failing to prevent copyright infringement. . . . [T]he jury in the District Court Action could have found that the [debtors] were liable for copyright infringement because they failed in their supervisory role, that their failure to supervise was reckless, and therefore that the infringement was willful. Such a scenario would dictate that the injury was not a 'willful injury' under S 523(a)(6), even though it was 'willful' for purposes of the copyright violation. . . . [T]he malicious injury requirement of S 523(a)(6) must be determined separately from the willful injury requirement. . . . The Bankruptcy Court . . . made no rulings as to the 'malicious' prong of S 523(a)(6). . . . [On appeal,] the BAP . . . found that malice could be implied from willfulness. Although there may be some overlap between the test for 'willfulness' and the test for 'malice,' . . . the overlap does not mean that the Bankruptcy Court can ignore entirely the malice inquiry. . . . [A] genuine issue of material fact as to willfulness [remains]. [Also,] [o]n remand, the Bankruptcy Court should conduct a separate inquiry concerning malice.").
Melquiades v. Hill (In re Hill), 390 B.R. 407 (B.A.P. 10th Cir. 2008) (Failure of debtor's corporation to carry required worker's compensation insurance does not constitute willful and malicious injury when employee is seriously injured on the job. Hilliard v. Peel (In re Peel), 166 B.R. 735 (Bankr.
W.D. Okla. 1994), "arguably survives Geiger, since it defined 'injury' as the plaintiff's loss of his legal right to worker's compensation benefits, rather than his physical injury[,] [reasoning] that employers could reasonably foresee some physical injury to their employees, but still not intend for such injuries to occur. However, given that physical injury is reasonably foreseeable . . ., an employer's intentional failure to provide legally required insurance for such injuries would almost certainly result in an employee's financial injury in the event of such a mishap." But Peel did not survive Panalis v. Moore (In re Moore), 357 F.3d 1125 (10th Cir. 2004), which held that "a judgment for damages relating to physical injury does not satisfy S 523(a)(6) where the debtor's conduct consists of a failure to provide insurance rather than the cause of the physical injury itself.").
9. Agency, master-servant and imputed liability
H. 11 U.S.C. S 523(a)(7)
Richmond v. New Hampshire Supreme Court Committee on Professional Conduct, 542 F.3d 913 (1st Cir. 2008) (Costs assessed for attorney disciplinary proceedings are nondischargeable under S 523(a)(7). Under state court rules, "'[a]ll expenses incurred by the committee and by bar counsel in the investigation and enforcement of discipline . . . may, in whole or in part, be assessed to a disciplined attorney to the extent appropriate.' . . . Sanctions are 'not intended as a mode of inflicting punishment.' . . . Instead, they serve an important public function in that they 'protect the public, maintain public confidence in the bar, preserve the integrity of the legal profession, and to prevent [unprofessional] conduct in the future.' . . . [A]ttorney discipline proceedings are not criminal proceedings. . . . [T]hey are not civil or administrative either: they are 'special in character.' . . . . The discretionary nature of New Hampshire cost assessments strongly suggests that they should be viewed as penalties. . . . While a cost award might 'resemble' compensation for an actual loss, 'the context in which it is imposed [might] undermine[] that conclusion.' . . . [A] civil penalty may qualify as non-dischargeable if 'the particular penalty . . . serve[s] some 'punitive' or rehabilitative'
©2009 Keith M. Lundin
