Dissenting:

I was invited to join this panel after the death of Judge Anderson. He was a member of the original panel and in that capacity prepared for oral argument, heard the arguments of counsel, participated in the post-argument conference of the panel, and drafted a proposed disposition, all prior to his death. The proposed disposition of Judge Anderson is contrary to the judgment of the majority.

I exercise independent judgment as a new member of this panel. I have read the briefs carefully and have listened to the tape recordings of the oral argument. I find much to commend the result reached by the majority. It is a decision that applies common sense to an inartfully drafted statute. However, I must dissent. Judge Anderson has stated the reasons in his draft disposition which I herewith adopt in relevant part.

After reviewing the facts and stating the appropriate standard of review, Judge Anderson noted the failure of the bankruptcy courts to apply the literal wording of 11 U.S.C. § 523 (a)(9). He then concluded, “with all due respect for my bankruptcy colleagues, these decisions are not persuasive.” He thereupon stated his reasons:

“I.

“The reasoning behind these decisions has been premised on presumed congressional intent. This rationale was probably best exemplified in one of the earlier cases. In In re Thomas, the court acknowledged that the literal language of § 523(a)(9) requires a judgment. The court held, ‘[a]s worded, the legislation gives quick-thinking drunks or their attorneys an out. If they can race to the U.S. Bankruptcy Court before the injured can obtain a state court judgment, the intoxicated debtor can still prevail.’ 51 B.R. at 188-189. The court went on to note that this ‘race’ under the new statute gives the debtor a clear advantage since it takes ‘considerably longer to obtain a judgment than it does to file bankruptcy.’ Id. at 189. The court concluded that Congress could not have intended this result.

“The same conclusion was reached in In re Gamer. Likewise acknowledging that the literal language of the statute required a judgment or consent decree, the Gamer court expressed even stronger condemnation of a literal interpretation of § 523(a)(9):

54 B.R. at 76-77.

“Later cases have generally either cited or alluded to these earlier authorities for the proposition that a claimant need not reduce his claim to a judgment or consent decree before the debtor files in bankruptcy. See, e.g., In re Leach, 63 B.R. at 727 (‘The appellant has not cited case authority, nor is this court aware of any, which supports the proposition that § 523(a)(9) is only available to claimants who reduce their claims to judgment or consent decree before the debtor files in bankruptcy’); In re Carney, 68 B.R. at 656. (‘The absence of a judgment prior to bankruptcy has been deemed immaterial under § 523(a)(9) of the Code’).

“In a more recent case, In re Jackson, 77 B.R. 120 (ND Ohio 1987), the bankruptcy *1425 court was again confronted with the same issue. It faced the dilemma of recognizing the literal wording of the statute on the one hand, with the case law refuting that literal wording on the other: ‘Although § 523(a)(9) clearly describes the subject debt as one arising from a judgment or consent decree, some courts have ignored this requirement, or at least, have taken a very relaxed interpretation of this requirement.’ 77 B.R. at 122 .

“The Jackson court, seemingly feeling compelled to either follow case law precedent or to distinguish its case from that of the others, chose the latter alternative:

77 B.R. at 123 . Ultimately, the court dis-crepantly held that the failure of the creditor to have commenced an underlying civil action against the debtor prior to the debt- or’s petition in bankruptcy precluded determination that the debt was nondischargeable under § 523(a)(9).

“Here, the BAP concluded, and [I] think appropriately, that the plain meaning of § 523(a)(9) was ‘very clear.’ 73 B.R. at 653. Indeed, this conclusion has been substantiated by the very cases that have disregarded the literal wording of the statute. While the BAP opinion did not delve into an intricate analysis of legislative history to determine whether congressional intent was to the contrary, neither have the cases that have detoured from what may be considered the plain meaning of the statute.

“Furthermore, it is a widely established precept of bankruptcy law that in keeping with its fresh start objective, exceptions to dischargeability are to be narrowly construed. As was stated by a leading commentator: ‘In determining whether a particular debt falls within one of the exceptions of section 523, the statute should be strictly construed against the objecting creditor and liberally in favor of the debtor. Any other construction would be inconsistent with the liberal spirit that has always pervaded the entire bankruptcy system.’ 3 Collier on Bankruptcy, 11523.05A at 523-16 and 523-17 (15th ed. 1987). See also In re Rahm, 641 F.2d 755, 756-57 (9th Cir.), cert. den. sub nom., 454 U.S. 860 , 102 S.Ct. 313 , 70 L.Ed.2d 157 (1981); In re Hunter, 780 F.2d 1577, 1579 (11th Cir.1986); In re Long, 774 F.2d 875, 879 (8th Cir.1985); In re Kimzey, 761 F.2d 421 , 424 (7th Cir.1985).

“The analysis of the courts below not only ignores this fundamental canon of section 523 interpretation, it runs counter to it. See, e.g., In re Richards, 59 B.R. at 543 (‘The court ... determines a broad construction of § 523(a)(9) is warranted ...’); In re Pahule, 78 B.R. 210, 211 (E.D.Wis. 1987) (‘In construing ... § 523(a)(9), bankruptcy courts have given broad application to its provisions ...’); In re Tuzzolino, 70 B.R. at 376 (court adopts Richards ’ refusal ‘to strictly interpret Code § 523(a)(9)’); In re Leach, 63 B.R. at 726 (‘Other courts have similarly given a broad construction to § 523(a)(9) ...’). [I] find no basis for altering the Code’s fresh start policy merely because the debtor happens also to have been involved in a drunk driving incident, particularly since that policy continues to adhere to those debtors whose conduct causes ‘wilful and malicious injury.’ See In re Rahm, 641 F.2d at 756 -57 (§ 523(a)(6) exception to discharge strictly construed against the creditor and in favor of debtor so as to effectuate congressional policy of permitting debtor a fresh start); see also In re Long, 774 F.2d at 882 ; In re Kimzey, 761 F.2d at 424.

“The plain meaning of § 523(a)(9) is further bolstered by 11 U.S.C. § 727 (b). Pursuant to § 727(b), the debtor may be discharged ‘[ejxcept as provided in [ 11 U.S.C. § 523 ] ... from all debts that arose before the date of the order for relief.’ Section 301 provides that the filing of a petition constitutes an ‘order for relief.’ The status *1426 of the claim at the date of the order for relief, therefore, determines whether or not the claim is dischargeable under any subsection of § 523(a). Except as specifically provided for in § 523(a), all claims that arose prior to the commencement of the case are discharged.

“Applying the facts to the law, on December 12, 1985, the date of Hudson’s order for relief, appellants had only a claim against Hudson, not a judgment or consent decree. Having failed to obtain either a judgment or consent decree prior to the filing of Hudson’s petition, appellants failed to come within the clear purview of § 523(a)(9). Accordingly, [I am] compelled to find their claim dischargeable pursuant to § 727(b).

“[My] conclusion that § 523(a)(9) means what it says does not leave the creditors of drunk-driving debtors entirely without a remedy. A creditor who files a timely complaint under § 523(a)(6) [footnote omitted] may still obtain a dischargeability determination against the debtor for willful and malicious injury arising out of a drunk-driving incident. [Footnote omitted] We have previously determined that § 523(a)(9) was intended as a clarification of § 523(a)(6). In In re Adams, 761 F.2d 1422, 1427 (9th Cir.1985), we held that ‘driving while intoxicated constitutes conduct sufficiently intentional to support a finding of willfulness and malice under § 523(a)(6).’ Accord, In re Ray, 51 B.R. 236, 240 (Bankr. 9th Cir.1985) (‘[A] driver who [voluntarily] ingests an intoxicating substance should be subject to a claim of nondischargeability under 11 U.S.C. § 523 (a)(6)’).”

Judge Anderson thereupon conducted an exhaustive examination of the legislative history of section 523(a)(9). He concluded as follows:

“As we previously stated, the plain language of a statute should be regarded as conclusive absent a ‘clearly expressed legislative intention' to the contrary. There is nothing in the legislative history of 11 U.S. C. § 523(a)(9) which reveals that Congress intended the § 523(a)(9) exception to discharge to apply to post-petition judgments. Indeed, all discussion in the legislative history is specifically directed at persons or families who have been the victims of drunk drivers losing their judgments by reason of the debtor’s subsequent bankruptcy petition. If Congress had wished to extend the coverage of § 523(a)(9) to encompass post-petition judgments, it could have easily made clear its intention to do so. As the Supreme Court has observed:

United States v. Locke, 471 U.S. 84, 96 , 105 S.Ct. 1785, 1793 , 85 L.Ed.2d 64 (1985). [I] decline the invitation, evidently accepted by the lower courts, to assume a legislative role and rewrite the statute.

“It has also been argued that a literal interpretation of the plain language of the statute would render § 523(a)(9) meaningless. [I] find this argument unpersuasive. The fallacy of this argument is premised on the supposition that every potential drunk driving defendant, assuming insolvent, will flee to the bankruptcy court prior to the entry of an unfavorable judgment and have the creditor’s claim discharged. This beguiling assumption ignores the fact that defendants may have other interests or concerns which would mitigate against filing a petition in bankruptcy. Indeed, based upon the dire consequence envisioned by those who would view a literal reading of § 523(a)(9) as rendering the statute nugatory, one would expect never to see a judgment entered prior to the commencement of the debtor’s bankruptcy. Such is not the case. The statute on the contrary appears to be functioning as contemplated by Congress. See, e.g., In the Matter of Brunson, 82 B.R. 634 (Bankr.S.D.Ga.1988) (prepetition default judgment nondischargeable); In re Bennett, 80 B.R. 800 (Bankr.E.D.Va.1988) (prepetition default judgment nondischargeable); In re Christiansen, 80 B.R. 481 (W.D.Mo.1987) *1427 (prepetition judgment obtained but remanded to bankruptcy court for causation determination); In re Keating, 80 B.R. 115 (Bankr.E.D.Wis.1987) (prepetition default judgment nondischargeable); In re Pahule, 78 B.R. 210 (E.D.Wis.1987) (prepetition judgment nondischargeable); In re Gomez, 70 B.R. 96 (Bankr.S.D.Fla.1987) (prepetition judgment nondischargeable); In re Lewis, 69 B.R. 600 (Bankr.S.D.Fla.1987) (prepetition judgment nondischargeable); Dougherty v. Brackett, 51 B.R. 987 (Bankr.D.Color.1985) (prepetition guilty plea, restitution order, and promissory note constitute non-dischargeable consent decree); In re Coupe, 51 B.R. 939 (Bankr.N.D.Ohio 1985) (prepetition judgment obtained but debt dischargeable due to insufficient evidence of intoxication); In re Cunningham, 48 B.R. 641 (Bankr.W.D.Tenn.1985) (prepetition judgment nondischargeable).

“That [my] interpretation of § 523(a)(9) could, at times, admittedly result in a ‘race’ to the courthouse does not alter [my] determination. Such a ‘race’ has always existed insofar as a Chapter 13 bankruptcy is concerned. In contrast to provisions involving Chapter 7 debtors, the language of 11 U.S. C. § 109(e) is drafted explicitly to require that a Chapter 13 debtor ‘owe[ ] ... debts’ on the date the petition is filed. However, while some debts must be owed, the debtor cannot owe debts in too large an amount and still expect to take advantage of the streamlined rehabilitative provisions provided in Chapter 13. The debtor must owe less than $100,000 in liquidated unsecured debts at the time the petition is filed. Thus, it is certainly incumbent upon a drunk driving debtor to ‘race’ to the courthouse and file a Chapter 13 petition before a liquidated debt arising from a tort judgment is created. [Footnote omitted].

“Moreover, a debtor and his counsel may have deep-seated feelings that the debtor has strong and meritorious defenses that would defeat the stigma of a DWI civil judgment. He would prefer to defend rather than ‘race’ to the courthouse and also incur the stigma of bankruptcy. To make such a choice would not be malpractice as suggested by the bankruptcy court in In re Ganzer, 54 B.R. at 76-77.

“[I am] aware that [my] application of the plain language of § 523(a)(9) may occasionally lead to objectionable consequences for those injured by the deplorable and irresponsible actions of drunk drivers. This, however, is not a sufficient basis for ignoring clear statutory language.

United States v. Locke, 471 U.S. at 95 , 105 S.Ct. at 1793 (citations omitted). Under the circumstances, we are obligated to apply the ‘to the extent that such debt arises from a judgment or consent decree’ language by its terms.

“II.

“Appellants also contend that a finding of nondischargeability of their claim is warranted on the basis of their April 24, 1986 answer to Hudson’s complaint of March 24, 1986 to determine dischargeability. While not specifically alluding to § 523(a)(6) in their answer, appellants contend that its reference to § 523(a)(9) and In re Adams sufficiently established that they were alternatively requesting a declaration of non-dischargeability under § 523(a)(6). [Footnote omitted].

“Whatever the merits of appellants’ contention that their answer to Hudson’s complaint adequately requested a determination of nondischargeability on the basis of § 523(a)(6), [I would] hold that they failed to do so in a timely fashion in accordance with the requirements of Bankr.R. 4007(c).

“11 U.S.C. § 523(c) requires creditors to take affirmative steps should they seek to except certain debts from discharge. *1428 Where debts which are of a type defined in subsections (2), (4), and (6) of § 523(a) are concerned, ‘[i]f the creditor does not act, the debt is discharged.’ H.R.Rep. No. 595, 95th Cong.2d Sess. 342, 365 reprinted, in 1978 U.S.Code Cong. & Admin.News 5787, 5963, 6321; see also In re Hill, 811 F.2d 484, 486 (9th Cir.1987). While Bankr.R. 4007(b) does not contain a time limit for the filing of an adversary complaint to determine the dischargeability of a debt specified in § 523(a)(9), Bankr.R. 4007(c) imposes a deadline for filing complaints to determine the dischargeability of a debt set out in § 523(a)(6). Rule 4007(c) mandates that such complaint must be filed within 60 days of the § 341(a) meeting of creditors or upon an extension date set by the court.

“Here, the deadline to file a complaint to determine dischargeability was April 7, 1986. Hudson filed his complaint to determine the dischargeability of appellants’ claim under § 523(a)(9) on March 24, 1986. Appellants subsequently filed an answer on April 24, 1986, within the time period allowed for an answer, see Bankr.R. 7012, but not within the time period for filing a complaint under § 523(c). While an answer may take the form of a complaint to determine dischargeability, see In re Thomas, 47 B.R. 27 (Bankr.S.D.Cal.1984), it does not excuse the 60-day limit for requesting relief under § 523(a)(2), (4), or (6). Furthermore, while the court has discretion to extend the 60-day filing period of Bankr.R. 4007(c), such discretion is only authorized if a motion seeking such relief is brought before the end of the original period. Bankr.R. 4007(c), 9006(b)(3). Here, appellants filed no such motion. Accordingly, [I believe that] appellants’ cause of action based upon § 523(a)(6) was appropriately dismissed for a failure to file a timely complaint.

“CONCLUSION

“[I would hold that] appellants are precluded from a nondischargeability determination of their claim by their failure to obtain a judgment against Hudson prior to his petition in Chapter 7 bankruptcy, and by their failure to file a timely request for relief within the deadline established by Bankr.R. 4007(c). The plain wording of 11 U.S.C. § 523 (a)(9), its legislative history, and other relevant portions of the Bankruptcy Code combine to persuade [me] that § 523(a)(9) is inapplicable where the party seeking relief has not obtained a judgment or consent decree prior to the initiation of bankruptcy proceedings by the debtor. Had appellants filed a timely request for relief under § 523(a)(6), they may have sustained the complaint for nondischargeability of their drunk driving claim. That they failed to do so is unfortunate. Filing deadlines, like statutes of limitations, by their very nature often operate harshly with respect to individuals irrespective of how justifiable or meritorious their particular claim may be.”

For all of the reasons stated by Judge ANDERSON, I respectfully dissent.