In assessing the applicability of Code § 523(a)(6), some circuits have essentially collapsed the terms “willful” and “malicious,” applying a unitary test. See, e.g., In re McClendon, 765 F.3d 501 (5th Cir. 2014) (applying the unitary standard and “defining a willful and malicious injury as one where there is either an objective substantial certainty of harm or a subjective motive to cause harm”). Other circuits utilize a two-pronged approach, where “willful” and “malicious” remain separate elements for the courts to review. Today, the present court explicitly adopted the two-pronged test.
Definition of “willful” injury for purpose of Code § 523(a)(6):
A “willful” injury, for purposes of § 523(a)(6), requires “actual intent to cause injury,” not merely a deliberate or intentional act that leads to injury. Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). In holding that a debtor must have “actual intent to cause injury” to have acted willfully, Geiger left unresolved how to measure that intent. Some circuits have resolved the question by taking a broad approach, utilizing both objective and subjective tests. Under that standard, a debtor acts willfully where his actions were objectively substantially certain to cause harm or, alternatively, where the debtor had a subjective motive to cause harm. This circuit, on the other hand, utilizes only a subjective standard, asking whether the debtor himself was motivated by a desire to inflict injury. See, e.g., In re Markowitz, 190 F.3d 455 (6th Cir. 1999) (adopting the subjective approach, in which a debt is nondischargeable under § 523(a)(6) only if the debtor intended to cause harm or knew that harm was a substantially certain consequence of his or her behavior).
Definition of “malicious” injury for purpose of Code § 523(a)(6):
Wheeler v. Laudani, 783 F.2d 610 (6th Cir. 1986) defined “malicious,” for purposes of § 523(a)(6), to mean “in conscious disregard of one’s duties or without just cause or excuse.”
In re Berge, 953 F.3d 907 (6th Cir., March 27, 2020)