Tn Farmers Mutual Ins. v. Inman ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
FILED
AT KNOXVILLE March 10, 1999
Cecil Crowson, Jr.
Appellate C ourt
Clerk
TENNESSEE FARMERS MUTUAL ) C/A NO. 03A01-9808-CV-00246
INSURANCE COMPANY, )
) CAM PBELL CIRCU IT
Plaintiff-Appellee, )
) HON. CONRAD TROUTMAN,
v. ) JUDGE
)
JAMES INMAN and VEANNA )
INMAN, )
)
Defendants, and )
)
NELL Y BUZ IASHV ILI, ) AFFIRMED
) AND
Intervening Petitioner-A ppellant. ) REMANDED
JOHN T. JOHNSON, JR., and AMANDA M. BELEW, KRAMER, RAYSON,
LEAKE, ROD GERS & M ORGAN , Knoxville, for Plaintiff-Appellee.
JERROLD L. BECKER, ARTHUR F. KNIGHT, III, and SAMUEL W. BROWN,
BECKER, THO MFORD E, BROWN & KNIGHT, P.C., Knoxville, for Intervening
Petitioner-A ppellant.
O P I N IO N
Franks, J.
In this declaratory judgment action, the Trial Judge held that the
Inmans’ policy of insurance did not provide coverage for a wrongful death action,
because the exclusionary clause for intentional acts applied. The intervenor has
appealed.
The defendants sought coverage for the civil action filed against them
by appellant Nelly Buziashvili. The suit w as for the wrong ful death of Buz iashvili’s
husband.
On M arch 10, 19 97, the Trial C ourt granted Buziashv ili’s Petition to
Intervene. She had previously secured a judgment against the Inmans in the United
States District Court for the Eastern District of Tennessee, but the Trial Judge, as
previously no ted, found there was no cover age for the judgmen t.
This case was tried by the Judge sitting without a jury, and our review of
findings of fact by the Trial Court is de novo upon the record accompanied by a
presumption of correctness of the findings, unless the preponderance of the evidence
is otherwise. T.R.A.P. Rule 13(d). Our review of questions of law is de novo with no
presum ption o f correc tness. Hawks v. City of Westmoreland, 960 S.W.2d 10 (Tenn.
1997).
The appellant contends the Trial Court erred in failing to give proper
preclusive effect to the District Court action. She argues that principles of collateral
estoppel pr evented th e Trial Co urt from fin ding that Jam es Inman acted intentio nally
in causing her husband’s death. This argument is based upon a portion of the District
Court’s verdict finding that the Inmans had acted negligently. It does not appear that
this theory was raised below, althou gh the record contains a letter from appellant’s
trial counsel to the Trial Court, the letter merely mentions that the appellee had
objected to the admission of a statement by James Inm an that he did not intend to f ire
the gun which killed the victim. It appears that the appellee argued that Inman was
collaterally estopped from denying the act was intentional, based upon a different
portion of the v erdict. T he obje ction w as appa rently ove rruled, a nd wa s not ap pealed .
The record does not reveal that the appellant made the argument below that she is now
making concerning collateral estoppel. In fact, in that same letter, her counsel argued
that the District Court’s verdict was inconsistent, and thus had no preclusive effect on
the issue of intent. Moreover, the jury in the civil case specifically found that James
Inman intentionally used force against the victim, which caused his death.
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Appellant next argues that the Trial Court’s conclusions are not
supported by the record. The Trial Court held that the clause excluding coverage for
intentionally inflicting injuries applied. The Trial Court noted that “the deceased was
struck at least twelve times before he was shot, and that either could have been
suffici ent to ha ve cau sed his d eath.”
In reaching its conclusion, the Trial Judge considered several items
which were stipulated or considered without objection (with the exception of the
aforementioned statement of James In man, which w as not appealed). The Trial Court
considered the policy itself, stipulations of counsel, arguments of counsel, the
pleadings f rom both civil and crim inal cases, an d the judgm ents and jur y forms in
those cases.
The clause at issue states that the po licy does not cover “[b]odily injury
or property damage ex pected or intended by an insu red person.” The S upreme Co urt
has adop ted a two-p art approac h to determ ine if an inten ded or ex pected acts
exclusion applies. “[I]t must be established that the insured intended the act and also
intended or expected that injury would result.” Tennessee Farmers Mut. Ins. Co. V.
Evans, 814 S.W.2d 49, 55 (Tenn. 1991). “The intent itself may be actual or inferred
from the nature of the act and the accompanying reasonable foreseeability of harm.”
Id. Moreover, “[i]t is immaterial that the actual harm was of a different character or
magnitude or nature than that intended.” Id.
The evidence in th is case does not prepo nderate against the Trial Co urt’s
conclusions. T.R.A .P. Rule 13(d). James Inm an was conv icted of voluntary
manslaughter and aggravated assault. Additionally, the jury in the civil action found
that he intentionally used force against the victim, which caused his death. As the
Trial Judge observed, there was evidence that James Inman struck the victim at least
twelve times before shooting him.
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We affirm the judgment of the Trial Court in its declaration that the
insurance policy at issue does not cover appellant’s judgment against the policy
holder.
The cost of the appeal is assessed to appellant, and the cause remanded
to the Trial C ourt.
__________________________
Herschel P. Franks, J.
CONCUR:
___________________________
Houston M. Godd ard, P.J.
___________________________
Don T. McM urray, J.
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