1 Rule 10 (Court of Appeals). Memorandum Opinion . -- (b) The Court, with the

concurrence of all judges participating in the ca se, may affirm, reverse or modify the actions of the trial court by memorandum opinion when a formal opinion would have no prec edential value. When a case is decided by memora ndum opinion it shall be designated "MEMORANDUM OPINION," shall not be published, and shall not be cited or relied on for any reason in a subsequent unrelated case

. 

# FILED

September 29, 1997

Cecil Crowson, Jr
. App ellate C ou rt Clerk IN THE COURT OF APPEALS OF TENNESSEE WESTERN SECTION AT JACKSON

______________________________________________ TENNESSEE FARMERS MUTUAL The Honorable Joseph H. INSURANCE COMPANY, Walker, Judge Plaintiff, AFFIRMED AND R EMANDED Tipton Circuit 3828 Vs. C.A. No. 02A01-9702-CV-00037 THOMAS EDWARD TIPTON, J. Thomas Caldwell of Ripley For Defendant-Appellant Defend ant. Andrew H . Owens o f Memphis For Plaintiff-Appellee

___________________________________________________________________________ MEMORANDUM OPINION 1

___________________________________________________________________________ CRAWFORD, J. This is an insurance subrogation case involving the arson of an insured automobile. Defend ant-app ellant Th omas Tipto n appea ls the judg ment of the

trial cou rt finding him responsible for the arson of the automobile and liable to Tennessee Farmers Mutual
Insurance Compa

ny (Tenn essee Fa

rmers) f or damag es. On March 17, 1990, the automobile belonging to Tipton’s ex-wife was stolen and later fo und destr oyed by f ire. The automobile

had bee n award ed to Tipto n’s ex-w ife in proceedings incident to their divorce, with Tipton responsible for making the payments on the note and maintaining insurance on the vehicle. After pa ying the lienholder, Nissan Motor Acceptance Corporation, the balance due on the note, Tennessee Farmers, the insurer of the vehicle, filed suit against Tipton alleging that he committed arson by intentionally burning the vehicle. After a nonjury trial on November 6, 1996, the trial court enter ed judgment on November 13, 1997, for plaintiff, Tennessee Farmer s, in the sum of $6,076.00. Defendant has appealed, and the sole issue for review is whe ther the evidence preponderates a gainst the2

findings o f the tria

l court tha

t establis hed liabi lity on the p art of de fendant

. The tria l court’sfindings s et out in the judgment a

re as fo llows: Thomas Edward Tipton and Anita Tipton were divorced January, 1989, at which time she received the 1988 Nissan Sentra a utomobile, with Thoma s Edward Tipton being solely responsible for the indebtedness owing thereon as well as the insurance on the automobile. The title remained in the name of Thomas Edward Tipton, and was held by Nissan Motor Acceptance Corpora tion. On March 17, 1990, the vehicle was destroyed by fire

. The insurance company paid Nissan Motor Accepta nce Corporation, and subrogated to their rights to recover. The insurance company also paid for a rental, a nd it was stipulated that if the insuranc e compan

y is entitle d to reco ver in thiscause they should recover $6,076.00. The proo f establi shed that Anita Tipt

on went to

a club in rural Tipton county in the vehicle on the evening in question, that she parked the vehicle outside, and that it disappeared f rom the park ing lot. Ani

ta Tipton h ad a key

to the veh

icle, as did Thomas Tipton. Thomas Tipton was in the club that evening, but left and went home, earlier than Anita. Mr. Tipton admitted he knew that the vehicle was on the lot at the club that night. Anita Tipton, when she could not find the vehicle in the parking went to the home of Thomas Tipton and inquired where the vehicle was. Mr. Tipton indicated he did not know, but went with her back to the area looking for the vehicle

. They found the vehicle several hundred yar ds from the club, and it had been set on fire b y accel erant.

* * * Plaintiff established by a preponderance of the evide nce that the fire was incendiary in origin. The proof was that the f ire had been set by an accelera nt inside the vehicle. Plaintiff establish ed that the defendant had a n opportun

ity to set the fire. He was at the club in the early morning hours where the car was parke d on the lot. He had a key to the vehicle. The vehicle was driven a couple hundr ed yards from the club and set on fire. Plaintiff has established by a preponderance of the e vidence that the defendant had a motive to set the fire. The def endant was not in good financial condition. The vehicle was being driven by defenda nt’s ex- wife, with defen dant “be ing solely responsible for the indebtedness owing thereon as well as the insurance on the automobile.” When the car bur ned, the insurance paid the debt, and the defendant no longer was responsible for the debt or insurance payments. The c ar was not the subject of permanent theft by someone who wanted the car to use. It had been moved only a short distance and3 torched. The motive for the fire could be persona l against the driver, but the only evidence presented in that regar d was the defenda nt as the e

x-spouse was at a r

ural nigh t club in the

early morning hours at the same time as his ex-wife. The defenda nt also had a financial motive. The court finds that the plaintiff has carried the burde n of proof by a preponderance of the evidenc e.

* * * This Court has held that to successfully prove an allegation of arson, “an insura nce company must show by a preponderance of the evide nce (1) that the loss was due to a fire of incendiary origin, (2) that the insured had an opportunity to set the fire, and ( 3) that he had a motive to do so.” Alexander v. Tennessee Farmers Mut. Ins. Co. , 905 S.W.2d 177, 179 (Tenn. App. 1995) (citing McReynolds v. Cherokee Ins. Co. , 815 S.W.2d 208, 211 (Tenn. App. 1991)). Mr. Tipton does not dispute that the fire was intentionally set, but argues that
Tenness ee Farme

rs has not sufficie ntly shown

that he ha

d the motive

and oppor

tunity to commit the arson. In a civil case, proof of arson may be made by circumstantial evidence. “The rule as to admissibility of circumstantial evidence is liberal in such a case.” McReynolds v. Cherokee Ins. Co. , 815 S.W.2d 208, 211 (Tenn. App. 1991). This court has relied on the following discussio n of circ

umstantia l evidenc e in other

arson ca ses: When a party in a civil case relies upon circ umstantial evidence to make out his case, the facts and c ircumstances shown by th

e evidence and r

elied on t o sustain h

is theory must not only be consistent with that theory, but must also be inconsistent with any other reasonable theory. However, the y need not be so certain as to exclude all other ra tional theories. A prepon deranc e of such

circumst antial ev idence i s all that i s required in a civil case. And in civil cases a pre ponderance of evidence carries the burden of pr oof regardless of whether the evidence is direct or circumstantial. A well-conne cted train of circumstances may outweigh opposing direct testimony. Howeve r, in a ci vil action , circum stantial e vidence which is conflicting is for the trier of facts, governed by the usual r ules. McConkey v. Continental Ins. Co. , 713 S.W.2d 901, 904 (Tenn. App. 1984) (citations and internal quotations omitted). Since this case was tried by the trial court without a jury, we review the findings of fact of the trial court de novo upon the record, with a presumption of correctness. Unle ss the4

evidenc e preponderate s against the findin gs, we mus t affirm , absent e rror of law. T.R. A.P. 13(d). The trial judge as the trier of fact had the opportunity to observe the manner and demeanor of the witnesses and the weight, faith and cr edit accorded their testimony by the trial court is entitled to great weight in this Court. Mays v. Brighton Bank, 832 S.W.2d 347 (Tenn. A pp. 1992) ; Sisk v. Valley Forge Ins. Co. , 640 S.W.2d 844 (Tenn. App. 1982). Tipton contends that the evidence preponderates aga inst the findings of the trial court.
He asse rts that Te

nnessee Farmers did not pro ve that he committed

arson be cause it

failed to prove two of the three necessary e lements. Tipton concedes that the car was burned intentionally, but takes issue with the trial court’s findings that he had the motive and opportunity to commit arson. He argues that he had nothing to gain by committing arson because he must still provide his ex-wife with an automobile. He also argues tha t he was not having any financial troubles. Finally, he asserts that there is no proof that he wa s ever near the automobile during the time in question. As to the existence of a motive, Tennessee Farmers c ounters that the divorce decree speaks on ly about the specif

ic Nissan in questio n and that

there is n o proof th at Tipton m ust provide h is ex-wif e with ano ther aut

omobile. T ennesse e Farmer s assertsthat ther e is evidence that Tipton was not in good financial condition, including that he had been late on child support payments and property taxes. Further, the fact that his ex-wif e was found guilty of cruel and inhuman treatment in their divorce action could imply that there ar e bad feelings between them. As to the existence of opportunity, Tennessee Farmers points out that Tipton had a set of keys to the car and had “run into” his ex- wife at three different nightclubs on the night of the fire, including the club from which the automobile was stolen. Finally, Tennessee Farmers contends that Tipton was not a cre dible witness and that there is support for the trial court’s decision. Upon review of the proof in the record a nd according due deference to the trial court’s determin ation of c

redibilit y of the w itnesses, we find th at the evidence d oes not pr eponder ate against th e finding s of the tr

ial cour t. The judgment of the trial court is affirmed, and the case is re manded to the trial court5

for such further proceedings as nec essary. Costs of the appeal are

assesse d against

the appe llant.

_________________________________ W. FRANK CRAWFORD, PRESIDING J

UDGE, W.S. CONCUR:

____________________________________ ALAN E. HIGH

ERS, JUDGE

____________________________________ DAVID R.FARMER,

JUDGE