### FILED March 24, 1999 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE

MARY F. HORTON, ) HAWKINS CIRCUIT ) Plaintiff/Appellee ) No. 03A01-9809-CV -00287 ) v. ) KINDALL T. LAWSON, ) JUDGE MOUNTAIN LIFE INSURA NCE ) COMPANY, ) ) REVERSED a

nd Defendant/Appel

lant ) REMANDED

Lewis S. Howard, Jr., Knox ville, for Appell

ant. Phillip L. Boyd, Rogersville, for Appellee.



### O P I N IO N

INMAN, Senio

r Judge This is the second appeal of this case. The beneficiary of a policy of life insurance issued by the defendan t filed the action to recover the proceeds. Following the close o

f the plaintiff’ s case, the trial judge directed a verdict for the defendant upon a f

inding that the death of

the insured was not w

ithin the coverage provided. On appeal, we reversed and remanded the case for trial, holding that reasonable minds could differ as to whether the insured’s death was unanticipated and the

unexpected result of

an intentional, volunt

ary act in light of the decision of the

Supreme Cour

t in Harrell v. Minnes

ota Mut. Life Ins. Co., 937 S.W.2d 809 (Tenn. 1996). Upon remand, and relying upon the affidavit of Dr. Clelan d Blake, a forensic pathologist, the trial judge granted summary judgm ent for the plaintiff,1 The appellee, in brief, says that “Michael Horton never saw the shot coming, did not

know the young son was present or that there was a shotgun in his hand.” How she knew the thoughts of Michael Horton, who was killed, does not appear. 2 finding that the insured’s death was accidental within the meaning of the policy and that the plaint iff was entitled to jud gment as a matter of law. The issue is whether su mmary judgment was properly granted. Where there is no conflict

in the evidence as to

any material fac

t, the question on appeal is one of law , and the scope of r eview is de novo with no presumption of correctness. T. R. A. P. Rule 13(d). Gardner v. Ins. P. & Cas. Co., 956 S.W.2d 1 (Tenn. App. 1997). FACTS Michael Horton and Patricia Laws on shared a trailer. On Novembe r 10, 1992, he was shot, but not killed, by his paramour following an argument which had commenced the preceding night. The shooting, by a shotgun, took place outside the trailer. Horton, appar ently enraged,

ran towards the shoo

ter, Ms. Lawson, and atta

cked her. Both of t

hem fell to the ground, arguing and fighting. Thereup

on, Matthew Law son, the younger son of Patricia La wson, came out of the

trailer with a sho

tgun which he placed against the back of Micha el Hor ton’s head a nd ki lled h im, 1 after shou ting “stop beati ng my mother!” Since the insured was shot twice by different people, the District Attorney employed Dr. Cleland Blake, a forensic pathologist, to review an autopsy and deter

mine the firing

pattern of each shot

gun, and to review c

ertain documents and affidavits for the purpose of rendering an opinion as to whether the insured’s dea

th was accidental

. Dr. Blake opined t

hat the death of Hor

ton was accidental

in that it could not have been anticipa

ted “because he

could not have seen the

direction from3

which the weapon w

as fired.” He o

pined that Horton’ s death was caused b y the shotgun blast admin

istered by his pa

ramour’s son

. Dr. Blake reste

d his opinion, in part,

upon the affidavit of

Patricia Lawson who deposed that she and Horton had argued heatedly the night before the shooting, and that the discord continued the following morning. After Horton left the tra

iler she “picke

d up” a .12 gauge shotgu n which was kept for protection from dogs and walked to the door of the trailer. When Horton was about 30 feet distant,

he yelled at her

and she pointed the shotg un at him and pulled the tri gger. At this po int Hor ton was about 9 0 feet aw ay. She deposed that she then dropped the shotgun and began to run. Before reaching the trail

er Horton caught he

r and they fell to the ground. Her son, Matthew, had a .410 gauge shotgun in the trailer. She deposed that he “grabbed the .410 gauge shotgun, ” stepped from behind the door, plac

ed the gun to the back of the head of Michael Horton and killed him instantly. She further deposed that Michael Horton was on the ground with his back to the door when the young son stood w

ith the shotgun, and tha

t he did not know the y

oung son was present or that he had a shotgun in his hands, could not see the young man and had no way of knowing that the young man would put the gun to the back of his head and pull the trigger. LAW The distinction between ‘accidental death’ and ‘accidental means’ has been abolished in Tennessee by the case of Howell v. Minnesota Lif e Ins. Co., 937 S.W.2d 809 (T

enn. 1996). The c

ontrolling legal princ

iple is “if dea

th is the unanticipated and une

xpected result of an

intentional, voluntar

y act, it is4

accidental in the or

dinary and plain sense of the word and recovery is av

ailable under an accidental death insurance policy.” Howell. The appellant argu

es that Patricia L

awson’s affida

vit is unreliable because she could not p

ossibly have known

what Michael Hor

ton knew or did not know at the tim

e of his death; and fu

rther, that the af

fidavit of Dr. B lake is tainted because he based his opinion concer ning accidental dea

th, in part, on the unreliabl e affidavit of Lawson. In this conn ection, we n ote that th e trial judg e’s comment “ [h]er affidav

it is in conflict wit

h another statem

ent she made. So, there is a controvers y as to that.” A trial court must disallow testimony in the form of opinion or inference when the underlying fact s or data indicate a lac k of trustworthines s. McDaniel v. CSX Transportati on, Inc., 955 S.W.2d 257 (Tenn. 1997). It is apparent that the affidavit of Patricia Lawson contradicts her testimony given in the Criminal Court that she rem

embered few

of the details, and

is thus unreliable. Thus, in its present posture,

this case presents t

he affidavit of an e

xpert, some of

whose opinions are based on the facially contradictory, and hence unreliable, testimony of

Patricia Lawson. At this junctur e in the proceedings,

those opinions - based as they are on facially contradictory testimony - are inadmissible and cann ot be considered by us o n summary judgment. See Byrd v. Hall, 847 S.W.2d 208, 215-16 (Tenn. 1993). Furthermore, to the extent that Dr. Blake, a pathologist, attempts to state a legal opinion, he lacks the necessary qualifictions to do so. See McCall v. Wilder, 913 S.W.2d 150 (Tenn. 199 5). We are left w

ith Dr. Blake’ s opinions as a pathologis t regarding the res

ults of the autopsy. This simply establishes that the decedent was shot in the head5

from behind, a

n undisputed mater

ial fact, but cer

tainly not one that

, standing alone, is sufficient to warrant summary j udgment in this case. The trial judge commented that “the data [ Dr. Blake] relies on are disputed and may

not be reliable. T

herefore, I hav

e a problem wi

th his determination that the death was accidental.” We agree. This case is not an a

ppropriate one for s

ummary judgment, be

cause the facts and conclusions

to be drawn theref

rom do not perm

it a reasonable per

son to reach only one conclu sion. See, Carvell v. Bottoms, 900 S.W.2d 23 (T enn. 1995); Byrd v. Hall, su

pra. It was the burden of the plaintiff to support her motion, because a party seeki ng summary

judgment m

ust demonstrate

the absence of any genuine an d material factual issues. Byrd. As winnowed, the undisputed evidence shows only that the insured died from a shotgun blast to the back of his head, which does not justify a summary judgment. The judgment

is reversed and the

case is rema

nded for a trial on th

e merits.

_______________________________ William H.

Inman, Senio

r Judge CONCUR:

_______________________________ Houston M. Goddard, Presiding Judge

_______________________________ Charles D. Susa

no, Jr., Judge