FILED

March 10, 1999

Cecil Crowson, Jr.

Appellate C ourt

Clerk

 IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

TENNESSEE FARMERS MUTUAL ) C/A NO. 03A01-9808-CV-00246

INSURANCE COMPANY, )

) CAMPBELL CIRCUIT

Plaintiff-Appellee, )

) HON. CONRAD TROUTMAN,

v. ) JUDGE

)

JAMES INMAN and VEANNA )

INMAN, )

)

Defendants, and )

)

NELLY BUZIASHVILI, ) AFFIRMED

) AND

Intervening Petitioner-Appellant. ) REMANDED

JOHN T. JOHNSON, JR., and AMANDA M. BELEW, KRAMER, RAYSON,

LEAKE, RODGERS & MORGAN, Knoxville, for Plaintiff-Appellee.

JERROLD L. BECKER, ARTHUR F. KNIGHT, III, and SAMUEL W. BROWN,

BECKER, THOMFORDE, BROWN & KNIGHT, P.C., Knoxville, for Intervening

Petitioner-Appellant.

O P I N I O 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 was for the wrongful death of Buz iashvili’s

husband.
2

On March 10, 1997, the Trial Court granted Buziashvili’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 noted, found there was no coverage for the judgment.

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

presumption of 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 prevented the Trial Court from finding that James Inman acted intentionally

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, although 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 Inman that he did not intend to fire

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 verdict. The obje ction was appa rently ove rruled, and wa s not appealed. 

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.
3

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

sufficient to have caused his death.”

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 Inman, which was not appealed). The Trial Court

considered the policy itself, stipulations of counsel, arguments of counsel, the

pleadings from both civil and criminal cases, and the judgments and jury forms in

those cases.

The clause at issue states that the policy does not cover “[b]odily injury

or property damage expected or intended by an insured person.” The Supreme Court

has adopted a two-part approach to determine if an intended or expected 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 this case does not preponderate against the Trial Court’s

conclusions. T.R.A.P. Rule 13(d). James Inman was convicted 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.
4

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 Court.

__________________________

Herschel P. Franks, J.

CONCUR:

___________________________

Houston M. Goddard, P.J.

___________________________

Don T. McMurray, J.