### 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 C OMPANY, ) ) CAM PBELL CIRCU IT Plaintiff- Appellee, ) ) HON. C ONRAD TROUTMAN, v. ) JUDGE ) JAMES INMAN a

nd 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 , an d SAMUEL W. BROWN, BECKER, THO MFORD E, BROWN & KNIGHT, P.C., Knoxville, for I ntervening Petitioner-A ppellant.

O P I N I O N Franks, J.
In this decl aratory j udgment action, t he Trial Judge held t

hat the Inmans’ policy

of insurance did not

provide coverage for a wrongful death acti on, because the exclusi

onary clause

for intentional acts appli ed. The intervenor

has appealed. The defendants sought cover age for the civi

l action fil

ed against them by appellant Nelly Buziashvili. The suit w as for the wrong ful death of Buz iashvili’s husband.2 On M arch 10, 19 97, the Trial C ourt granted Buziashv ili’s Petition to Intervene. She had pr

eviously s ecured a judgment against the Inmans in t he United States Distr

ict Court for t

he Eastern Distri

ct of Tennessee, but

the Trial Judge,

as previously no ted, found there was no cover age for the judgmen t.

This case was trie

d by the Judge si

tting 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 corre

ctness of the fi

ndings, unless

the preponderance of t

he 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 conte nds the Trial Court

erred in fail

ing to give proper preclusive effect to the Dist rict Court act

ion. She argues t

hat principl

es of collater

al 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 ar gument is based upon a port ion of the Distri

ct Court’s verdict

finding that t

he 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 couns el to the Tri al Court, the l etter merel

y mentions t

hat the appell

ee 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 tha t the appellee argued that Inman was collateral

ly estopped f

rom denying the act

was intentional , based upon a differe nt 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 revea l that the a

ppellant made the a

rgument below that she i s now making concerning collateral est oppel. In fact , in that s ame letter,her counsel argued that the Dist

rict Court’ s verdict was inconsistent, and thus had no preclusi ve effect on the issue of int

ent. Moreover, the

jury in t he civil case s

pecificall

y found that Ja

mes Inman intentiona

lly used for

ce against the vi

ctim, which caused hi s death.3 Appellant next argue s that the Tri al Court’s concl usions are not supported by t

he record. The Trial

Court held that t

he clause excludi

ng coverage for intentional

ly infl icting inj uries applied. The Trial Court not ed that “the decea sed was struck at least twelve ti

mes before he was shot, and t hat either coul

d have been suffici ent to ha ve cau sed his d eath.”

In re achi ng it s conc lusion, t he Tri al Ju dge con side

red s evera

l it ems which were stipulat

ed or considered wit

hout objection (

with the exception of the aforementioned statement of James In man, which w as not appealed). The Trial Court considered the pol

icy itself, sti

pulations of counse

l, arguments of couns el, 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 establi shed that the insured intended the act and also intended or expect

ed that injur

y would result .” Tenness ee Farmers Mut. In s. Co. V. Evans , 814 S.W.2d 49, 55 (Tenn. 1991) . “The intent i tself may be ac

tual or infer

red from the nature of t

he act and the accompany ing reasonable for

eseeabilit

y of harm.” Id. Moreover, “[i]t i s immaterial t hat the actual

harm was of a different char acter or magnitude or nature

than that int

ended.” 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 aggrava ted assault . Additionall y, the j ury in the civil acti on found that he inte

ntionally 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 twelv e ti mes bef

ore s hooti

ng him.4 We affirm the judgment of the Tr ial Court in i

ts declarat

ion that the insurance policy at iss

ue does not cover appell ant’s judgment agai

nst the policy holder. The cost of the appeal i s assessed to appel lant, 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.