### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 2000 Session THE SHELBY INSURANCE COMP ANY and THE ANTHEM CASUAL TY INSURANCE GROUP, v. HEN RY MATHES, JOANN MATHES and JERRY STEWART Direct Appeal from the Chancery Court for Washington County

No. 32350 Hon. Jean A. Stanley, Judge

FILED JULY 27, 2000 No. E2000-00186-COA-R3-CV

In this decl arator y judgment action the insurance company sought a declaration that an incident giving rise to a suit by Stewart against the insurance company ’s insured Mathes, was notcovered due to an exclusion in the policy. The Trial Judge ruled the exclusion did not app ly, and the insurance company ap

pealed. We affir

m.
Tenn. R. App. P.3 Appe al as of Right; Judgme

nt of the Chancery Co

urt Affirmed. H ERSC HE L P ICKENS F RANKS , J., delivered the opinion of the court, in which H OUSTON M. G ODDARD , P.J., and D. M ICHAEL S WINEY , J., joined. Tho mas C. M cKee , Jo hns on C ity, Ten nes see, for the app ell ant , th e Sh elb y Insu ranc e Co mpa ny. Jerry W. L

aughlin, Green

eville, Tennesse

e for the appelle

es, Henry M

athes and Joann Math

es.

OPINION In this declaratory judgment action, the insurance company relied on the following provision in its policy with its insured, Henry Mathes, to exclude coverag e on a suit brought by Jerry Stewart ag ain st Mathes for injuries sustained in an altercation. The policy provision provides an exclusion for:
any

claim arising out of an intentional act committed by or at your direction. This does not apply to bodily injury or personal injury if:

a. such insured acted with reasonable force and-2- b. such actions were not criminal, malicious or committed in violation of a penal law or ordinance by y ou or with your prior knowledge or consent. The genesis of this action is the suit for damages for personal injuries by Stewart over an incident which occurred at a “cab in” which Mat hes helped build, along with Stewart’s father, and where Mathes and several friends would gather to socialize. By way of background, Stewart’s father had workedfor

Mathes, until

Stewart’s father developed a terminal illness. Stewart’s father then asked Mathes to b rin g his $10 ,00 0.0 0 li fe i nsu ranc e po lic y from w ork to the hospital s o that he could change the beneficiary from Stewart to his brother and sister. Mathes complied, and Stewart then began making t

hreats toward Ma

thes. Mathes was aware of the

se threats,andknew Stewart had been arrested on occasions for domestic violence against his wife and siblings, and that Stewart often carried a knife i n his pocket. Stewart had also cursed Mathes on a previous occasion at the cabin. Mathes was 51 y ears oldat the time and not athletic, and Stewart was approximately 25 or 26 yea rs old and very strong, as he often workedout with weights. From this background, Mathes testified that he was afraid of Stewart and tried to avoid running into him.

On the day of th

e incident, Mathe

s was at the cabin

withtwo other individua ls, one o f whom was Stewart’s uncle. Stewart came to the cabin and started to verbally ab use Mathes. Stewart was asked to leave b y all thre e men, which he belligerently refused to do. Stewart then shoved Mathes twice, stuc k his hand in his pock

et, and threatened

to kill him. At that point, Mathes retreated to the

other side of the r

oom, picked up an a

luminum ball

bat, and backed up against the wall. Mathes desc ribed Stew art as drunk and violen t, but sti ll agi le on his feet. Stewart lunged toward Mathes with his hand in his pocket, and Mathes swung the bat toward Stewart’s outstretched arm/fist. The bat then gla nced off of Stewa

rt’s s houlder and struck his head. He again lunged at Mathes and knocked Mathe s back against th

e wall. Mathes swu

ng the bat downward a couple of times he explained to ge

t Stewart “off of

” him, and Stewart

finally fel

l to the floor. Mathe

s did not strike Stewart once he fell, but he did put his foot on him and hold him down until the uncle helped escort Stewart out of the cabin.

Stewart fought

with the emergency medical personnel when they arrived, and a police officer put a zip-tie cuff on Stewart,

which he broke, a

nd he was then res

trained with stee

l handcuffs. Stewart’s blood te

st at the hospital revealed a blood alcohol level of .292, and a positive result for marijuana. Stewart suffered extensive injuries.

Mathes was charged w

ith aggravat

ed assault, to which he testified he was granted a pretrial diversion with no admission of guilt, maintaining that he had committed no crime.

In ruling in favor of the insured, the Trial Judge said: The Court cannot say

as a matter of law

that Mr. Mathes use

d unreasonable-3- force or that his actions w ere malicious or c

riminal. In exe

rcising hindsig

ht, we often have clearer vision than we have when confronting an emotionally charged incident such as that which took place on September 27, 1997. The Court believes that Mr.

Math es since rely believed on that date that he was acting in self-defense

in the only reasonable way he knew to act at the time. Therefore, Shelby

Insurance C

ompany is

not relieved of its

responsibility

to defend Mr. Mathes against the complaint filed against him by

Jerry Stewar

t. Our review of the fa

ctual determinat

ions is de novo with a presumption o f correctn ess of the tri al cour t’s factual f

indings, unless the

preponderance

of the evidence

is otherwise. Ten

n. R. App. P. 13(d); McCarty v. McCart y , 863 S.W.2d 716 (Tenn. Ct. App. 1992). Questions of law are reviewed de novo with no presumption of correctness. Union Carbide Corp. v. Huddleston , 854 S.W.2d 87 (Tenn. 1993). The insurance compa ny argue s that Mathes acte

d criminally

in dealing with Stewart, because he was charged with aggravated assault and his ac t ions in fact violate Tennessee statutes dealing with assaults, viz., Tenn. Code Ann. §§ 39-13-101 and 102. Mathes was not convicted and didnot plead guilty to the charge. Moreover, Mathes’ a ctions do not establish

as a matter of law that he was guilty of violating the cited statutes, because the statutes also provide that a defe nse to the crime is self-defense. See Tenn. Code Ann. §39-11-611.

Regarding the issue of self-defense, the Trial Court found that Mathes was acting in se lf-defense

at the time of his altercation with Stewart, a factual determination. See Ar terburn v

. State , 391 S.W.2d 648 (Tenn. 1965). On this issue, the Court must give t he Trial Court’s finding great weight on appeal, because the Trial Judge obs erved the witnes ses testify a nd judged their credibility. Adelsperger v. Adelsperger, 970 S.W.2d 482 (Tenn. Ct. App. 1997).

Self-defense

requires the defendant reasona bly believe that the force used is necessary to protect against the force of another and to reasonably

belief that there

is imminent dange

r of death or serious b odily inju

ry, and such danger must be real or honestly believed to be real. See Tenn. Code Ann. §39-11-611. T hese are factual determinations. State v. Renner , 912 S.W.2d 701 (Tenn. 1995). A preponderance of the evidence

supports the Trial

Judge’s finding s th at make it reasonable

for Mathes to believe that he was in imminent danger and that he acted with reaso nable force to protect himself. Tenn. R. App. P. 13(d).

The insurance compa

ny also arg

ues that Mathes co

nti nu ed to use force beyond the point in time that force

was necessa

ry, but Mathes testified that he did not hit Stewart or use any further force agains

thim once Stewart stopped attacking him, and the Trial Court obviously believed Mathes’ testimony concerning all aspects of the self-defe nse assertion. Fin all y, Shelby ar

gues given a ll of the circumsta nces that Mathes d

id not act with-4-

reasonable

force regarding the incident. The Trial Court expressly stated in its Order that it could notfind that unreasonable force was used. Given the evidence, we ca nnot disagr ee with the Trial Court’s finding on this issue. Accordingly, we affirm the judgment of the T rial Court and remand, wit h co st o f th e app eal ass ess ed t o Sh elb y Insu ranc e Co mpa ny.

_________________________ H ERSCHEL P ICKENS F RANKS , J.