                IN THE COURT OF APPEALS OF TENNESSEE
                                                                            FILED
                                  AT KNOXVILLE                            March 10, 1999

                                                                         Cecil Crowson, Jr.
                                                                        Appellate C ourt
                                                                            Clerk

TENNESSEE FARMERS MUTUAL                ) C/A NO. 03A01-9808-CV-00246
INSURANCE COMPANY,                      )
                                        ) CAM PBELL CIRCU IT
     Plaintiff-Appellee,                )
                                        ) HON. CONRAD TROUTMAN,
v.                                      ) JUDGE
                                        )
JAMES INMAN and 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, and SAMUEL W. BROWN,
BECKER, THO MFORD E, BROWN & KNIGHT, P.C., Knoxville, for Intervening
Petitioner-A ppellant.




                                     O P I N IO 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 w as for the wrong ful death of Buz iashvili’s

husband.
               On M arch 10, 19 97, the Trial C ourt granted Buziashv ili’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 no ted, found there was no cover age for the judgmen t.

               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

presum ption o f 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 pr evented th e Trial Co urt from fin ding that Jam es Inman acted intentio nally

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, althou gh 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 Inm an that he did not intend to f ire

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 v erdict. T he obje ction w as appa rently ove rruled, a nd wa s not ap pealed .

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.


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               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

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

               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 In man, which w as not appealed). The Trial Court

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


                                             3
               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 C ourt.




                                           __________________________
                                           Herschel P. Franks, J.


CONCUR:




___________________________
Houston M. Godd ard, P.J.




___________________________
Don T. McM urray, J.




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