                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                    October 12, 2004 Session

 MID-CENTURY INSURANCE COMPANY v. VIRGINIA WILLIAMS, ET
                         AL.

                A Direct Appeal from the Circuit Court for Hardeman County
                    No. 9551    The Honorable Jon K. Blackwood, Judge



                    No. W2004-00484-COA-R3-CV - Filed January 11, 2005


                                       PARTIAL DISSENT
                                    ________________________

        I write separately to dissent in part from the majority opinion. I agree with the majority’s
analysis of the policy at issue, but disagree with the majority’s conclusion that the evidence
preponderates against the trial court’s finding that the childcare arrangement was not conducted for
profit.

        I certainly agree that the discrepancies in Ms. Williams’ testimony in her two depositions and
her trial testimony “suggest . . . deliberate obfuscation” and, if I were the trial judge, I would feel
constrained to hold as the majority does, that Ms. Williams’ later testimony was an effort to avoid
the consequences of the exclusions from coverage. I am not, however, the trial judge. Here, the trial
court’s credibility determination is not based solely on the deposition testimony, ascertained from
the transcript. It is also based on Ms. Williams’ testimony at trial, derived from the trial judge’s
observation of her demeanor and manner in the courtroom. Given our standard of review for such
a credibility determination, I feel compelled, albeit reluctantly, to affirm the trial court’s finding of
fact that the childcare arrangement was not conducted for profit.

        On this basis, I dissent in part from the majority opinion. In all other respects, I fully concur.




                                                __________________________________________
                                                HOLLY M. KIRBY, JUDGE
