I. Background and Procedural History This dispute was the subject of our prior decision in Tuturea v. Tennessee Farmers Mutual Insurance Co., No. W2006-02100-COA-R3-CV, 2007 WL 2011049 (Tenn. Ct. App. July 12, 2007). The relevant facts as set forth in that opinion and supported by the record in this case are as follows:
This case concerns coverage under three insurance policies: two homeowner's policies and one automobile policy. George Tuturea (Mr. Tuturea) and Plaintiff Gladys Tuturea (Mrs. Tuturea) were a married couple who lived in separate houses located about one mile apart. The [residence on Branch Road] primarily occupied by Mrs. Tuturea was titled in her name, and the [residence on White Oak Drive] primarily occupied by Mr. Tuturea was titled in his name. Mrs. Tuturea's house was insured by Defendant Tennessee Farmers Mutual Insurance Company ("TFMI") under homeowner's policy number HP 5217490. Mrs. Tuturea was the only named insured listed on the policy. Mr. Tuturea's home was insured by TFMI under homeowner's policy number HP 5445550. Mr. Tuturea was the only name[d] insured listed on the policy. Additionally, TFMI issued an automobile insurance policy to Mrs. Tuturea d/b/a Kentucky Lake Realty. The automobile policy covered a Lincoln Town Car and a Dodge Ram, and Gladys Tuturea and George Tuturea were listed on the policy as "covered drivers."
In September 2004, Mr. Tuturea, who was suffering from terminal cancer, set fire to his house in an unsuccessful attempt to commit suicide. The home, personal property, and the two automobiles covered by the policies issued by TFMI were destroyed. At the time, Mrs. Tuturea had [moved] into Mr. Tuturea's home to care for him in his illness. Mr. Tuturea subsequently died in December 2004. TFMI denied insurance coverage for the loss of Mr. Tuturea's house and the two automobiles on the grounds that the policies did not cover the losses because Mr. and Mrs. Tuturea were members of the same household and because the fire set by Mr. Tuturea was not "accidental."
On September 7, 2005, Mrs. Tuturea, individually and as the Representative of George Tuturea, filed a complaint against TFMI in the Circuit Court of Benton County. In her complaint, she alleged TFMI was liable under the policies of insurance for the losses of real and personal property caused by the fire. She also alleged that the fire set by Mr. Tuturea was accidental because he "suffered an insane attack prior to the fire and... his mental state remained that way for a period of time after the fire" and because he "was not in control of his actions due to his mental state." She asserted damages in excess of $300,000 and sought costs and reasonable attorney's fees. TFMI answered and denied liability under the policies and counterclaimed for policyholder bad faith under Tennessee Code Annotated § 56-7-106. TFMI also sought subrogation against the Estate of GeorgeTuturea.
Following discovery, TFMI filed a motion for summary judgment asserting there was no coverage under the policies where, at the time of the fire, Mr. Tuturea and Mrs. Tuturea were lawfully married residents of the same household and Mrs. Tuturea was an insured by definition under each policy. TFMI further asserted there was no coverage under the policies where the fire which destroyed the real and personal property was not accidental, but intentionally set by Mr. Tuturea. In her response, Mrs. Tuturea asserted she and Mr. Tuturea were not members of the same household where "[s]ometimes they would stay in the same house and at other times they would reside apart." She further asserted the fire was accidental because Mr. Tuturea "was determined to be mentally insane at the time in which the fire occurred." She further asserted that the issue of whether Mrs. Tuturea was an "insured" under the policy had "no bearing on whether or not there is coverage under the policies for the house...." She asserted that the issue involved a determination of under which homeowner's policy she was entitled to pursue her claim to recover for personal property that was destroyed. She also submitted that she was entitled to recover under the automobile policy where, first, the fire was not intentionally set by reason of mental illness and second, where although the policy excluded loss caused by the intentional act of a covered person, it stated, "however the interest of the loss payee shown in the declarations shall not be invalidated by such act or omission by a covered person."
Following a hearing... on June 1, 2006, the trial court entered judgment on the matter on July 14, 2006. The trial court concluded that Mr. Tuturea intentionally set the fire that destroyed his house and that, as a member of the household, Mrs. Tuturea could not recover for the loss of the real estate. The trial court further concluded that Mr. Tuturea intentionally burned the motor vehicles when he intentionally burned the house. The court determined that, as a member of the household, Mrs. Tuturea could not recover under the automobile policy for loss of the automobiles. Finally, the trial court determined that the policies were "ambiguous and as a matter of fact come very close to defying comprehension by the average person." It concluded that Mrs. Tuturea's right to recover for the loss of her personal property under the homeowner's policies was controlled by the "innocent coinsured" doctrine under Finch v. Tennessee Farmers Mutual Insurance Company, No. 01A01-9607-CV-00342, 1997 WL 92073 (Tenn. Ct. App. Mar. 5, 1997) (no perm. app. filed).
Tuturea v. Tenn. Farmers Mut. Ins. Co., 2007 WL 2011049, at *1-2. Concluding that its decision presented questions of law in need of appellate review, the trial court ordered the parties to pursue an interlocutory appeal and, in the alternative, directed entry of final judgment pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. Id. at *2.
This Court determined on appeal that the entry of judgment pursuant to Rule 54.02 was improper. Id. at *4. We consequently vacated the entry of judgment and remanded the case for further proceedings. Id. at *5. On remand, the trial court denied TFMI's renewed motion for summary judgment and set a trial date. Prior to trial, TFMI voluntarily dismissed its counterclaim for policyholder bad faith but retained its counterclaim for subrogation against Mr. Tuturea's estate should Mrs. Tuturea recover individually.1
At trial, the parties again focused their arguments on whether the burning was an accident, whether Mrs. Tuturea was a resident of Mr. Tuturea's household, and whether Mrs. Tuturea was entitled to recover as an innocent co-insured. Mrs. Tuturea argued that the policies' intentional acts exclusions did not apply because the burning of the residence was an accident. She argued in the alternative that, even if her husband intentionally burned the residence, she was entitled to recover as an innocent co-insured. She further submitted that she was entitled to coverage under the terms of her individual homeowner's policy because she was a not resident of Mr. Tuturea's household and, thus, his intentional burning of the residence on White Oak Road was not the act of an insured under that policy.
The trial court rejected Mrs. Tuturea's arguments and issued an oral ruling in favor of TFMI at the conclusion of trial.2 The court ruled, in pertinent part:
There are two significant questions, and it's been identified by both the attorneys in their briefs and part has come yet again this afternoon. One of them is was Mrs. Gladys Tuturea a member of the household of George Tuturea, and in this particular case the Court finds without question that she was. Page 5
That is confirmed throughout her own testimony. Although they have had two separate residences, she used one of them on occasion, earlier apparently as an escape conduit, a madhouse or whatever whenever there would be marital rifts or he would lose his temper or any number of other things, but it was a haven for her.
It had been picked up probably because of the fact that she's in the real estate business and has a long history of real estate dealings, but her testimony indicates that since his diagnosis that essentially she was a resident of that house.
She made various statements, and one of them was when the dogs moved in. Another one was that essentially all her--not all her goods, but a lot of her goods had been moved out of the house on Branch Road since such that--and these are her words; not the Court's; not Mr. Trotter's--that it was more or less a warehouse.
This was further confirmed by the testimony of her daughter who testified in this case
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